Legal thought

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THE TERM “LEGAL THOUGHT” is often used as a general concept to describe the ways in which people in different societies or cultures think about the purpose and role of law. A related, more technical term is “jurisprudence”, which concerns the legal theory or philosophy behind the nature of law. Associated with “legal thought” and “jurisprudence” is the concept of justice [for a discussion about the notion of justice, see China Business Law Journal volume 11, issue 7: The notion of justice.

The idea behind this column was triggered by a farewell present that my colleagues at Melbourne Law School gave me when I retired from my formal academic position and moved into an honorary position earlier this year. The present was an old book called Modern Chinese Documents by the Dutch sinologist and legal historian Marius Hendrikus (M.H.) van der Valk (1908-1978).

Legal history has been an enduring area of interest for me since I commenced my legal studies at university. I have been fortunate to have had many opportunities to combine my general interest in legal history with my research and writing on Chinese law. Many of the previous columns I have written have explored topics that relate to Chinese legal history (see, for example, China Business Law Journal volume 3, issue 5: Law or equity?; China Business Law Journal volume 6, issue 5: Magna Carta; China Business Law Journal volume 8, issue 6: Custom and law; China Business Law Journal volume 10, issue 9: Wigs and robes; China Business Law Journal volume 11, issue 1: Chinese legal pioneers; and China Business Law Journal volume 12, issue 3: Law reports).

Of course, any legal system is inevitably the product of its history and traditions. To that extent, law and history are inseparable. Even in mainland China, which experienced a profound break from the past as a result of the 1949 communist revolution, the modern legal system continues to be influenced by its earlier legal history, including Chinese legal thought that has prevailed for hundreds, if not thousands, of years.

Professor van den Valk was a student of the famous Dutch sinologist and Professor of Chinese at Leiden University, Julius Lodewijk Duyvendak (1889-1954). He held significant positions, including Official for Chinese Affairs, Professor of Chinese at the University of Indonesia in Jakarta and Professor of Chinese Law and Chinese Legal History at Leiden University. Van den Valk’s books on modern Chinese family law are probably his most famous contribution to the literature on Chinese law and Chinese legal history.

Another significant work by van den Valk is an article published in 1938 entitled The Revolution in Chinese Legal Thought, in which he explored the development of the two main historical schools of thought in Chinese law – the school based on Confucianism and that based on Legalism – and the fundamental debate about whether rules should apply to everyone without exception, or whether the law should allow some discretion to apply (or disapply) the law based on the circumstances of the case and, in particular, the specific relationship between the parties involved. The first approach is identified with Legalism; the second with Confucianism.
As noted by van den Valk in the article:

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Andrew GodwinAndrew Godwin previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law (2006-2021). Andrew is currently Principal Fellow (Honorary) at the Asian Law Centre, Melbourne Law School, and a consultant to various organisations, including Linklaters, the Australian Law Reform Commission and the World Bank.