"turn toward a system of liberties, democracy, and rule of law...

[Jeikun]

Dagnabbit... I wrote this reply and with the click of a button erased it I don't have time to recreate, so I'll just summarize what I meant to say.

 

Chinese fa jia legalism: Not so much like the western concept of rule of law. More like a totalitarian ideaology, that squashes any idea of personal freedom or liberty. The idea of law being above the ruler is there, but in support of a harsh meritocracy that viewed common people as evil and stupid.

 

Imperial China... hardly purged of legalism, it's far more ingrained in Chinese law and thought than 15 years of Qin, though coated in a shiny confucianist shell so Chinese would continue to swallow it. I looked and found a Chinese term "Èå±í·¨ÑY"

 

Confucianism, according to some isn't necessarily anti-democrtic, and in some ways can be interpreted to support it (see some of David's links).

 

I had composed it much more eloquently, but since I deleted it that's the gist.

Edited January 15, 2009 by Jeikun (see edit history)

[david_dawei]

What seems improbable to me is that the modern Chinese really considers their 5000 years of history when deciding what to have for breakfast this morning... B) After the Cultural Revolution, after following Deng's "to get rich is glorious" dictum for the past 3 decades...How much of the distant past does the average person carry with them???

I don't think any amount of explanation will satisfy you when you simply want to apply it to breakfast decisions... but maybe start with why some eat dumplings at midnight of new yeasr's eve There is too much history to speak about and how it's ripple effect occurs.

 

I tend to think that the west likes to consider history like waste going down the gargage disposal. We like to send it off with some noise but hope to never see it again; The chinese see history as something that is recycled to some degree...

 

Chinese fa jia legalism: Not so much like the western concept of rule of law. More like a totalitarian ideaology, that squashes any idea of personal freedom or liberty. The idea of law being above the ruler is there, but in support of a harsh meritocracy that viewed common people as evil and stupid.

 

Imperial China... hardly purged of legalism, it's far more ingrained in Chinese law and thought that 15 years of Qin, though coated in a shiny confucianist shell so Chinese would continue to swallow it.

right.. it predates rule of law; it is the chinese approach of simply rule by law based on their circumstance/culture/history.

 

The legalist did believe the opposite of Confucius concern man's original state; they believed man was originally more depraved (self-seeking) than good BUT that man could become good... but law was the rudder which should steer them (and punish them). Thus, in theory, even the emperor could be selfish and self-seeking and the thus, nobody should be over the law. Law should be standardized and self-sufficient for the legalist. The problem was that the laws were cruel and oppressive and coincided with the overly ambitious projects of the time. It also produced the self-fulfilling prophecy; the men which were subject to the tryanny took self-seeking (survival) steps and returned an eye for an eye.

 

Society needs laws, so there is no debating that law remained in chinese history. The Tang Code was a major work partly based on the Northern Zhou (The Zhou dynasty rites were what Confucius was obsessed with reestablishing), but was a conflating of legalism and Confucian political theory. Every culture could be said to have to swallow the rules of their land... some even have to gulp.

[rogerluli]

even the emperor could be selfish and self-seeking and the thus, nobody should be over the law. Law should be standardized and self-sufficient for the legalist.

 

Hmmmm...Did you mean "nobody should be ABOVE the law" David??? My simple understanding of Confucianism is that high officials were indeed above the law...And now it seems from the article I referenced this morning on car accidents in China that the rich are also above the law...

[Jeikun]

even the emperor could be selfish and self-seeking and the thus, nobody should be over the law. Law should be standardized and self-sufficient for the legalist.

 

Hmmmm...Did you mean "nobody should be ABOVE the law" David??? My simple understanding of Confucianism is that high officials were indeed above the law...And now it seems from the article I referenced this morning on car accidents in China that the rich are also above the law...

 

 

Well in this case, David was referring to fa jia, not confucianism.

[Jeikun]

What seems improbable to me is that the modern Chinese really considers their 5000 years of history when deciding what to have for breakfast this morning... After the Cultural Revolution, after following Deng's "to get rich is glorious" dictum for the past 3 decades...How much of the distant past does the average person carry with them???

I don't think any amount of explanation will satisfy you when you simply want to apply it to breakfast decisions... but maybe start with why some eat dumplings at midnight of new yeasr's eve There is too much history to speak about and how it's ripple effect occurs.

 

I tend to think that the west likes to consider history like waste going down the gargage disposal. We like to send it off with some noise but hope to never see it again; The chinese see history as something that is recycled to some degree...

 

Chinese fa jia legalism: Not so much like the western concept of rule of law. More like a totalitarian ideaology, that squashes any idea of personal freedom or liberty. The idea of law being above the ruler is there, but in support of a harsh meritocracy that viewed common people as evil and stupid.

 

Imperial China... hardly purged of legalism, it's far more ingrained in Chinese law and thought that 15 years of Qin, though coated in a shiny confucianist shell so Chinese would continue to swallow it.

right.. it predates rule of law; it is the chinese approach of simply rule by law based on their circumstance/culture/history.

 

The legalist did believe the opposite of Confucius concern man's original state; they believed man was originally more depraved (self-seeking) than good BUT that man could become good... but law was the rudder which should steer them (and punish them). Thus, in theory, even the emperor could be selfish and self-seeking and the thus, nobody should be over the law. Law should be standardized and self-sufficient for the legalist. The problem was that the laws were cruel and oppressive and coincided with the overly ambitious projects of the time. It also produced the self-fulfilling prophecy; the men which were subject to the tryanny took self-seeking (survival) steps and returned an eye for an eye.

 

Society needs laws, so there is no debating that law remained in chinese history. The Tang Code was a major work partly based on the Northern Zhou (The Zhou dynasty rites were what Confucius was obsessed with reestablishing), but was a conflating of legalism and Confucian political theory. Every culture could be said to have to swallow the rules of their land... some even have to gulp.

 

 

But the Sui Dynasty which preceeded the Tang made some effort to bring back legalism. And although punishments were reduced quite a bit during the Tang dynasty they left much of it in place.

 

On a larger scale, laws in the imperialist era were still harsh and based on legalist ideas despite having the mask of conficianism, or in some dynastys, buddhism hung over them.

 

For that matter, though once true opposites according to some Confucian scholars some legalist ideas blended in with Confucinism after the fall of the Qin dynasty.

 

More recently (as I read on Wikipedia just now anyway) Mao had compared himself to Qin Shi Huang and publically approved of some legalist methods.

 

I would gather from these things, that while pretty much universally reviled by Confucian scholars, Legalism may have ceased to be an independant school of thought in China, but has never truly died.

[Guest Rob & Jin]

I think if any one does not believe the development of west European and USA RULE BY LAW is not really about constraining the common citizen behaviors while excusing the behaviours of corporate and political corruption is smoking something too strong .

 

Better let china come up with something bettter, why would they want to adopt such a currupt and socially injust system as we have ?

[Jeikun]

I think if any one does not believe the development of west European and USA RULE BY LAW is not really about constraining the common citizen behaviors while excusing the behaviours of corporate and political corruption is smoking something too strong .

 

Better let china come up with something bettter, why would they want to adopt such a currupt and socially injust system as we have ?

 

 

Not smoking anything, but not with you on that one. I do agree that there is much corruption and abuse in our system, and in all government systems. I also agree that something better would be nice, maybe govenment controlled by an infallible AI computer? I can't think of a better system, or I wouldn't be working here for a living... But for the development of the concept of Rule OF law being DESIGNED to constrain the commom citizen and excuse corruption? I can't be that cynical even on a bad day, sorry.

[rogerluli]

I think if any one does not believe the development of west European and USA RULE BY LAW is not really about constraining the common citizen behaviors while excusing the behaviours of corporate and political corruption is smoking something too strong .

 

Better let china come up with something bettter, why would they want to adopt such a currupt and socially injust system as we have ?

 

Are you really serious Rob to suggest that western systems are more corrupt than China???

 

From where I sit it isn't even close. Corruption in China is just how things are done...it is not the exception to the rule, it is the rule... It is so wide and so deep it is hard to imagine how it can be removed...

[rogerluli]

Perhaps a groundbreaking essay on Freedom of Speech in China by Professor Shen Minte of China Communications Media University. Published in the Beijing Daily which usually adheres very tightly to the party line therefore one imagines that there must be some support even in the upper levels of the CCP for a truer Freedom of Speech in China...

 

"Freedom of speech" is written into the constitution of our nation. But some comrades do not have a deep understanding about it. For example, does "absurd speech" enjoy the freedom of speech? That is a frequently asked question. If you reply without thinking that "How can absurd speech be given the freedom?" you will fallen into a "trap." This "trap" is an unanswerable question: "Please tell me how do you know that an unspoken speech is 'absurd' or not, so that you can take away its freedom of speech beforehand?" I think that unless you claim that you are an omniscient god who can judge unspoken speech, you will have fallen into this impossible "trap."

 

I want to to remind people about a piece of common knowledge: A certain speech (here, I am referring to rational speech with some basis as opposed to irrational invectives without any basis) cannot be judged as absurd versus not (or progressive versus reactionary) before it is articulated. The pursuit of truth is only possible if it is allowed to be articulated and then people can think, classify and judge its nature. I think this is freedom of speech. This is also the famous saying of Mao Zedong about letting one hundred schools speak.

 

This leads to another piece of common knowledge: when a certain speech comes out, people begin to think and classify, but they may not be able to judge its nature yet. This is particularly true of certain ideas that appear unconventional or are unacceptable to the majority of the people at the time. Frequently, it will take a certain period of time in history before people become convinced of its veracity (or absurdity). During this process, the worst thing is for some "authorities" to emerge and make a "truth judgment" in the form of a single conclusion about the rights and wrongs of the matter. Then everybody hears that call and engage in either "effusive praises" or "mouth-and-pen condemnations." The reason why this is the "worst thing" is that the price may be huge, possibly including bloodshed and loss of lives.

 

The most unforgettable and outstanding episode is the population theory of Mr. Ma Yinchu. If it had not been declared as "counter-revolutionary Malthusian population theory" and subjected to mass criticisms, there might have been 300 million people fewer in China today. Instead, the actual population pressure will be with us for at least a century. All the problems today about job opportunities, universal education, healthcare insurance and so on are related to this population pressure.

 

Another unforgettable and outstanding episode is the doubts that Zhang Zhixin raised about the Cultural Revolution. The relevant leaders determined that this was "counter-revolutionary speech that maliciously attacked the Cultural Revolution" and it was also routine at the time to condemn people on the basis of speech alone. This resulted in the tragedy of Zhang Zhixin having her throat cut and executed by a firing squad. This tragedy could be avoided if each Chinese person had the freedom of speech as opposed to "the highest directives" being issued from above and followed closely from below. The ten years of calamity resulted in the collapse of our culture, the loss of morality and the creation of all the habits of totalitarianism. These remaining ills are still being eradicated with difficulty in certain domains today.

 

This shows that whether a speech is absurd versus not, or progressive versus reactionary, cannot decided solely by the authorities. Historical practice will decide. Over the last thirty years, the biggest spiritual achievement of the Chinese people is to bring back the perspective on truth in Marxism -- practice is the sole standard for determining the truth. Without this achievement, we cannot begin to discuss any other achievement. There are two keywords here. First, it is about 'practice' without any reference to any authority. Secondly, it is the 'sole' criterion to the exclusion of all others. So we now understand the speech of Ma Yin-chu, we understand the speech of Zhang Zhixin and we understand what those speeches against them were. We also know how to use freedom of speech to realize the pursuit of truth, to protect the security of the people of China, to advance and develop healthily and to avoid the path that we once treaded and for which we paid a heavy price.

 

Finally, I should point out one fact: those who opposed the speeches of Ma Yinchu and Zhang Zhixin actually enjoyed the maximum freedom of speech themselves. Based upon the standard of freedom of speech today, we need to continue to give freedom to those kinds of speech. If there is only one voice, then truth cannot be recognized and developed. All speeches exist at the same level (but that does not mean that they will all be acted upon or carried out) and they enjoy the right to be expressed freely. We should earnestly follow these important requirements concerning the freedom of speech according to our constitution.

 

http://www.zonaeuropa.com/200901b.brief.htm

[david_dawei]

even the emperor could be selfish and self-seeking and the thus, nobody should be over the law. Law should be standardized and self-sufficient for the legalist.

Hmmmm...Did you mean "nobody should be ABOVE the law" David??? My simple understanding of Confucianism is that high officials were indeed above the law...And now it seems from the article I referenced this morning on car accidents in China that the rich are also above the law...

Well in this case, David was referring to fa jia, not confucianism.

yep. Never thought about this.. but the legalist thought man originally deprived (like western religion); both of these demaned a rule by law in order to keep him in check. Those in the east, like Confucius, who held that man was original good seek to define a moral guide rather than a legal guide to promote social harmony and order.

 

 

But the Sui Dynasty which preceeded the Tang made some effort to bring back legalism. And although punishments were reduced quite a bit during the Tang dynasty they left much of it in place.

 

On a larger scale, laws in the imperialist era were still harsh and based on legalist ideas despite having the mask of conficianism, or in some dynastys, buddhism hung over them.

 

For that matter, though once true opposites according to some Confucian scholars some legalist ideas blended in with Confucinism after the fall of the Qin dynasty.

 

More recently (as I read on Wikipedia just now anyway) Mao had compared himself to Qin Shi Huang and publically approved of some legalist methods.

 

I would gather from these things, that while pretty much universally reviled by Confucian scholars, Legalism may have ceased to be an independant school of thought in China, but has never truly died.

Interestingly, the Sui and Qin have similiarities: Both were short lived and followed by a long period of more stabilty and order. both put tremendous burdens on the people and engaged in oppressive wars (four attempts to attack what is now Korea all failed) which lead to famine and an inevitable defeating counter-attack (they didn't learn the Qin lesson of vengence). Both dynasty's fell shortly after their ruthless, tryannical emperor died.

 

But both did unify the land following division and sought further stablilty through economic (silk roads and trade opened) and/or political reform and development. The Sui devised a new political system as well borrowing from the legalist (legal reform) and Han (reinstated the central government system). In typical chinese fashion, they looked to the past and took what appeared to work, added something new and re-mixed it. This is a tried and tested method for thousands of years.

 

Buddhism did flourish and now the three (with Confucianism and Daoism) were at once mixing for good... fully realized in the Tang... where law was reformed again in the Tang Code.

 

Concerning opposites of thought, we should realize that the chinese are more apt to mix opposite thoughts since they will find something in each case which makes sense. That we say "Confucianism" has ruled the minds of chinese for 100 years is actually wrong; It is really called "Neo-Confucianism" since it is a blend of Daoism, Buddhism and Legalism... but the term just isn't used outside of pure philosophical discourses. Scholars of one school will always have something to revile in another's... but at least a result of a long history of reform has taught them to take parts from school which seem to have merit.

 

I think the struggle is really about what philosophy seeks to achieve and what law seeks to achieve. It seems that the history of the chinese emphasizes the former more (Confucian had a "Code of Rites" formally established) compared to the US which prefers the latter form of punishment and retribution. Although both might attempt to be establishing a form of social order, the former invests in people and the latter maybe divests people. IMO, this is the crux of the issue which is a philosophical argument and not a legal one; I don't think we see this as something to compare in our country, so sometimes the comparison is hard to make clear but this is exactly what the chinese of old were debating...

[GZBILL]

"No big deal, a million yuan will suffice to settle the case..."

 

The Rule of Money vs The Rule of Law

 

http://www.atimes.com/atimes/China/KA10Ad02.html

 

Not always.

 

Sometimes it's the Rule of Money vs. The Rule of Runaway Legal Absurdity.

 

By any chance Bill do you drive a Bao Ma???

 

Actually, yes.

 

And stay out of my way or I'll mow your ass down.

[GZBILL]

even the emperor could be selfish and self-seeking and the thus, nobody should be over the law. Law should be standardized and self-sufficient for the legalist.

 

Hmmmm...Did you mean "nobody should be ABOVE the law" David??? My simple understanding of Confucianism is that high officials were indeed above the law...And now it seems from the article I referenced this morning on car accidents in China that the rich are also above the law...

 

Do you actually know what the law is in China?

 

There are no multi-trillion $ wrongful death or personal injury awards. There are no billion $ libel or defamation judgments.

 

If somebody is injured, they might receive the cost of their medical care, lost wages, legitimate expenses and maybe, at best, a few thousand $ extra. Is it too little, perhaps.

 

On the other hand, in the States there are million $ awards just for pain & suffering. Is it too much, perhaps.

 

Wouldn't you feel better if you knew WTF you were talking about?

[lilac6451]

This has turned into a Chinese history topic, pretty interesting...

[rogerluli]

"No big deal, a million yuan will suffice to settle the case..."

 

The Rule of Money vs The Rule of Law

 

http://www.atimes.com/atimes/China/KA10Ad02.html

 

Not always.

 

Sometimes it's the Rule of Money vs. The Rule of Runaway Legal Absurdity.

 

By any chance Bill do you drive a Bao Ma???

 

Actually, yes.

 

And stay out of my way or I'll mow your ass down.

 

So would it cost you more to mow my ass down with your bao ma than a Chinese???

[Dan R]

Just when the thread catchs Lilac's attention and she calls it interesting, you guys get into a school hallway fight. Stop slinging the chodofu and get back to topic

 

China has more influences acting on the present nation than just the social and legal structure of the philosophers.

 

To me it goes even deeper and probably even earlier in history. I think the Chinese pragmatism as opposed to the Western idealism has much to do with it. And yes I do know these are not absolute on either side and that the opposite does exist in both. I am referring to the greater influence on the ordinary populus.