American Buddhist Net

Excellent piece with valuable background information. Well-worth reading. ABN
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Robert Jones
March 27, 2008

In the Qing dynasty (http://en.wikipedia.org/wiki/Qing_Dynasty), China was frozen in a Neo-Confucian world, utterly unable to accept ameliorative change. During that period, an imperialist west faced a huge nation that was organized into what resembled a Despotic empire - similar to an ancient Egyptian Hydraulic culture. This was last seen in the west during the Roman period. (http://www.riseofthewest.net/thinkers/wittfogel05.htm)

Civil rights in the early South were administered by a severe legalist system. There was no respect for conditioned motivation or individualism. Group affinity or lineal relations were the soul criteria of identity. Few factors litigated verdicts other than a severe legal code. The North, in contrast, gradually became more Confucian. Nevertheless, both systems were administrated, and basically run by appointed Mandarins appointed by the Imperial Court.

The mono-polar and hierarchical nature of this administration was modified at the local level by clan and lineage organizations. These can be very loosely understood by thinking of the famous Tongs of San Francisco or Manhattan (http://maoist.wikia.com/wiki/Chinatown,_Manhattan), whose descendants ruled Chinese ghettos in the nineteenth and early twentieth century. Secret by design, they were local and difficult to integrate into a national or state code of civil law.

In China by the end of the nineteenth century, the Tang Code of Laws, written in the Seventh Century (http://en.wikipedia.org/wiki/Tang_Code), pervaded all subsequent dynastic modifications until the advent of the Nationalist Government in 1912. China lagged behind Britain and America in civil law, which had long modified Roman law to better articulate functionality at the local level. In China, civil law was proportionately left to familial organizations and their lineage level correlates. Civil law was, therefore, heavily familial and local in nature.

Although Nationalist (Kuomintang, KMT) rule in China (1912-1949) brought a new code of laws, local traditional laws often preempted the new Kuomintang unified legal system. Conditioned by Confucian parameters of lineage, occupation, class and locality , they presented a seemingly opaque legal wall to the west during the Warlord period.In this period a weakened and chaotic state, China interacted with a colonizing West.

The West faces two problem areas in dealing with Chinese law. Because of the chaotic nature of Chinese civil law, it has been difficult to provide safeguards from the arbitrary incursion of special powers -- such as the military or other power elites to safe guard property, particularly real estate. The second has been the mono-cultural perspective of Chinese culture. Equality under the law, and by extension, fair treatment of minorities are two glaring weaknesses in Chinese law, traditional or modern.

Equality before law was never officially accepted as a legal principle and as a legal practice. For example, the system of exemption of eight categories of persons from criminal prosecution (ba yi) and the system of exemption from punishment by giving up official positions (guandang) are formally recognized legal devices.

"Unlike in the West, where secular and religious powers co-existed and fostered a tradition of plurality, the traditional Chinese legal system, as a tool of the sovereign, has never encountered strong counterparts, and therefore never tolerated the existence of any alien powers and legal rules other than those of the emperor." (http://en.wikipedia.org/wiki/Traditional_Chinese_law).

This aspect of Chinese legality explains the somewhat psychotic sounding treatment of groups that dare to question centralized canons of law such as Falun Gong. China allows very few exceptions to its absolutism.

Because of the absence of minority rights, the Tibetans have fallen into a Confucian-influenced category non-Han "outcastes." This dualist aspect of Chinese society has been deeply analyzed in the writings of Bataille. Chinese have a vertical world view that disdains and denies compassion to those whom they categorize as "below" and does the opposite to those "above." Bataille's books use China as an archetypical example of a rigid and hierarchical world-view on human rights. Claude Levis Strauss likewise noticed how China had been deeply divided along binary principles since the Shang Dynasty. His article "Do Dual Organizations" touches on this archaic aspect of Chinese society.

Movements such as civil rights and those that ameliorate unfair treatment of minorities (i.e. Tibetans) are laregely alien to Chinese tradition. Archaic Chinese law drew the distinction between Han culture and those of its immediate neighbors, the Yi. This tendency to exclude "the other" is an integral part of their legal system to this day. "You want me to go against a fellow Chinese to be your attorney? Are you crazy?" was the incredulous response to one recent foreigner's request for legal assistance in Taiwan.

Much of China had evolved from a centralized system of flood and irrigation management called a "Hydraulic culture" by Wittfogel. He coined the term "Oriental Despotism" to designate cultures that had evolved from massive attempts to coordinate the construction and administration of these large river projects, which entailed the use of a great number of workers. Some specialists hypothesize that hydraulic projects--or large state projects--lie at the core of Chinese culture.

Present-day Tibet contrasts with China in the absence of "Oriental Despotism" there. There were no massive irrigation, flood, canal, or Great Wall construction projects that forced the culture into obeying a centralized bureaucracy under the administration of a dictatorial emperor. Tibet, in contrast, was organized as a theocratic constellation of hamlets. The culture shared two religions -- the native shamanist religion of Bon and various sects of Mahayana Buddhism. Geography dictated Tibet's isolation and its decentralized structure.

In contrast, much of the Chinese population is on a great plain where Mandarin is used with minor dialectical variations. Much of it is interlaced by rivers that allow canals and other riverine commerce with its resultant administrative control.

The two largest branches of the Sino- (Chinese) and Tibetan family have been separate for thousands of years. Their contrasts are far more profound than those among European cultures, such as Germany and England or Italy and Greece.

China's invasion of Tibet would be analogous to imagining Greece invading Norway. China invaded a separate culture. Its strategy is to first marginalize and then assimilate a conquered nation. There is no "right" here. There is only the dictate of "might."

(to be continued)