Dispute resolution in traditional China
Student thesis: Master's Thesis
Related Research Unit(s)
|Award date||17 Dec 1998|
Some people in the West think that the institutions of dispute resolution in traditional China are the best; others consider them as unacceptable. These thoughts are mainly misconceptions and show the lack of a comprehensive understanding of such institutions. In order to have an in-depth understanding of the subject, Chinese culture must be looked at in greater depth. This thesis concentrates on the relevance of Chinese philosophies and the roles of local officials in forming and maintaining the predilection of harmony and on the Chinese dislike of resolving dispute in a confrontational manner. The analysis shows that the latter attitude was not limited to Confucianism but was common to all influential schools of thought. Besides, Confucianism no doubt played an essential part in giving philosophical underpinning to the preferences and dislike mentioned above. In traditional China, local officials or magistrates had much discretion in handling disputes brought to them. Thus, local officials played the main role in shaping the culture of dispute resolution in traditional China. As such, the backgrounds of the officials and how they were selected become relevant. After a brief examination of the history of the civil recruitment system, the conclusion is reached that virtuous Confucians as well as corrupt and incompetent persons would likely, or even inevitably. be selected. This fact, in conjunction with the dominant Confucian tradition in the post- Han period, helped form the 'litigation-dislike attitude' in traditional China. The dream of Confucians was to turn people into Confucian gentlemen and create a utopia on earth. Since many Confucians became magistrates, they could put theory into practice. On the other hand, the chance of being exploited by corrupt and incompetent magistrates and runners made people think twice before bringing disputes to magistrates. The main part of the thesis discusses how disputes were actually resolved in traditional China. The official and non-official institutions are considered separately. Different chapters are devoted to the pre-Han and post-Han periods. The research supports the proposition that, on the whole, resolving disputes was not the primary concern of Confucian officials or mediators. Instead, prevention of disputes, sometimes at all costs. was the goal. The thesis concludes with a discussion on whether it would be desirable or possible for contemporary Western societies to adopt Chinese wisdom. The analysis indicates that, due to cultural differences, the philosophy and institutions of traditional Chinese are unlikely to be adopted for the moment. However, it is pointed out that new developments in science and an increasing awareness of the interdependence between Man and environment may lead Westerners to reconsider Chinese wisdom.
- Dispute resolution (Law), History, China, Civil law