The law with two faces

• Main Author: Yang, Bonny F.
• Format: Others
• Language: English
• Published: 2009
• Online Access: http://hdl.handle.net/2429/13642

This thesis brings forward a phenomenon and one question. The phenomenon is that, in China, laws are widely put aside. China has laws and terms used in these laws are quite familiar to western legal circles. The problem is that people do not give credit to the laws. Why do people in China not abide by the law? The answer is provided through the analysis of the above phenomenon. I argue against two theories that analyze the phenomenon: 'local resources' theory and 'language vagueness' theory. The answer to the question does not lie on the fact that the language used in laws is somewhat vague, or on the proposal to establish a legal institution that is functionally compatible with traditional dispute resolution style that is acceptable to the public. Although the two theories are both important to change this phenomenon, the crux does not rely on either of them. China has a long and almost uninterrupted history. This history has been heavily influenced by Confucianism that advocates public inequality. In the age of Confucius, the custom emerged that people did not respect the law. Instead, they respected the personal will of power wielders. Being obedient to the power was what Confucianism advocated. History continues. The motto still guides the administration in contemporary China. Imperial Chinese governments educated people and made Confucianism infiltrate into every corner of the society and people's minds. As an educational means employed by imperial Chinese government, foot binding disciplined people's bodies so as to control people's souls. People gradually became self-controlled slaves. The key to change this situation relies on education. Education, a strong tool to mould people's spirit, has not been given enough importance by the contemporary Chinese government. Jurisprudence, the science to establish people's belief in justice, has been neglected. In China, the influence of legal theory on legal practice is mainly confined to commentary and argumentation. China's problem is that most people deeply believe that administrative power is superior to anything else. To change this belief, it is essential to establish power balance theory in China. Only when there are other powers examining the legality of executive powers, can liberties prescribed in the Constitution and laws be realized. === Law, Peter A. Allard School of === Graduate