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8 J. Comp. L. 104 (2013)
Natural Law in Traditional China

handle is hein.journals/jrnatila8 and id is 442 raw text is: Natural Law in Traditional China Natural Law in Traditional China GEOFFREY MACCORMACK School of Law, University of Aberdeen * METHODOLOGICAL QUERIES Some preliminary remarks on methodology are desirable. When approaching the subject of natural law in traditional China, we have to distinguish two basic questions or points of departure. The term 'natural law' itself expresses a multi-faceted concept derived from Western law and culture. Our first question, therefore, concerns the objective of the inquiry. Is it to isolate the different facets of the natural law doctrine in the West (distinguishing certainly between the 'religious' and the 'secular' branches) and determine whether the Chinese data correspond to one or more of these facets? One might term this the 'external' approach in which the object of the investigation is to determine whether the society under examination (here traditional China) yields attributes that match an external yardstick. Alternatively, we can take our departure by postulating our second question. Initially we may ask, how do the Chinese philosophers and statesmen, or even emperors, themselves think of the role law (understood primarily as the enactment of rules for the administration of the country) play in society? Do they distinguish between positive (enacted) legal rules and other systems of norms? If so, a further question arises. What is the source of the latter systems of norms? Is the source 'human' (for example the nature of man or his intuition) or is it non-human (for example god, Heaven, or the cosmos)? Further, do the Chinese themselves construct a hierarchy of precepts governing human behaviour in which the laws enacted by the ruler rank lower than prescriptions derived from another source? What is the position if the two sets of rules conflict? Do those that rank higher in the hierarchy overrule or invalidate conflicting lower rules? This we may term the 'internal' approach. If we choose to adopt the internal approach on the ground that it offers the best chance of capturing the intricacies of indigenous thinking, we are still faced with a problem. How are the terms in which that thinking is expressed to be conveyed to a Western reader? These terms have to be 'translated' into a language such as English. How are they to be translated without already importing a risk of distortion or misunderstanding? The English expressions 'natural law' and 'morality' provide good examples of the dangers inherent in translation. If we come to conclude that a particular way of thinking about law in early China, for instance, has affinities with a particular doctrine of natural law in the West, can we thereby without more label it 'natural law'? If the point that one wishes to make is that * This article is a reworking, and to some extent a modification, of ideas which I originally expressed in an article published in 1989: 'Natural Law and Cosmic Harmony in Traditional Chinese Thought' (2) Ratio luris 254. 104 JCL 8:2