Abstract
Readers familiar with scholarship on Chinese rural society know that field researches on North China villages are far less than those of South China.
As to Chinese public life, it is the judicial system (if it could be called a system) that needs urgent reform …
Sun Yat-Sen (1984, p. 1)
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Notes
- 1.
For convenience and to follow anthropological conventions on village research, I used “Li Village” as a fictitious name to replace the village’s true name where my research was conducted. This fictitious name was used in all related documents when referring to the village. Villagers’ names mentioned in later chapters are all fictitious as well.
- 2.
Though the court’s text materials may be produced by legal experts and cannot reflect the complexity of case hearing process, they can show some basic facts, as well as the agreement or disagreement among judges, plaintiffs and defendants. On this point, Zhao Xiaoli was discerning in arguing the “fabrication” and “unreality” of legal documents. Just as he said, “the legitimacy requirements of the law for case procedure, entities and evidence are finally turned into those for file formulation, because the evidence should be verified in the files at last” (Xiaoli 1997, p. 538). This explanation shows that the court, as the real operating institute of the national law, has its own comprehension on the legal knowledge, and based on which the “reality” of the case is constructed. The criticism on the judicial institute cannot undermine its significance in reality, and the act to fabricate court records just presents the authentic meaning of real life. This is where jurisprudents and anthropologists differ in research perspective. And those criticized by jurisprudents as “unreal” are what anthropologists have interest in. Details of the 127 cases can be seen in the first note of Chap. 5.
- 3.
The constitutional reform, which strated from the reformism, advocates making changes in economic, political, legal, educational, military and other social systems. As to legal system, it is particularly emphasized that “the laws of Rome, Britain, America, Germany, France and Japan should be adopted, reformed and executed” (Xiaohu 1997, p. 15).
- 4.
From Qu Tongzu’s retrospective study on the historical development of the law in Qing Dynasty (Tongzu 1984), it’s clear that before 1902 (the second year of the rein of Guangxu, an emperor in Qing Dynasty) the Chinese law had been of the same strain since the ancient time. But in 1902, Emperor Guangxu commanded Shen Jiaben and Wu Tingfang to revise the law “according to the present situation, taking reference to laws of all countries as references, and think over to make a draft that could be applicable both at home and abroad” (“Supplement Documents in Qing Dynasty”, Vol. 244, Study of Penalty), which led to a substantial change in the relatively closed Chinese legal system or legal tradition (Tongzu 1984, pp. 393–394). Reform on the traditional law was achieved by employing Japanese legal experts who had successfully transplanted the Western laws to Japan, allowing them to participate in the Chinese law reform. From the viewpoint of the Japanese legal experts, the Chinese law stuck too much to the feudal ethical codes, which knew little about the Western legal theory, and was an imperfect legal system. The reform aimed to prevent legal practices from “introducing ethics into law”. There were also some oppositions: those supporting the traditional law formed the so called “ethical group” (li pai), and employed the German He Shanxin to argue for the traditional ethics. But finally the so called “law group” (fa pai) defeated the “ethical group” (li pai), and converted the traditional Chinese law into one part of the world modern laws (Guilian 1994).
- 5.
Just as John King Fairbank said, the political reforms from the end of the 19th century to the beginning of the 20th century were implemented and shown on papers. Because the actual measure of the political reform was that the emperor followed the suggestions of the Innovationists , and issued almost 40 breves for modernizing the Chinese social system in exactly one hundred days, among which the legal system was included (1989, p. 125).
- 6.
Starting from the Westernization Movement (1861–1895), “political reform ” has always been linked with “self-strengthening improvement ”. Just as Li Hongzhang, the chief commander of the movement said, “peaceful relationship with the western countries should be maintained, and domestic political reform should be implemented” (“Replying Renqiu Wang”, Book of Hongzhang Li, letters among friends and colleagues, Vol. 19), “we have to abandon the land route and adopt the waterway instead, using the western technology to combat foreign states … in order to achieve the goal of self-strengthening improvement.” (Book of Hongzhang Li, letters among friends and colleagues, Vol. 1, quoted from Tianyu 1993, p. 108).
- 7.
Feng Tianyu also talked about the antinomy between “variation” and “invariability” in modern times (Tianyu 1993). What should be varied and what should not be varied were strictly defined, and in this way, the nation could be stable. The general argument stipulates the specific contents of “variation” and “invariability” by comparing the advantages and disadvantages between the Western learning and the Chinese learning. Li Hongzhang said that “the Chinese civil and military system far exceeded the Western world, except the firearm.” (The Whole Story of Organizing the Western Business in Tongzhi period, Vol. 25, quoted from Tianyu 1993, p. 111). Actually, this opinion can be also seen from The Book of Changes (Tianyu 1993, pp. 112–114).
- 8.
Fang Tenggao once made reflective summary on the Chinese economic legislation from 1979 to 1992. According to his rough statistics, during 14 years, 434 economic laws and regulations were formulated by the nation, and more than 700 laws and regulations were formulated by the local People’s Congress , which were far more than the total economic laws that had been legislated in the past 30 years. However, the effect was just like the “bottle-neck phenomenon ”, “the number and scale of the economic legislation has increased and expanded sharply, but its consequent benefits don’t keep pace with them; on the contrary, the phenomena of “failure to abide by laws” and “failure to strictly enforce laws” were prominent (Tenggao 1994, p. 24).
- 9.
People who have a basic understanding of the actual legal operation would not equate the conceptual emphasis on westernization to the actual operation, for Chinese modernization is not completely a copy of West, whose propaganda for modernization just remains on publicity and slogans. The real situation is just like what Ke Lanjun summarized, “on one hand, the western-style democracy basically makes no progress; on the other hand, the traditional behavior pattern and the Confucian values are re-accepted, propagandized and emphasized again by the official along with the continuous opening of the economy, and are gradually infused into all aspects of the Chinese society” (Lanjun 1996, p. 179). It is dubious whether the official admits the traditional values or not and at what level are the values admitted, but it is convinced that any foreign idea would be re-explained and transformed by the local culture, with the legal modernization being of no exception.
- 10.
Actually, studies in law history have indicated that the Western modern law didn’t exist since the ancient time, but developed gradually along with the growth of European capitalism (Tigar and Levy 1996).
- 11.
The opinion that Chinese legal system should be reformed with reference to the western legal system was firstly claimed by Sun Yat-sen, who targeted at the legal system of Qing regime to overthrow feudalism . Sun once wrote an article titled “Judicial Reform of China” after Great Britain suffered disaster. The article was published on the English magazine East Asia in July, 1897 in the name of Sun and his co-writer Collins. But it did not attract the attention of historians, and thus the article was not included in The Complete Works of Sun Yat-sen. Until 1980s, this article was found by a Japanese scholar Nakamura Tadashi, through Yu Xia’s translation, it was gradually known by the Chinese, and circulated in the Chinese-spoken regions. In this short article, Sun gave a great number of cases to verify how the legal system of Qing regime corrupted at that time, and eagerly proposed that the western legal system should be implanted in China. At the end of the article, it read “the Chinese bureaucracy treated the common people as dirt, for whom killing a person was as easy as killing a thousand ants … . The Chinese law sullies the world created by God and insults the common humanity. If Great Britain could understand this point, the young Reform Party (Gexindang) can be expected to introduce the European judicial system into China, or at least not hindering this process” (Yat-sen 1984, p. 10).
- 12.
Radcliffe-Brown, hereinafter in short for Brown.
- 13.
In all fairness, the Oxford Group led by Brown is opposite to the Functionalism led by Malinowski, the former focuses more on theory and its validity, with Evans-Pritchard and Fortes being the two most noticeable figures at that time. For the history of the Oxford Group, the monograph by Goody can be referred to (1995, pp. 77–86).
- 14.
The French social anthropologist Maurice Godelier, who supported the Marx theory, once made a special discussion on “tribe”. He did not agree that the concept of “tribe” was derived from Social Evolutionism , and asserted that history was not developed lineally, and the present was just the result of world evolution. Moreover, anthropological opinion that the tribal society was a “non-state society” needed to be reconsidered. Besides, once “tribal society ” was converted to be an “ideological concept ”, it would affect our real expression, and our understanding about the developing direction of the third world. Godelier (1977) here the writer has no intention to search for a corresponding “tribal society ” in China, but to admit that order could be kept well without the control of nation. Therefore, a comparative research should be made to explore a more sophisticated mechanism keeping social order in Chinese rural society. That’s why the western scholars’ previous researches on the tribal society are reviewed first.
- 15.
For example, the research made by Taiwanese scholar Shi Lei, which focused on Paiwan people’s methods of resolving familial disputes in Taiwan (Lei 1971), just remained on the single dimension of summarizing the civil rules, and ignored the influence of the foreign state or administrative officials in disputes resolution.
- 16.
Fei Xiaotong translated the English word “micro-sociological” proposed by Firth in 1938 into “显微式的社会研究”. Later in 1996, Fei wrote the article “Rereading Jiang village economy, the preface” (1996), in which he re-translated Firth’s term to “微型社会学”. Though there is difference in the Chinese version of this term, the original English word is “micro-sociological”.
- 17.
The Function Theory of anthropology focuses on the analysis of correlation among factors affecting the community life. For example, the ancestral temples in the rural South are used for worshiping ancestors, but the actual functions are far more than that. Just as Lin Yaohua said, “it is known that the ancestral temple was originally built to offer sacrifice, worship ancestors, and show gratefulness to the elders. While as time passes, its functions are not limited to religious field any more. For example, during festival tournaments, people would get together in the temple to welcome gods, to perform local operas, thus the ancestral temples have to be converted to places for communicating with clansmen. In the early Qing Dynasty, if the young passed the provincial civil service examination, they must come to the ancestral temples to worship and praise the virtues of ancestors. Even now the private schools must be attached to ancestral temples, with Shushi teaching and students learning, the ancestral temples change into an educational institute of the clansman. At the beginning, clan leaders represented the corresponding branch in the worship ceremony, which made the clan as loose as an unorganized unit; latter, due to the development of relationship between the clan and government, and between the clan and the adjacent clan, clan leaders had to communicate with officials and nearby leaders in the ancestral temples, which made it change into a diplomatic space. Furthermore, as a result of population increase, clan leaders had to resolve issues like disputes, fights, dispossession, adultery, gambling, and so on by persuading, advising, appealing or punishing in temples. So it became the inner court or internal governing mechanism of the clan, with matters like tax-distributing, donation-collecting, ancestral property managing, conducting rescue and opening granary discussed and decided in the ancestral temple, so it turned into an economic mechanism for financial stuff. To avoid thieves, robbers and enemies, the clansmen organized soldier associations for joint defense, and they all gathered in the ancestral temple, so it was also a military camp for soldiers. Such examples were too numerous to mention one by one. In a word, the clans had numerous affairs. With the increase in the functions of ancestral temple, the role played by clan leader became more important, and his power got expanded” (Yaohua 1936, pp. 130–131). So when we go to the countryside to do on-site inspection, you will find other things also associated with it. Ancestral temple can be the starting point of research. Then why other issues such as temple fair, elementary school, village government cannot be the starting point of research? What we want to stress is to see the mutual relationship between various factors. This is perhaps the essence of microcosmic research, of course, is also its charm.
- 18.
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Zhao, X. (2019). Introduction. In: Power and Justice. China Academic Library. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-53834-0_1
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