Strengthening the rule of virtue and finding Chinese law in 'other' places: gods, kin, guilds, and gifts.

• Author: Szto, Mary

1. INTRODUCTION

   Discussions about the rule of law in China today often do not consider the role of virtue or ritual. At the same time, many bemoan slow or no legal reform. Prof. Minzner states that, despite reforms in the 1980s and 1990s, China has turned away from law back to practices such as mediation. (1) He also urges a third wave of Chinese legal scholarship that goes beyond formal legal institutions.* 2 What drives China's present and future legal landscape? Mediation is not only a pre-1978 Maoist practice, but also an ancient ritual whose goal is virtue formation. This article proposes that contemporary law is animated in part by the ancient blend of ritual and law in traditional Chinese law (TCL), (3) and by preference for ritual over law. Therefore, effective legal reform should include a study of contemporary rituals, and the rule of virtue should be strengthened as well as the rule of law.

   Although China's current legal regime began only in 1978, TCL was relatively continuous and stable for hundreds of years until the tumultuous events of the twentieth century. It preferred the rule of virtue as expressed through ritual. The goal of this article is twofold: to present the inseparable blend of ritual and law in TCL in four parallel and overlapping jurisdictions, and to present several contemporary examples of this as well.

   We will first explore the foundation of TCL--that is, flourishing and the invisible world within the traditional Chinese worldview--then the tapestry of its multiple jurisdictions, and then communion (ritual) and accountability (law) in each jurisdiction. In addition to dynastic codes and courts, TCL can be found in these "other" places: imperial and ancestral rites, family codes and courts, merchant codes and courts, and spirit codes and courts. Gifts and shared food and drink are the quintessential rites, and are the common thread in each jurisdiction.

   We will also consider contemporary rituals familiar to those who do business and practice law: lavish gifts, banquets, and wine. They become comprehensible within the TCL framework. China is now the world's fastest-growing luxury goods market. (4) Banquets for officials account for one third of the nation's dining out expenses. (5) Also, drinking regularly accompanies negotiations, but unfortunately, officials have died because of excessive drinking at state functions. (6) I conclude by urging not only the further study of contemporary rituals and invisible accountability embedded in Chinese law today, but also an examination and strengthening of the rule of virtue to avoid excesses. Without exploring ritual and other codes, China's traditional state codes seem incomplete; without exploring contemporary rituals, China's current legal regime likewise is incomplete. Let us now turn to the foundation of TCL.

2. FLOURISHING, THE INVISIBLE AND VIRTUOUS EXCHANGE

   I met a Chinese graduate student this summer. We made an appointment to talk. She brought peaches. I treated her for a dinner of lotus roots, dumplings and eight-treasure rice porridge, and gave her advice about her research on civic virtue. (7) TCL is part of a worldview in which Heaven, earth, and man are a lively whole and a virtuous hierarchy. (8) The visible and invisible worlds are interdependent. Following Heaven [[??], Tian Dao] leads to flourishing. (9) Nature, deities and ancestors reveal Heaven's will. At the same time, spirits are dependent on the living for sustenance. (10)

   Every person, living and dead, therefore can cultivate virtue through ritual gifts of shared food. (11) Subordinates offer food and wine, and seek blessing from superiors, including ancestors and spirits. Superiors bless subordinates. The Chinese characters for "gift" mean ritual object [[TEXT NOT REPRODUCIBLE IN ASCII]], Moreover, the feast pulls the universe together. It represents abundance from Heaven, human cultivation, and communion with invisible and visible companions. Prayer, music, and dance often animate liturgies as they embody harmony. Mutuality, love, and filial piety also direct these virtuous exchanges.

   Thus, everything, including justice, has both visible and invisible dimensions. We commune with the spirits through food and drink and are accountable to them through law. Law is embedded within ritual.

   III MULTIPLE AND PARALLEL JURISDICTIONS

   [TEXT NOT REPRODUCIBLE IN ASCII] The ancients who wished to illustrate illustrious virtue under Heaven first ordered well their own states. Wishing to order well their states, they first regulated their families. Wishing to regulate their families, they first cultivated their persons. Wishing to cultivate their persons, they first rectified their hearts. Wishing to rectify their hearts, they first sought to be sincere in their thoughts. Wishing to be sincere in their thoughts, they first extended to the utmost their knowledge. Such extension of knowledge lay in the investigation of things. (12) In TCL, there were multiple and parallel earthly and spiritual authorities and jurisdictions. Within each, ritual and law were blended.

   Until 1911, the Emperor and his officials had authority over their corresponding terrestrial territory. Family clans and merchant guilds had authority over their members. Each of these earthly authorities was, in turn, responsible to corresponding spiritual authorities. They regularly honored and consulted their spiritual parallels. In fact, the Chinese spirit world, with its intricate bureaucracy of deities, ancestor spirits, and ghosts, resembles a Chinese society of officials, kinsmen, and outsiders. (13) In each of these parallel mundane and spiritual jurisdictions, ritual and codes promoted flourishing and virtue; courts sought to rectify injustice.

   As there were several levels of earthly courts, there were several levels of spirit courts. If justice was not achieved in an earthly court, this could be rectified in a spirit court. In fact, this is the theme of many a Chinese opera.

   Therefore, harmony between Heaven and earth, and on earth, involves mediation and virtuous exchanges on multiple levels. The Emperor offered ritual sacrifices of harvest and animals in exchange for Heavenly favor. His officials offered sacrifices to their spiritual counterparts and other deities. For families, first-born sons offered sacrifices to ancestors. Merchant guilds offered sacrifices, banquets, and plays to deities of commerce and wealth.

   Proper rituals led not only to prosperity in this lifetime, but also in the life to come. If one honored one's earthly and spiritual superiors, surely one's descendants would follow suit. Therefore, gift-giving and feasting, then and now, are pillars of Chinese social interaction, negotiation, and justice. They are the pinnacle of communal abundance, contract formation, and dispute resolution. Also, codes that promote accountability were embedded in ritual; just as virtue leads to flourishing, failure to observe codes might lead to harsh consequences in this life and the life to come. Within each realm of the imperium, family, guild, and spirit world, courts enforced codes. Let us now take a closer look at these multiple and parallel jurisdictions and the blending of ritual and law in each.

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   1. THE EMPEROR AND HIS OFFICIALS

      [The worthy ruler] reverently enacts the suburban sacrifice, dutifully serves his ancestors, manifests filial and brotherly love, encourages filial conduct ... enlightens [the people] with education, moves [them] with rites and music.... He will not rely on favors to demonstrate his love for his people nor severe measures to prompt them to act.... Therefore when the ruler relies on virtue to administer the state, it is sweeter than honey or sugar and firmer than glue or lacquer. (14) "[I]n rites, it is better to be sparing than to be excessive. " (15) The Emperor and his officials modeled communion and accountability by offering sacrifices, including food and wine, to deities and spirits, and by enforcing codes embedded in those rituals. Performing 14 15 rituals was the prime duty of the Emperor and his officials. This section will address the blending of ritual and law in the imperial sacrifices; the Mandate of Heaven and rule of virtue; ritual drunkenness; China's earliest law code on ritual vessels; the City Gods and underworld courts; imperial deference to family and merchant courts; and petitions. Today, gifts, food, and wine remain prime rituals among government officials and others, but excessive drinking at official functions has led to reported deaths. (16) China is also the fastest-growing luxury goods market and City God temples remain popular. (17) Present practices should be bounded by a rule of virtue, and further study done on current ritual practices blended with law.

      The Emperor was the chief pivot between Heaven and Earth.

      The Chinese character for king, [??] [wang], shows the one who bridges the three lines representing Heaven, man and earth by comprehending the Way. (18) Although not himself divine, the Emperor was known as the Son of Heaven [[??], Tianzi], The word for country in Chinese is nation family [[??], guojia]. On behalf of the nation family, until 1911 the Emperor offered regular sacrifices of food, wine, and animals. The Emperor would fast and pray, seeking blessing for his country.

      Beijing and the Emperor's residence, the Forbidden City (completed in 1420), like previous imperial cities, were designed to maximize the Emperor's mediation. (19) Beijing was built on a North-South axis. Because yang, the superior force of the universe, was believed to be in the south, the Emperor's throne faced south. (20) At the Winter Solstice, he sacrificed to Heaven at the Temple of Heaven, south of the Forbidden City. At the Summer Solstice he sacrificed to Earth, at an altar north of the city. At the Spring and Autumn Equinoxes, he sacrificed to both his ancestors and to the Soil and Grain Gods, whose altars were located east...