Discussion Questions Describe the debate between Bohannan and

Discussion Questions • Describe the debate between Bohannan and Gluckman and take a position. 1

Bohannan / Gluckman Debate • Grappling with concepts • Examples – Social connections (guanxi 关系) – Civil society （gongmin shehui 公民社会） – Peasant (nongmin 农民) – Legislature – “rubber-stamp” legislature 2

Bohannan / Gluckman Debate • Bohannan – Problem of “backward translation” (Stephens, p. 10) • Gluckman – Accurate description – Comparison with similar concepts – Assignment of English term 3

Discussion Questions • Is it possible in principle to have a “Box X” as described by Bohannan? 4

Discussion Questions • Consider the differences between Stephen’s judicial model and his disciplinary model. Is either an accurate description of any society? If not, are they useful? • How does the Bohannan-Gluckman controversy bear on Stephen’s work? 5

Stephens on law vs. discipline • Chaos vs. order – According to Stephens, what society privileges order? – How does a society achieve order? • Chaos vs. harmony – According to Stephens, what society privileges harmony? – How does a society achieve harmony? 6

Stephens on law vs. discipline • Legal/“adjudicative” – Resolving disputes • Parties equal • Measured by predetermined rules • Rules are universal—apply to everyone • Legal authority equally subject to rules • Legal authority independent • Outcome based on notion of rights • Disciplinary/“parental” – Resolving disputes • Parties of different status • Attention to particular circumstances • Outcome depends on one’s status; goal to instruct or punish • Authorities not equally subject to rules • Legal authorities not independent • Outcome based on duties —not rights Note how this discussion could relate to current debate over professionalization of judges in China. 7

Stephens’ Legal vs. Disciplinary • PURPOSE OF LAW – Protect interests of the individual • PURPOSE OF DISCIPLINE – Maintenance of • Cohesion of group • Existing hierarchical structure • Authority of the leaders 8

Use of law in disciplinary context • Qing courts – Enforced “rights” to property and person (Huang 1996) • Could only be exercised against status equals • No “absolute” rights • No rights could be asserted against the state – Therefore no discourse of individual “rights” 9

Discussion Questions • What is “law”? How do we know it when we see it? • What is the point of studying a foreign legal system? How does one identify it as “legal” or a “system”? 10

Comparative Law and the Study of Foreign Legal Systems • Law – Special type of behavioral norm – Facilitates dispute resolution and maintenance of “order. ” 11

Political Science perspective • State: monopoly on legitimate coercion (in order to maintain power—provide national defense and domestic order) • Therefore, domestically, need non-violent tools in society – resolving disputes, – punishing illegitimate violence 12

Chinese legal scholar Liang Zhiping on: Origins of Chinese and Western concepts of law • Documents of Antiquity – 5 punishments • • • Armed soldiers (i. e. warfare against neighboring clans) Executioners’ axe Knife saw Sharpened bamboo Whip (within own clan) – State was a form for a single clan to exercise (legitimate) control – Gradually separated punishment of crime from warfare – Emphasis on punishment of criminals – Note absence of notion of contending, pluralistic groups within a given society (Liang 1989) 13

Chinese legal scholar Liang Zhiping on: Origins of Chinese and Western concepts of law • Falü 法律 law – Term is a 20 th C import via Japan • Fazhi 法制 legal system; laws and institutions – Originally associated with punishment (Spring and Autumn Annals “repair prisons, prepare shackles…” (Liang 1989: 62) – Legacy of emphasis on criminal law and punishment 14

Chinese legal scholar Liang Zhiping on: Origins of Chinese and Western concepts of law • Punishment coexisted with advanced moral philosophy stay tuned for discussion of Confucianism (and Legalism) on Thursday 15

Chinese legal scholar Liang Zhiping on: Origins of Chinese and Western concepts of law • Western law or legal system (already generalization—Roman law European civil law vs. English common law) – Greece, Rome • Conflicts between commoners and elite, pluralistic groups contending • “law ultimately was the essential means used for defining and preserving the rights of various segments of society (limited of course to free men). ” (Liang 1989: 78) • Basic premise: law as the • Guarantor of rights • Measure of freedom 16

Chinese legal scholar Liang Zhiping on: Origins of Chinese and Western concepts of law • Cicero: “We were slaves of the law in order to be free. ” • Law as an end in itself • “The law not only controls each individual, but also governs the entire society, and brings all of social life within an impersonalized framework. This is the philosophical foundation of modern Western theory of the rule of law (Liang 1989). ” 17