The Dual Paradox of Modernity in China, from the Viewpoint of the Chinese Idea Of Law

Abstract

To the extent to which “tradition” and “modernity” are supposed to be in opposition, as it is the case with European (Western) culture, where the former is usually contrasted with the latter in a mutually exclusive relationship, in China tradition and modernity seem not to oppose one another. They complement one another in a context that is both flexible and ambivalent, where the two concepts overlap and mingle together, in a fundamental attitude ― both ideological and pragmatic ― to compromise (harmonize) between the need for a stable order, represented by the unity and uniformity of political and social institutions, and the need to adjust to changing circumstances. Under its clearly provocative title, the essay aims to address the question of the “modernity of tradition”, with regard to imperial China, and of the “modernity as tradition”, with regard to People’s Republic of China. Following the path of a reflection upon Chinese world from the standpoint of its relationship with the (idea of) law, and by exploring the “dual-track” of legality as a key-concept connoting the Confucian state, upon which rests historically the Chinese legal system, traditionally understood not independently but as an integral part of the idea and practice of “government by moral”, the essay will concentrate on the transition to modernity, marked by the two revolutionary shocks, respectively, at the beginning and in the middle of the last century. With an eye to persistent traditionally-based factors, in the context however of a rapidly evolving and changing society, where precisely the law seems to play a decisive role, putting into question the age-old balance of combining and compromising together tradition and modernity.

Keywords: Law comparison and legal systems, Tradition and modernity, Chinese legal tradition, Confucianization of law, China’s modernization and law reforms (PRC)