This research considers the development of law in order in ancient China. The information gleaned on this subject will then be applied to the nature of Judge Dee’s practice. Through a careful consideration of what has been written about law and order in ancient Chinese society, it will be possible to provide a more integral understanding of how these issues have impacted the development of modern society. Further, by examining the specific context of law and order in ancient Chinese society, it will be possible to correlate these issues to the practice of Judge Dee.
Law and Order in Ancient China-An Overview
Critically reviewing what has been written about the development of law in modern China, researchers note that many Western scholars have speculated that modern law and order in China has been the result of the imposition of Western ideologies on social development (Peerenboom, 2002). This assertion is often made because Western scholars have not given enough attention to the historical development of law during the imperial age of China. As such, when Westerners look at the system of law and order that has developed in China, many are not able to see the direct correlations that exist between Chinese society and its past. Often, Chinese history is one that is mired in obscurity for Western scholars.
Peerenboom (2002) goes on to note that the earliest theories of Chinese law and order were classified as lizhi and fazhi. Here the principle difference lies in the context of li and fa. Li, is traditionally defined as rites or rituals while fa is defined as law. Even though there are specific distinctions between li and fa, both are viewed as integral components to the development of law and order in the state. Peerenboom attempts to codify these differences by make the following observations:
Lizhi, traditionally associated with Confucianism, refers to political order predicated on and achieved primarily by reference to the li or rites, that is, traditional customs, mores, and norms. In contrast, fazhi, associated with Legalism, refers to political order attained primarily through reliance on fa or laws, that is, publicly promulgated, codified standards of general applicability backed up by the coercive power of the state (p. 28).
What this effectively demonstrates is that the processes of law and order that have been developed in modern China derive from both religion and legal mandates. This issue is critical for examining the development of law and order in the society.
Given the importance of religion in the development of law and order, Peerenboom specifically examines the context of lizhi which can be found in the basic tenets of Confucianism. Under Confucianism, Peerenboom asserts that the following arguments about law and order were made: “Lead the people with government regulations and organize them with penal law (xing), and they will avoid punishments but will be without shame. Lead them with virtue and organize them through the li, and the people will have a sense of shame and moreover will become humane people of good character” (p. 28). When placed in this context, it becomes evident that the imposition of law and order in ancient Chinese society was geared to reflect a social component of understanding that made each individual aware of their larger obligation to the community. Through the development and association of shame with the process of maintaining law and order, Chinese authorities had a psychological weapon to fight the development of deviant behavior.
While the basic tenets of Confucianism were developed as a central means to impose a high degree of social order, researchers note at the same time legal philosophers were making a strong case for the establishment of fa as the central means to ensure social law and order (Yao, 2000). Specifically, Yao notes that the principle differences between li and fa fell in the context of how the state should govern. “Within the application of Legalism, universal laws punish anyone who violates them to maintain social order; for Confucianism, universal virtues lead anyone who learns and practices them to goodness” (p. 70). Legalism also provided a salient method for the state to acquire wealth and power. Thus, it is not surprising to find that legalism in the imperial age of China quickly became a powerful force for state government. Yao argues that legalism was able to rival Confucianism for a number of years.
Although Confucianism and the practice of li became dominated by the structures of legalism, scholars working in the Confucian tradition attempted to make changes to Confucianism that would allow this practice to better meet the concrete needs of society. Bell and Chaibong (2003) in their examination of the evolution of Confucianism and law and order in China make the observation that as Confucianism began to decline in the imperial era, scholars quickly worked to redevelop the practice, such that it had more relevance for the issues and problems facing society at that time. As such, when China began to modernize and formally establish its Constitution, the principles of Confucianism that had been established during the end of the imperial era had a significant influence on the specific practices developed with respect to legal issues. “People learn to relate to one another and define one’s place in family and society in terms of li. As such, li constitutes for East Asians…nomos, a normative universe, or a structure of meaning…the fabric of meaning in terms of which human beings interpret their experience and guide their action” (p. 47).
When framed in this context, it becomes quite evident that the issue of li is one that is aimed toward developing a social conscious for each individual in society. Confucian teachings support the idea that more than just laws are needed to ensure the well being of society. When the context of li is used as a central means to link individuals in society to one another, the specific methods of legalism that are needed become almost nonexistent. This is because when individuals realize the importance of their role in society and follow this role, they are able to develop an understanding and awareness of what is morally right. Confucianism saw this as critical to the development of law and order in society. Without this component, the context of law loses a critical aspect that is necessary for that state to maintain some degree of control over social development.
As china marched toward modernization the challenge of creating a stable social order remained quite prominent. Corrin, Grasso and Kort (1991) report that as early as the 1800s, the Chinese began translating ancient texts to establish law and order in modern society. These efforts culminated in the development of a modern legal system that was notably different than what had been developed in the West. As noted by these authors, The legal system in China did not function as it does in the modern West, where a well-developed civil code regulates relations between individuals and law is viewed as protecting the individual against not only criminal acts committed by other citizens but against abuses by the state. In China, law was subordinated strictly to the interests of maintaining order” (p. 24). These authors go on to note that the central context for the development of law and order in China was predicated upon Confucian principles: “The Confucian principles according to which the state justified its existence were rooted in a dualistic vision of the world, one which recognized that the secular sphere of politics had to be subordinated to a higher set of moral standards” (p. 25).
Although Confucianism had found its way into the development of modern law and order, researchers do note that by the beginning of the twentieth century, movements had been started to end the use of Confucian thought in the context of law and order (Michael, 1986). Michael notes that The main attack against Confucianism came in 1919 with the so-called May Fourth Movement, when Chinese students, first in Peking and then throughout the country, protested the Chinese humiliation at the negotiations of the Peace Treaty of Versailles at the end of World War I…” (p. 186). As the Chinese government began to react to both internal criticisms of Confucianism and external pressures to develop a modern political ideology, Michael notes that Confucianism began to fall out of favor in the context of Chinese culture:
All Chinese history had to be forced into the Procrustean bed of the doctrine, and thus ancient China was a society of slavery transformed to feudalism by the first emperor. As a consequence Confucius was depicted as having been reactionary in defending slavery against the feudalism introduced by the first emperor-demonstrating how far doctrine could be made to prevail over historical realities (p. 213).
As such, the modernization of China has brought with it an unfortunate abandonment of the principles of li, which were once seen as critical to the development and maintenance of law and social order.
What the basic history of the development of law and order in China clearly demonstrates is that up until the early twentieth century, China’s rulers embraced the Confucian ideal of li. Although this principle was clearly dominated by legalism, it is clear that Chinese scholars attempted to reconcile Confucianism and Legalism in an effort to create a morally correct society. Even though a history of the modern development of China does indeed demonstrate that the Confucian principles of li have fallen by the wayside in recent years, it is evident that the tradition of li remains an integral part of culture in China. Hu (1960) argues that, “Although Confucianism was but one school of thought that developed during the remarkable age of Chinese philosophy between the sixth and third centuries B.C., it can truly be called the dominant element in Chinese intellectual life throughout most of the two-thousand-year span of Chinese history…” (p. 2).
Practice of Judge Dee
With the basic context of law and order in China elucidated, it is now possible to apply this information to the practice of Judge Dee. Judge Dee is a fictionalized character created by Robert van Gulik in the late 1950s. In Gulik’s novel, Judge Dee presides over court cases in the Ming Dynasty of Ancient China. The character of Judge Dee was created based on the life of Ti Jen-chieh, who was a magistrate during the Tang Dynasty. In each novel, Gulik depicted Judge Dee as a newly appointed member of the state court. As such, Dee was free to examine specific situations in the context of more universal ideologies rather than the specific cultural norms that were present in the city (Judge Dee, 2006).
According to Kahn and White (2003) the specific works that were created with respect to the Judge Dee character focus on specific cases with plot twists in which Judge Dee and his staff are forced to examine the case “free of emotional involvement in the investigations they undertake” (p. 382). In an effort to provide a general overview of the cases encountered by Judge Dee, Kahn and White go on to provide a chronology of the early works produced by Gulik. These works include the following:
– The Chinese Bell Murders. This text, which was published in 1958 and is set in 1714. In this novel, Judge Dee confronts a heinous rape/murder which occurred in the Pooyang district.
– The Chinese Gold Murders: This text was published in 1959 and is set in 1715. In this novel, Judge Dee is appointed as a magistrate to the Peng-lai district of China. Problems arise when Dee’s predecessor is murdered, a bride disappears and a village ruffian is found murdered.
– The Monkey and the Tiger: This novel was published in 1965 and takes place in China in 1717. This novel is a collection of two short stories that follow the Judge as he searchers for the murderer of a vagabond found murdered in a specific manner.
– The Lacquer Screen. Published in 1970, this text follows Dee in 1717 China into the court of another magistrate. Overlapping crimes make it difficult for Dee to determine who the murder is. Dee soon discovers that the magistrate’s wife has been murdered.
Although Gulik produced several novels about Judge Dee, these provide an overview of the general story lines that were covered in these stories.
While the specific context of Gulik’s novels are similar in many instances, Hurst (1996) notes that the wide range of characters used in the novels coupled with the different story lines that are used to expand understanding of Chinese society provide a dynamic interplay that often leaves the reader wondering how Judge Dee can respond the way that he does. Specifically, Hurst notes that, “Dee who is a reasoning man thinks it is reasonable to preserve society on its inequitable basis…” (Robert van…). Hurst goes on to argue that, “Dee’s society is one in which women are oppressed – polygamous wives are kept in seclusion, brothels are normal, the selling of daughters to meet debts is common. On the other hand the Confucian emphasis on family order and continuation provides some re-assurance” (Robert van…). Thus, even though some of the decisions made by Dee may seem unusual to the reader, in the end Dee is attempting to utilize the basic context of Confucian social order as a central means for decision making.
What is perhaps most interesting about the actions of Judge Dee is that they force the reader to look beyond the specific context of Western conceptions of society so that they truly understand what is occurring in Chinese society. The context of Confucianism as it relates to the larger context of Chinese society is an issue that is difficult for many Westerners to grasp. Only by examining Judge Dee’s actions in the context of the historical development of ancient Chinese society is it possible to fully understand the process of decision making at it occurs in Gulik’s novels. Hurst, in her examination of the world in which Judge Dee lived notes that the social order established clearly creates a paradox for the individual:
In many ways the world of Judge Dee was totalitarian because everything reinforced the social order. There was no escape from it. All who lived within it were free but there was no freedom without it, and again it makes this world strange by showing that it could continue even while forces which have undermined other cultures thrived within it.
The only way for Gulik to reconcile these issues was to portray how this society worked in real life. Through the actions of Judge Dee, the reader is given a clear picture of how social order and law are maintained in the context of Confucian rules.
Synthesis of the Information
When the ancient history of Chinese society is examined in a historical context the manner in which law and social order were developed and maintained in ancient China is clearly elucidated. Although the some Chinese scholars fought to create a pure legalist system-somewhat similar to what currently exists in the West-many scholars believed that law and social order should contain a moral component that was developed in each and every citizen. As such, Confucian scholars worked to develop a form of Confucianism that allowed for the development of a social order predicated upon specific moral issues that were inherent to individual behavior. While this process has some appeal in the context of creating a more uniform and just society, what is revealed from the practice of Judge Dee is that a paradox has been created as a result of the imposition of Confucian thought.
To illustrate this point, Hurst notes that Dee is portrayed in the novels as an analytical and logical man. Yet despite this disposition, Dee often makes judgments that appear to be out of line with this analytical demeanor. What it concluded from a comparison of Dee’s logic with his actions is that he is responding to the higher calling of the Confucian principles that had been established in the development of law and social order in China. In many respects it appears as if Gulik was attempting to elucidate the manner in which Confucian thought stood in direct contrast to the analytical mindset of the analytical thinker. Although it is evident that Gulik was indeed attempting to illustrate the difference that exist between Chinese and Western ideologies of law and order, by making his novel’s protagonist a clear and logical thinker, it is evident that Gulik was also attempting to explicate the complexities associated with living a life that followed the Confucian ideologies of li. An examination of this paradox is critical if individuals are to fully understand the true nature of the law and order that was created in the context of ancient China.
Conclusion
In the end, the creation of Judge Dee by Gulik provides an integral and necessary insight into the manner in which the basic principles of law and order adopted by the Chinese shaped social outcomes during the development of China. Judge Dee’s actions clearly demonstrate the problems that arise in the context of adhering to a larger moral code that cannot be effectively dictated by the context of a legal statue. In many cases, Judge Dee had to make a decision in a case based on the existing moral code of Confucianism that served as the basis for the development of society. When this occurred, Judge Dee had to put aside his own personal feelings for logic and reasoning. Only by placing these issues by the wayside could Judge Dee make a decision that would essentially fit into the larger context of moral aptitude that was developed by society.
The complexities revealed in the character of Judge Dee do in some ways illustrate why Chinese society had to develop a more structured legal code to maintain social order. As China faced international pressure to modernize in the early twentieth century, the specific context of applying moral codes to law and order began to lose their appeal. This is especially true in the context of the communist framework that was subsequently imposed by Chinese leadership. In short, the complexity of modernization made it too difficult for China to continue to maintain the paradox that had been created under the ancient Chinese system of law and order. Thus, it is not surprising to find that modernization is what finally served as the basis for destroying the roots of Confucian thought in the practice of law and order.
In the end, it is evident that the moral codes developed and instituted in the context of ancient China are still an integral part of the culture that exists in China. However, it is also evident that, the legalist system that ancient scholars supported in the early years of China’s development have finally come to fruition Overall, it appears is if this system is, and will continue to be, the only salient method for governing in such a large, diverse and complex society.
References
Bell, D.A., & Chaibong, H. (2003). Confucianism for the Modern World. England: Cambridge University Press.
Corrin, J., Grasso, J., & Kort, M. (1991). Modernization and Revolution in China. Armonk NY: M.E. Sharpe.
Judge Dee. (2006). Wikipedia. Accessed April 18, 2006 at: http://en.wikipedia.org/wiki/Judge_Dee.
Hu, C. (1960). China: Its People, Its Society, Its Culture. New Haven, CT: HRAF Press.
Hurst, L.J. (1996). Robert van Gulik’s Judge Dee Stories. VECTOR: The Critical Journal of the British Science Fiction Association. Accessed April 18, 2006 at: http://dspace.dial.pipex.com/l.j.hurst/gulik.htm.
Kahn, M.A. (2003). Justice Denoted: The Legal Thriller in American British and Continental Courtroom Literature. Westport, CT: Praeger.
Michael, F. (1986). China Through the Ages: History of a Civilization. Boulder, CO: Westview Press.
Peerenboom, R. (2002). China’s Long March Toward Rule of Law. England: Cambridge University Press.
Yao, X. (2000). An Introduction to Confucianism. England: Cambridge University Press.
