Tradition And Transformation:Narrative And System Of Private Right

This paper takes "private right" as the object of study and tries to review the origin of private right status quo in China. As China is experiencing the transformation from tradition to modernity, the paper gives "private right" a historical retrospect to its development of "narrative" and "system". The author refers to the situation of private right in traditional society, the alteration thereof from late Qing Dynasty to the early Republic China, and the political context and its influence on private right in this dissertation.The author probes into three matters through the text. Firstly, the traditional Confucianism or abstract political narrative can never outline the naked truth of private right in traditional society, which should be confirmed by close observation in operation, with the combination of general power structure then. Secondly, at the time of approaching from tradition to modern for China, namely Late Qing Dynasty and Early Republic China, what kind of transformation is the narrative and system of private right undergoing and how is the condition thereof? Thirdly, the author introspects further, in the contemporary context, about the reason for "private right’s melancholy". Is this rooted in our tradition or a result from the modern transformation, or can we put forward other reason? The statement aforesaid works further for the following ends. Firstly, it challenges the view of Enlightenment History, to which the author attributes the history remolding and reshaping. It is a common state that our knowledge on traditional Chinese private right is deadly confined in a predetermined ideology, which means conclusions precede demonstration absolutely. Secondly, despite of the criticism on modernism surrounded, the author argues that the inconsistency between tradition and claim for spiritual freedom, individual spirit and inviolability of private right from modernism is not as profound as expected. The conflict between the said two is more political than cultural as the author is concerned. To meet the demand for revolution or other expectation, the diversity between West and East, tradition and modernity is hugely exaggerated by the politics and "private right " is naturally one of the typical thereof in terms of temporal distinction. Thirdly, on further deliberation, the author realizes that conceptions like "modernization" or "westernization" used to describe Chinese history over a century appear to be over "abstract" or too "general". While the participation of political authority in the historic process is overlooked and our understanding of modernity becomes complicated or even distorted because of the simplified summary. Once reflection and introspection on culture goes too far and that on political authority is ignored, culture or modernity will be regarded as the cause of private right’s melancholy and thus misunderstandings on history and today unavoidable emerge in our knowledge system.The dissertation includes seven parts as follows.Part one:Introduction. It explains the motivation of this paper—the "private right melancholy" in actual context. It also gives a summary to various historical interpretations about the "melancholy" in academic circles and makes critical comments. The target of the paper is shown clearly by an inquiry:whether the thousands of years’tradition or the modernization since Late Qing Dynasty is the root of the "melancholy"?Part two:Modernity, Politics and Private Right, Serving as the theoretical basis for argumentation through the paper. By rethinking the function of "modernity " in history molding, the author, in the analysis of its unity with politics, argues that modernity supports modernism politics as its legality and legitimacy and leads to distinctive approaches of recognition and inscription between the history of ancient politics and history of modern politics. The access to history of modern politics takes modernity as the matter of necessity and ultimate end, which as well makes modern and tradition isolated, West and East separated. The "spirit of private right", as one of the top ideas of modernity, is considered and recognized with the name of western modernity, but always absent from the practice of eastern society. In this part, after borrowing the studies on politics of private law abroad, the author rethink the relationship among modernity of western centralization, politics and private right and comes to the conclusion that it is of great significance to figure out the appearance of private right and transition thereof from the tradition and reformation and to reconfirm the relationship between politics and private right.Part three:Conditions of Private Right in Traditional Society. This part interprets the traditional private right from aspects of both political utterance and political practice in Qing Dynasty. Based on a detailed analysis of the official provisions in Code of Qing Dynasty, which is produced under the intervention of political discourse, the author supposes that the "civil provisions" is untenable and private right discourse is of no legitimacy in the code. Whereas when it turns to the practice, there exists sufficient space for private right operation and the transactions of private right are regulated by custom laws or industrial conventions which are unofficial, as well as the family and gentry. Besides, the author makes critical comment on the argument of "expression" and "practice" about Qing Dynasty put forward by Philip C. C. Huang and his farfetched connection between official laws and civil judgment in Qing Dynasty. Finally the author comes to the conclusion that there is no necessary relevance between the "judicial ruling pattern" and "the vigorousness and protection of private right"Part four:A Late Qing Dynasty under Reform:New and Old. This part illustrates that private right obtains its legitimacy in official narrative and implementation in institution construction with the help of the old power but new born political ideology in state making. While during this process, it turns out to be less difficult than imagined to accept, for both the official and the folk, the separation of civil law and criminal law and the conception of personal property, which indirectly proves that there exists no conflict between the culture of private and Confucianism in traditional life.Part five:Judicial in Early Republic China:Context and Practice. This part, by reviewing the "Bourgeoisie" political narrative in Early Republic China, argues that claims including "Racism" in Han and Man nationalities and the "Equalization of Land Ownership" appear to be anti-capitalism, while the bourgeois ideas like "supremacy of private right" are absent from the guiding principles. Besides, the state making which commenced from Late Qing Dynasty continued in Early Republic China but meanwhile the laws stipulated in Early Qing were kept in the establishment. The validity of the laws was assured by the verdict from Central Judicial Office in Early Republic China during the transition from tradition to modern. Under the newly-established authority structure and pattern, private right suffered little obstruction in the realistic situation of both the old society and new state, along with the conservativeness and innovation of Central Judicial Office.Part six:Reflection of Power:Macro politics and micro private right. The idea that the fragility of private right in China is the result of Chinese tradition or the modernization ever since Late Qing Dynasty is criticized above, this part focuses on the history after establishment of the People’s Republic of China. By the theory of "The Invention of Tradition" from Professor Eric Hobsbawm, the author, after further exploration of culture and institution, points out that political authority played a significant role during the history of private right and thus produced a misunderstanding on the right’s situation and its operating. A concept and system of macro-politics and micro-private right created by a series of political movement enjoys profound popularity to date.Part seven:Conclusion. It explicitly states that the problem of private right in China lies neither in tradition nor the process of modernization in the past century, but in the political ideology and authority operation in the very times. The course of private right construction matches the proceeding of rule of law in China.