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March 29, 2017

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Home » Opinion » Chinese Views

Law or heart? There’s always room for both

By Wan Lixin | 00:01 UTC+8 March 29, 2017 | Print Edition

TOGETHER with medicine, law is one of the most sought after subjects of inquiry for aspiring and ambitious youth in the West.

The desirability of law as a profession is generally seen as suggesting the advancement of the rule of law. But in ancient China, litigation tended to be viewed with suspicion.

For instance, shiye — a type of private assistant attending to legal or secretarial duties in a local yamen, the ancient equivalent of lawyer — especially those from Shaoxing, Zhejiang Province, were often referred to in a derogatory tone, with overtures of a scheming, caviling person expert at instigating lawsuits.

While lucrative, the job was supposed to contravene the virtue of beneficence.

Confucius once observed: “I could try a civil suit as well as anyone. But better still to bring it about that there were no civil suits!”

For most Chinese, having a brush with law is still something one feels uneasy about.

Our ancestors believed that social order could be better maintained and regulated by li, a ritualized code of conduct that applies first and foremost in the context of extended family, which often amounts to a whole village.

In that familiar context, being commended for filial piety or deference to elders by fellow villagers are marks of excellence.

In the case of serious disputes, advice or arbitration by one’s maternal uncle (laoniangjiu) carries great weight.

There is a very popular local TV show titled laoniangjiu, featuring mainly disputes within the family.

Institutionalized help

In this public airing of dirty linen, the parties litigant would sometime vie with each other in demonizing their foes.

Revelations of scandalous details inflate viewership, but I doubt if the show has been successful at teaching the virtue of self abnegation and humility so esteemed in Chinese outlook.

In the urban setting, we are accustomed to turning to institutionalized assistance for personal difficulties.

A couple of years ago, my son, after visiting a friend’s family, reported that the friend’s parents were in a serious quarrel, shouting so loudly that their horrified son called in the police.

It puzzled me then that in a crisis like this, the son would call the police rather than his aunt just a few blocks away.

But so complicated is the nature of human affairs that I doubt they could be satisfactorily addressed by institutionalized outsiders.

In the absence of universals, we must work out our own legal systems in view of our unique cultural legacy with its extreme emphasis on such virtues as filial piety and loyalty.

For instance, during the reign of the Empress Wu Zetian (AD690-705) in the Tang Dynasty, Xu Yuanqing’s father was convicted and executed by an official surnamed Zhao.

The son, to avenge the father, disguised himself as a servant and killed Zhao. He then surrendered to law officials.

This led to controversy about how to deal with the son in light of both ethics and the law, with one important official suggesting first having the son executed under the law, and then honoring his act of filial piety by erecting a wooden board inscribed with a eulogy on his virtues. The verdict would be codified into the statute as a precedent.

Ridiculous and confusing

In one of his most anthologized articles one of best known man of letters of all time Liu Zongyuan (AD773-819) suggested this proposal ridiculous and would lead to confusion.

Liu explained that the usage of both ethics and law is to avoid social disorder, and a thorough-going examination of the two would easily avoid contradiction.

It all boils down to finding out whether the father was convicted on framed up charges, or was justly convicted.

In the case of a frame-up, all the officials — high and low — should be held responsible for not listening to the son’s grievances, and made to apologize for this blatant incompetence.

The son should be acquitted.

On the other hand, if the father is found to be guilty of a crime punishable by death, then the son, in killing a law-abiding official, has committed an act of atrocity, and deserves to be put to death.

Given the purpose of laws, it could be easily concluded that ethics and legal provisions should be in total alignment when a thorough study of the circumstances have been conducted.

Unfortunately, in the halting drive towards a rational legal order free from contingency and accidents, the system that promised to be ideal often turns out just to be slow and expensive. This unnecessarily clumsy process allowed unscrupulous practitioners to interpret the laws to favor a certain party. It also affords room for legal professionals to broker shady deals.

In our obsession with evidence-based litigation, the seeking of truth often ignores the evidence of the heart, and can only be redeemed by a clear conscience, and a strong sensibility to the difference between the right and wrong.

Chinese Views


 

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