REDISCOVERING KEY ASPECTS OF CHINA'S LEGAL HISTORY
　　For more than one hundred years, China's political and intellectual elite have conscientiously rejected some historical political and legal principles and practices while striving to amass economic strength and recover their pride and political independence. In the process of this quest for power and independence, many Chinese and foreign China specialists alike have failed to ask and answer the question: “What made China the world's most populous nation and enabled the Chinese people over the centuries to produce great literature and art, as well as to develop paper, gunpowder, and porcelain, and to create some of the richest cuisines on earth?”

　　The purpose of this short essay is to provoke the interested reader to ponder seriously the fact that for thousands of years the Chinese people and their leaders have faced the same challenges as most other countries and peoples today: defining and protecting national boundaries, maintaining social order, feeding their human population, and efficiently managing production, exchange, and distribution of goods and services.

　　The sheer size of the Chinese population (in the mid-19th century, China contained 40% of the people in the entire world) suggests that China's leaders and people had evolved a successful formula for governance. What was the essence of that governance formula?

　　This essay will argue that both the problems faced and many of the governance norms and procedures employed by the Chinese imperial government for two thousand years and by European peoples and governments over the centuries possessed common core features largely ignored by Chinese and foreign scholars. The essay will summarize three key components of imperial Chinese governance and show how each illustrates the rationality and cost-effectiveness of norms, rules, procedures, and social structures that emerged in China over more than two millennia:

　　1. Use of a variety of techniques to achieve “government on the cheap”;

　　2. The central role of “case precedent” in Qing Dynasty adjudication and substantive law formulation;

　　3. Indigenous Chinese “public international law” concepts and procedures and their congruence with core Western public international law principles.

　　I have chosen these three topics for two reasons. The first is the universal rule that any form of government must achieve a dynamic balance between the cost of actual governance modes and the revenue available to the government to pay for its operations. All countries depend upon shared value systems and social entities to some extent, but imperial China perfected the art of “government on the cheap”. As for the use of “case precedent” and an indigenous system of law governing inter-state relations, in both realms— domestic and international—The norms of treating like cases alike and all countries alike were conducive to obtaining voluntary acceptance by the Chinese people and by foreign countries of the policy decisions preferred by the emperor.

　　Chinese and foreign scholars have largely ignored these three important governance systems or have failed to understand their significance and the central role they played in the development and maintenance of China's population, power, and cultural achievements. Why have both foreign and Chinese scholars ignored these fundamental governance practices in the past, which were for all those years “hiding in plain view”？

　　The explanation may lie partially in the tendency of all people, collectively as well as individually, to construct fictional images of themselves and of others (自欺欺人)to serve innate psychological needs or to achieve pragmatic political purposes. Chinese leaders and social elite made themselves feel good by creating a normative justification, Confucian morality, for a social and political hierarchy in which they enjoyed unequal prestige, power, and wealth. Western colonial powers sought to justify the use of force to subdue and to extract wealth from China by condemning Chinese governance as despotic, corrupt, and primitive.

　　I will draw upon ideas I presented in a lecture at Renmin University Law School on October 23, 2012, and in two previously published essays on Qing foreign relations law and Qing adjudication and legislative procedures. The two published essays have ample footnotes, or citations to Qing statutes and case compendia, as well as to pertinent scholarly works. In this paper, I will not repeat all of those citations, but will simply cite the two papers, as well as illustrative Qing statutory and case sources. I will use extensive passages from my own two papers, often paraphrasing, without quotation marks and often without citing my own two published articles.

　　I. IMPERIAL China's LOW-COST GOVERNANCE TECHNIQUES

　　How did imperial China achieve low-cost governance? While the central government of China began enacting national criminal codes more than two thousand years ago, it may well have been the widespread use of extra-governmental ethical and moral codes and social structures that enabled imperial China to achieve optimum stability at a very low unit cost. This stability led to highly productive agriculture, a national market for products, the accumulation of wealth, population growth, and the pursuit of scholarship, arts, and literature.

　　The Qing (1644-1911) Government paid nothing for police, as the people in effect policed themselves. The government did not even pay for trained staff to assist the country magistrate in handling the two most important functions of local government: collection of taxes and prosecution of crime. The magistrate himself had to pay out of his own pocket the salaries of his financial and legal secretaries, who advised him on his two chief duties—tax collection and punishment of criminals.

　　While it is true, as this section of my paper will argue, that imperial China quite effectively and extensively utilized non-governmental norms, entities, and procedures to achieve the state's goals of social stability and economic prosperity, these norms, structures, and procedures did not constrain state power. On the contrary, non-governmental norms and procedures directly served the state's ultimate purpose of “governing on the cheap”. Civil society in the West, on the other hand, has for hundreds of years functioned beyond the scope of state power and ability. Hence, Western civil society picks up where government power stops, while in China, the historical equivalent of modem civil society was manipulated by the imperial state to maintain its monopoly on political power.

　　In imperial China, even organized religion was strictly subordinated to the control of the sectarian state. For example, in handling a criminal case appeal by a Mongol horse thief in 1820, the highest judicial tribunal of the Qing Dynasty Government, the Board of Punishments in Beijing, ruled that one of the two Buddhist monk brothers of the horse thief must leave the monastery and return home to take care of his elderly mother.(See case No.4 in my article referenced in footnote 1, at 199-200). The Confucian norm of caring for an elderly parent (saving the state the cost of doing so) trumped the religious vow of the monk, even for Mongols who did not embrace Confucianism. This contrasts with the role of the Catholic Church in Europe, which promoted a heavenly law, higher than the secular law of kings. It was this higher law that limited the absolute power of the sovereign, giving rise to civil society and non-governmental organizations.

　　During the imperial era, both social custom and express government policy strongly encouraged citizens to settle directly any dispute with their neighbors or to have the dispute settled by clan leaders or by a respected village elder. Any citizen seeking to file a lawsuit or charge another citizen with a crime first had to pay a fee to the “yamen (衙门)”, or door-keeper, simply to get into the government compound If the plaintiff persisted in demanding formal legal resolution of his complaint, he would face a series of monetary exactions during the legal proceedings and the possibility of criminal punishment if found guilty of false accusation.

　　It is not surprising that in pre-modern China most disputes were resolved informally. What may surprise the Chinese reader, however, is that in the United States today, civil disputes, and even the majority of criminal cases are generally “settled” and not adjudicated by law. No government, not even the US Federal and state governments, can afford to handle all civil and criminal cases in accordance with the provisions of the civil and criminal statutes concerned. The administrative costs are prohibitive. For a significant percentage of potential civil litigants as well, the costs of formal legal proceedings often outweigh likely benefits of litigation.

　　In the current EU legal-political philosophy (which derives from Church doctrine), a key tenet is “subsidiarity”, which is also at the heart of federalism, namely, decisions should be delegated to the lowest possible level of government. This principle is based both on moral values (more local self- government) and economic practicality. In a sense, federalism is a western strategy for structuring government on the cheap.

　　At this point, I will introduce several of the techniques that were employed during the Qing Dynasty (1644-1911) to maintain social order and flourishing markets at low cost, in other words, to achieve “government on the cheap”. One such technique was the Xiang Yue (相约), or monthly exhortation to moral behavior, delivered at the village level in many areas of China, especially in the early part of the Qing period. Hence, in the Qianlong-period vernacular version of the Kangxi Sacred Edict, the people were told that if they did not voluntarily conform to the Confucian “li”, or standards of proper behavior, they would be subjected to harsh criminal punishment.

　　Other governance techniques and institutions that contributed to the achievement of “government on the cheap” were:1. Bao Jia (保甲);2. Li Jia (里甲);3. Zi Shou(自首);4. Clan rules (族规);5. State delegation of authority to merchant guilds to set market prices and to regulate the behavior of their peers.

　　Bao Jia and Li Jia were neighborhood organizations that prevented crime, reported crime, and were responsible for the remission of property taxes to the lowest level of formal government, the district yamen. Both of these organizations enforced the principle of Lian Zuo (连坐, Collective responsibility), which meant that if any family within the designated group of households failed to prevent or report a crime or suspicious activity, every family in the group would be punished. The same principle applied to tax collection. If one household failed to pay its land tax, the other households would have to pay it. In normal economic circumstances, these non-governmental structures, using the principle of collective responsibility, were able to maintain public order and collect the land tax at a minimum cost to the state.