Geography Reference
In-Depth Information
The Chinese have a word for law (
fa
), but because the term embodies a strong sugges-
tion of fear of punishment, it is seen as a secondary, almost regrettable, necessity. More
central to Chinese thought has been the enduring Confucian notion that ordering society
and resolving human conflicts should ideally be managed by reliance on proper human
relations (
li
).
1
Controls for human behavior and methods for resolving conflicts should be
internal rather than external. The pervasive pattern throughout Chinese history has been
to rely on
li,
or on people who embody these proper human relationships, rather than
on law in governing society. And while it is likely that the strength of
li
(as opposed to
fa
) is faltering with time, it is far too early to conclude that its influence within Chinese
society is minor.
Unlike in the West, where laws are viewed as impersonal and precise prescriptions
for conduct and dispute resolution that are, at least in theory, applied identically to all
citizens, the letter of Chinese laws is generally balanced against other factors, such as
interpersonal relations, power relations, their overall contribution to larger Communist
Party policy, as well as the two related and particularly Chinese notions of
guanxi
and
saving or giving “face.” In the West, one can hardly imagine a document that calls for
a more literal and objective reading than does a legal contract; indeed, the reasons for
desiring a written contract are precisely so that definitions, rights, and responsibilities
will be stated clearly and any subsequent problems can be resolved free of passions or
other extraneous influences. Yet as recently as the mid-1980s, a sample of economic
judges from Shanghai and Tianjin who were surveyed on what factors they considered
in rendering their rulings on contract disputes, offered an old Chinese adage:
he qing, he
li, he fa
(meaning, “according to people's feelings, according to propriety, and accord-
ing to law”). These judges did not suggest ignoring the legal code entirely; they merely
relegated it to third place, behind “the relationship of the [parties] and the moral demands
of accommodation.”
2
Chinese laws are usually written in language that a Western lawyer would find im-
possibly vague. General principles are provided, directions are hinted at, but precise
definitions, specific criteria, and bounds of acceptable conduct are not written down.
In Western culture, we fully expect that much of our day-to-life will be conducted with
some subjectivity and flexibility; we resort to legal interpretations only when finality,
precision, and compulsion are required. Billboards erected by government-run highway
departments might first attempt to persuade drivers to use their seat belts on the grounds
of personal safety, but if that fails, they will resort to the one threat virtually guaranteed
to capture the attention of an otherwise thoughtless driver: “It's the law.” The driver might
not know the exact wording of the law, but he is likely to be familiar with the compulsory
nature of the legal code: one can either satisfy the law's requirements, or be liable to the
law's prescribed punishment. Whereas Western laws and regulations define impermissible
behavior with language such as “prohibit” and mandate required behavior or protocol
with words such as “must” or “shall,” many Chinese laws opt for using words reasonably
translated as “should” or “ought to,” particularly when referring to the responsibilities of
government agencies.
3
The clarity expected by the observer familiar only with Western
legal concepts is expressly absent from such language.
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