Foundations of Chinese and African Laws - Case Study Example

Similarities Between Chinese and African Laws Introduction An exploration of the cultural diversity of nations often leads us to a pleasant discovery of unity amidst diversity. In the area of laws, several countries having very different cultural nature and ethnic backgrounds surprisingly have commonalties in their legal system. Some scholars attributed these similarities to the era of colonization where practices of colonizing nations rub unto the local system. It is their belief that contact between nations in the past caused the evolution of legal systems around the world thereby creating a sense of connection and interrelation. However, there are those who believe that such marked similarities in terms of laws and norms are not only a product of contacts between races. Their argument is that there is a kind of universal bond borne out of humankind’s common understanding of what is right or wrong, which makes rewards and retributions a common scenario. I am inclined to take the side of those who feel that a universal understanding of what is right or wrong is behind the spirit of the laws that governs the human society. To illustrate this point, let us take into considerations the Chinese and the African setting, taking into specific considerations the origin and foundations of such laws. China and Africa are almost at the opposing poles if we talk about cultures, civilizations and the evolution of their legal systems. Since time immemorial, Chinese have been known as traders traversing the high seas to trade goods. In the olden times, Chinese dynasties were known to be one of the most organized structures of government and have codified their laws as early as the 221 BC (Gray. Gregor. 1878) By contrast, Africa was a mystery to the rest of the world up until now and most of its laws are still unwritten to this day. Unlike China where the codes are easy accessible to those who would care to read them, African laws, owing to its unwritten nature, are not readily accessible by outsiders. In order to gain knowledge of African law, one must closely observe and learn from experiential accounts of its subjects. However, what is interesting to note is that even though one laws is already codified and the other unwritten, by looking into the origins and the spirits of the laws of these countries, there are similarities in them that is worth looking into. By taking a closer look into the very foundations of these laws, one will find that both are more or less built on similar foundations. 2. Foundations of Chinese and African Laws Studies conduct on Chinese and African laws noted that both laws are essentially based on ancestral customs and traditions. Both laws are closely linked to religion and spiritual practices such as worship of ancestors. Rewards and retributions in both laws are premised on the performance of specific rituals at the right place and time coupled with the right deportment or attitude. The approach to law in these two countries is pluralistic. One cannot dissociate laws from religion, nature, culture and social norms. Laws in these countries are deeply associated with the earth and the ancestors, which lead some scholars to speculate the divine origin of the law. A predominant principle of traditional Chinese conception of law has been the belief in a cosmic order of the universe, involving an interactive relationship between heaven, earth and men. The universe is seen as the basis of law in both countries. Cosmic forces and the “wishes” of the spirits of ancestors’ forms part of the laws of the land. One simply cannot dissociate one from another. Both countries believe that Heaven and earth observe invariable rules in their movement, but men are masters of their own acts; and, according to the way in which men behave, there will be order or disorder in the world. Based on this perception, both systems are predicated upon a particular set of supernatural beliefs and ritual practices. Where social orders are ruled by the fomba in Africa, the Chinese had li to guide them. Both the fomba and the li are anchored on the same principles internalized model of self-control. To understand these principles, better, let us look into the origin and nature of both fomba and li. a. Fomba in the African Culture In African culture, the fomba or custom is premised on incarnation of the ancestors in the law. It is the belief that the spirit of dead ancestors merged itself into the laws or norms of its people. It is the general conception that the dead has power to give or withhold favours to the living. Ancestor worship was always an important ritualized element in Afican cultures, linking the spheres of the living and the dead, and many different types of ordeals would become part of the legal processes among Africans. Such belief compels people to follow the perceived wishes of the ancestors lest they be punished for failing to heed. Rituals stems from the need to communicate with the gods and spirits, to placate them in order not to incur their displeasure or wrath and to make atonement in cases of wrongdoing to prevent vengeful acts. In other words, a reward and punishment system that hinges on the premise of pleasing the ancestors. This practices is evident in healing rituals and casting out of bad spirits, performed in public, which involves offering sacrifices to the ancestors to show the immense power of the ancestors and gods and their roles in human society. Although such practice may appear bizarre and pagan to the western world, such system actually constitute a powerful deterrent for people to commit crimes. This faith that the spirit of the ancestors is incarnate in the laws is a precious and powerful factor from which derives an ‘inner concern’ felt by an individual member and which influences his behaviour toward the mores and folkways of his community. This spiritualization of law and its sanctional sources, and indeed of life in general, operates to surround law and its procedures with an aura of sanctity and to endow it with the instantaneous ability to evoke voluntary compliance with its dictates as an exalted religious obligation. This is also the principal explanation for the fact that sacred rituals and ceremonies form such an inseparable part of the legal process. (please supply title of book you sent me) In both African and Chinese laws, the belief system carry enormous implications for patterns of doing things more specifically in resolving disputes in the community and preventing criminal activities. These beliefs dictate how people should act or react to things happening in their surroundings. How does this system of explaining things affect governance? Does it have effect on the rulers of the land? Yes, it does. In the olden times and even now in some remote areas in China and African the way of explaining natural disasters and misfortunes on a large scale led to political consequences which related to the choice of rulers. Where so many calamities affecting the vast majority of the people in the community happen, an assumption is often reached that the spirits are displeased with their choice of rulers. It is the assumption that there should always be a Mandate of Heaven for the righteous ruler. b. The Li in Chinese Culture Li is a term, which has many translations to the English language. As in African fomba, the Chinese Li is also related to ancestor worship. Li originally means the correct performance of all kinds of religious rituals; sacrificing to the ancestors at the right time and place and with the proper deportment and attitude. It also means proper performance of divination and the proper performance of rituals and rites. Translated into modern parlance, li means the concrete institutions and the accepted modes of behaviour in a civilised state. Emerging from the ancient forms of ancestor worship in combination with sacrificial actions and ceremonial usages and gradually moving into all spheres of life, li becomes socially accepted as a vast body of concrete and distinctive rules of behaviour in China (Ropp & Barrett. 1990) Like the African fomba, which is based on self-discipline, the operation of li may be assumed to be internally enforced. In effect, like works upon man’s consciousness in a form of inner constraints or compulsion to comply with rules and models. These rules and models demonstrate one’s personal ability to support universal harmony as well as contribute to the cultivation of society and oneself. This system of behaviour dictates that everybody had to have, and to do, his duty, namely conforming to the way of conduct according to li or he was likely to bring about disorder in his relationships and personal misfortune. As with the African fomba, the belief that disrupting the peace and displeasing the ancestors would provoke calamities. The rewards and retribution systems of Chinese law is anchored on the premise of self-controlled order. A society based on li idealized that a person is a social being that do the right things at the right time. Disruptions of establish patterns of doing things will result to retribution termed as fa in Chinese culture. 3. Balance and Harmony An interesting aspect to look into the when comparing Chinese and African law is macro and micro patter of its implementation. Note that laws of both countries are focused on individuals and not on the government. The focal points of both laws are how individuals deal with Mother Nature and their community. Observe this hierarchy of implementation. First of all, harmony between men and nature must be observed. Human behaviour must be coordinated with the order of nature. To avoid epidemics, poor crops, floods, earthquakes and other natural disasters, one must take into account the cycle of the seasons, the position of the stars and various events of nature when proceeding to various public and private life. The second harmonious relationship that must exist is that between men. The ideas of conciliation and consensus must be primary in social relationship. You might ask how does the Chinese observe this kind of macro/micro level legal system when their laws are already codified? Would they be able to bring their concerns to court on the grounds of violation of the order of the weather? For the western world, this is quite unthinkable of course. However, the other side of the world has a way of doing things. In China, although the laws are codified as part of the government systems, the Chinese normally live outside or apart from the law. They don’t seek out whatever rules the law contains or claim their day in court, but settle their disputes and regulate their dealings with others according to their own idea of what is proper, without assertion of their rights and with conciliation and harmony as goals in mind (Tai-tai 1967). In other words, what dictates their way of dealing with others and the rest of the universe in not exactly the written laws but rather their judgment of what is right or wrong. Technically, this is the same pattern followed by the African system. To gain more understanding of this unique legal framework, let us look into the core value of the people in both countries. African and Chinese culture grounded on extended family relations, espousing the principle of cooperation. A clan or family is like a small government unto itself where there is a respected ruler who controls and regulates the behaviour and norms of the group. The ruler or the head of the clan or family is responsible for imposing discipline unto its members as well as determine how the group will interact with other groups or clans. The whole clan or group is solidarily liable for the act of its member. Hence the African idea of justice demanded that where a member of a clan or group injures the properties of another clan or group, the loser’s group regain what had been taken from them plus such additional transfer of goods as would ensure that aggression of any sort always meant punishment. This kind of punishment is not merely symbolic but a kind that impoverishes not merely the wrong doer but also his group. Whoever dares to upset the prevailing state of social balance by injuring the generally recognised rights of another must in all cases emerge from the dispute ‘no richer or more favoured but poorer and less favoured than before. As the need to stay in a group would ensure survival in African setting, the worst punishment is actually being banished from the group. (please supply title of book you sent me) The Chinese on the other hand has its parallel way of giving justice as that of the Africans. Arguably there has never been a stable human society in which any institution has been more important to the participants than the family. Thus China is by no means unique in considering the family important on that familism even more central in that society than in most. Thus, in Chinese practice, a crime committed by a member of the family dishonours the whole group. Like the retribution and punishment system of Africa, the head of the Chinese clan is held liable for the acts of its members. He has then the right to impose punishment upon his subjects or family members. In the olden times and even at present, the worst punishment for this people is dishonour. In some instances, to save the family from a “debt of dishonour”, the family member who caused the same often times commits honorable suicide or killing oneself to restore honour to the family. Although these practices are perceived to be contrary to the international accepted standards of laws, these practices are notably binding upon these people as a self-imposed regulation. It is not a system, which is centered on the government but is an aggregate of many factors. 4. Conclusion African and Chinese laws through diverse in many ways have deeply rooted similarities which remains true even in modern times. Although some self-imposed practices may been to be bordering on the extreme at one point or another, both laws expresses a kind of harmony and balance that hold its people together. Culture, social norms and religious practices form part and parcel of a system that has been tested through times. Though mostly unwritten, the discipline resulting from these practices have created a powerful deterrent on people from committing crimes against another. I believe that is what the spirit of the law is all about – the installation of a systems of order in society. Such principle transcends borders and races. It is a concern of all humanity. Bibliography 1. Ayittey, G.B.N. (1991). Indigenous African institutions. New York: Transnational. 2. D’Engelbronner, F.M, M. O. Hinz, and J. L. Sindano (1998). Traditional authority and democracy in Southern Africa: Proceedings from the workshop ‘Traditional authorities in the nineties - Democratic aspects of traditional government in Southern Africa’, 15-16 November 1995. Windhoek. 3. John Henry Gray, William Gow Gregor. (1878) China: a history of laws, manners, and customs of the people. London. Macmillan 4. Tao-tai Hsia (1967). Guide to selected legal sources of mainland China: a listing of laws and regulations and periodical legal literature: with a brief survey of the administration of justice. Washington, Library of Congress. 5. Paul S. Ropp, Timothy Hugh Barrett. (1990) Heritage of China; contemporary perspectives on Chinese Civilization. University of California Press. 6. Please supply title of book you sent me Read More