27 May 2013

上课: One for All and All for One, the Character of the Chinese System of Law

There are five legal families recognized by legal scholars: the civil law, the common law, Islamic law, Hindu law and Chinese law. Of course, other legal systems are sometimes added to the list – e.g. socialist law – while yet other classifications condense the legal families into just three: civil, common and religious. The modern Chinese law borrows from three legal families – civil, common and Chinese – and so I will attempt to briefly skate over the three here.

The civil law and common law are most easily differentiated when compared based on their sources. The civil law comes from Roman law (The Code of Justinian) and is characterized by laws that are written, codified and not determined by judges. Customs, practical realities – Germanic, ecclesiastical, feudal and local -, and prevailing thought – natural law and legal positivism – meshed with Roman law to form the Continental-European tradition of law. In that sense, it is often referred to as Romano-Germanic law. Civil law draws from abstractions (and thus has an inquisitorial court system – that is, a system where the court is actively involved in ascertaining the facts of a case) and distinguishes substantive rules from procedural rules.


The common law system finds origins in the Norman Conquest of Britain in the 11th century. It is commonly referred to as Anglo-American law. As opposed to the civil law, the common law is a judge-made law. Cases are the primary source of law, acting alongside legislative laws and statutes. Law is based on the rule of stare decisis: the principles and rules established by the court in previous cases are binding (or at least persuasive) on the courts in subsequent similar cases. Furthermore, the court system is an adversarial system, not an inquisitorial one: the court is a neutral arbitrator between the prosecution and the defence. Thus, lawyers play the role of interrogators and judges are understood as the creators of the law. Judges are chosen from the ranks of lawyers, unlike in the civil system where judges follow a separate training regime.

Chinese law refers to the ancient legal tradition of China and other Asian countries which had close relations with China. The ideology defining this legal system is the outcome of Confucian thought: law serves to reinforce roles and as a means of social control. Confucian philosophy strives for harmony, opposing the use of excessive legal coercion and instead advocating education and moral examples.

The modern legal system in China folds together all three of the above systems. Primarily based on the civil system as a result of the codification of law under the Republic of China in 1930, common law principles do find a way into the system. Where the inquisitorial system still reigns in theory, judicial reform has practically instituted an adversarial system in the people’s courts (so that the parties and their lawyers, rather than the judges, take on the active role). The prevalence of the informal legal system – using mediations as a means of solving civil disputes, where personal relationships are paramount – is testimony to Confucian thought.

All for one and one Chinese system for all legal traditions. Now the fundamental question…does it work?

KEYWORDS: Legal Families, Chinese Legal Culture, Civil Law, Common Law, Chinese Law

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