Law and Politics in Modern China: Under the Law, the Law, and Abo ...

that has been facing the Western (or Western-trained Chinese) scholars of Chinese law.⁸ It is a daunting and painful task to pin Chinese words and their multiple connotations down to the specific domain of English or German concepts, and it is difficult to force Chinese legal history to fit into a Western framework. Imagine binding a foot, distorting its natural shape, pushing it into a shoe that is two sizes too small, and then going for a walk—not impossible, just painful.

Many fundamental concepts underlying contemporary Western legal theories no longer make any sense in describing and analysing Chinese legal history. For example, the distinction between “rule of law” and “rule by law” exists only in academia. It does not hold ground even in the contemporary legal practice in the West, where words of law have long been used as means to justify political needs and commercial interests, rather than as pure legal and nonmoral or nonpolitical measurement.⁹ If contemporary English law is conceived as the pure legal and nonpolitical language in the past, it can and will flow out of codes and courtrooms; its distinction from political and moral languages has begun to disappear.

The continuous language of China inherited not only a highly specific, complex, and sophisticated system of law, but also a much richer collection of nonlegal rules to sanction the social conduct of its citizens. This moral background behind the law was a repertoire of moral codes cultivated by a literary tradition that is thousands of years old. These codes have elevated social and civil order from an externally imposed system that sanctions behaviour into a realm of shared convictions about proper and improper conduct. The maturity of literary language also flattened out the gap between words and deeds, rules and implication, and the language of law, as well as that of morality and politics.

As legal language lost its absolute boundary, Chinese law created its last frontier to maintain social order: legal and political administration. Politicisation of law, a new phenomenon in the contemporary West, has been a fact of life for many centuries in China. Law has been a mistress of Chinese rulers because it had never stood alone without the guidance of the administrators, the hands of the state, or the protection of an army.