Nov 16, 2018 in Analysis

The Western and Eastern paradigms of legal understanding and legal thought differ in many core concepts. The crucial element of any legal system is the way the disputes are settled. Needless to say that nowadays one might hear about the general unification of the rules determining what is to be considered due legal process and which requirements are to be followed to ensure that the rights of the parties are observed. Despite the fact that the states are unanimous in recognizing one’s right to due legal process, the latter is organized differently in every state. However, it is commonly accepted to distinguish legal paradigms, Western and Eastern, as they encompass the features peculiar for the states that are covered by them. Therefore, when it goes about Western tradition, the disputes are settled through the procedure where the human rights are of the greatest value. In addition, such concepts as Rule of Law (Rechtstaat), human dignity and individuality are inherent to the Western legal theory. On the contrary, the Eastern paradigm of legal thought was specifically crafted to address the needs of the traditional society with the kin-based social structure, agrarian economy, central imperial rule and stress rather upon the stability of the society than its development. Considering that the historian prerequisites shaped the two types of legal theory that were different in nature, the aim of this paper is to highlight the differences and similarities between two traditions of legal thought and reflect the impact of globalization, free market and capitalization on the traditional approaches to the legal systems within the Western and Eastern legal paradigms.

First of all, the attention would be paid to the ways of the settlement of legal disputes. It is a commonly accepted fact that the procedure set for the resolution of legal disputes is hardly influenced by the socio-economic conditions of the society as well as its level of development. Speaking about the Western legal tradition, one could easily recall the example of England when the Norman Conquest has resulted in the creation of the unified system of judicial administration. Since those old times, the structure of the courts has been established and each of them has been competent in regard to the specific kinds of legal cases. The King served as the last resort within the legal system and usually heard the cases of the greatest public resonance. Since those times, the English legal tradition has been encompassing the existence of the unfair and unbiased courts (or magistrates) whose main duty is to hear the cases. A similar model of the administration of justice was adopted in the former colonies of Great Britain, such as the USA, Hong-Kong etc. Moreover, the same in general applies to the continental Europe where each country has developed its own hierarchy of courts which are committed to exercise justice on fair and unbiased basis. Some of the countries have adopted a rather developed system of courts, including the institutions specifically created to hear the cases of juvenile offenders, cases involving family matters, employment disputes etc, whereas the other adopted the general model of judicial administration when all the cases are heard in the courts of general jurisdiction and then, if needed, revised by the superior courts.

The Eastern legal tradition has also been influenced by the society that developed it. At this point, one should mention that the importance of Confucian ideas for the Eastern legal paradigm as well as for the ordinary representative of the Eastern part of the world is hard to overestimate. The ideas of this greatest Chinese philosopher have been absorbed by each sphere of the everyday life of the average citizen. Sometimes, it is indeed hard to distinguish the religious, philosophical and legal text extracts as all of them are based upon the ideas of Confucius and are therefore extremely similar in nature. Therefore, if one dwells upon the legal theory of Eastern law paradigm, then they should necessarily take into consideration the ides of the ancient Chinese philosopher.

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Confucius indeed severely influenced the legal thought in China. The philosopher disregarded the litigation as a type of dispute settlement. Instead, he emphasized the importance of the mediation as a process of reconciliation when both parties recognize their guilt and come to the mutual solution of the problem arisen. Confucius frequently stated that the most precious unqualified good of the Universe is harmony. In case of any dispute, harmony disappears. Confucius also considered that the litigation is not the best way of dispute settlement as it also refers to the disruptive social relations. The philosopher asserted that the initial state of harmony could only be restored through the process of mediation. As a result of it, the Chinese legal tradition allowed the majority of civil disputes to be resolved by the magistrates or through the mediation. Therefore, the civil procedure as s set of rules guiding the due process of hearing the cases involving civil matters is extremely underdeveloped in China. All of it refers to the family, employment, succession and other private disputes as well.

Another reason why mediation was so popular among the Chinese population was that for the majority of the population it was immoral to seek compensation through the litigation. As any other Eastern tradition, Confucianism emphasized the self-cultivation, self-restraint, personal growth etc. In this regard, Chinese citizens made an explicit line between ‘morality’ and ‘profitability’. It was a generally accepted opinion that if one chooses in favor of litigation, then the only motivation of the claimant would be of the profitable or material nature. Such a motivation was not considered moral. Therefore, the litigation was in contradiction with the tradition of morality and, of course, few people turned to use this way of dispute settlement. For years, the increase of the cases that went for litigation testified the moral decline of the society. On the other hand, if the rate of the disputes heard in the open courts was low, then it was considered that the officials as well as administrators succeeded in the process of educating people.

All civil matters including the ones involving family issues, marriage, property, succession, land etc. were to be settled through the process of mediation. The latter was conducted in front of the whole community consisting of older residents, middle-aged, children, kins, gentry etc. Then if all efforts regarding dispute settlement under the conditions of mediation failed, the case went to the magistrate. Such a practice of community mediation was an effective way of dispute resolution, when the state discouraged its citizens to apply to the litigation. The mediation was considered a 'face-saving' procedure despite the fact that one of the parties indeed failed to meet obligations given. At the end of the mediation the party who was guilty held the feast for the community and as a result of it the reintegration of the community took place and harmony was indeed restored.

Despite the overall effectiveness of the mediation under the conditions of the previous centuries, the modern state of China with the prevailing market economy and inspirations of becoming a socialist state based on the concept of Rule of Law, simply could not afford the simplicity of the overall procedure of mediation as well as its numerous disadvantages. The latter majorly refers to the organization of the mediation process as it is far from perfect.

The Western tradition of legal thought provides various methods of dispute resolution. Needless to say that the preferable way is the litigation, as it offers a possibility for the parties to enjoy their competences within the adversarial process and provide the testimony and arguments that would testify the rightness of their position. The judgment of the court is then made regardless of the will of the parties and is obligatory for both of them. The situation looks quite differently when it comes to mediation and arbitration as methods of dispute resolution. The latter are indeed preferable by the state as they decrease the financial burden of the state related to the maintenance of the court. In addition, arbitration as well as mediation requires less time, efforts and money-consuming processes of dispute settlement in comparison with the traditional litigation. However, a procedure for the dispute resolution is set by the legislative or other authoritative body. It applies to every case and is the same for everyone. It contributes to the creation of the unified legal positions in certain cases and prevents any abuse of rights, discrimination or power imbalance.

The situation in China was quite different until recently. The mediation in China often leads to the unjust consequences since the disputants are unequal in terms of wealth, power, status, knowledge etc. This feature of Chinese mediation has been pointed out even by the Chinese historians who claimed that mediation frequently operated under the conditions of different power relations. Therefore, if one of the parties was powerless then their chances to win the case were extremely small. For example, if the conflict arose between the parents and their daughter-in-law, the latter due to the inferiority of the position had little chances to restore the justice in the case due to the power of the parents and their social status.

Additionally, the weakened party usually agreed to the solution offered under the pressure of the circumstances. Moreover, contrary to the modern procedures where the party might oppose to the actions or decision of the mediator, the participants of the Chinese version of mediation process have been traditionally unprotected before the mediator. There was no institutional guard against mediator for the parties.

In addition, the mediation process is usually guided by the authoritative person. Thus, sometimes the parties find it hard to oppose the decision offered by the official and accept it. Such a practice absolutely contradicts the nature of mediation according to which the parties are those subjects who should elaborate the mutually-beneficial settlement of the dispute that would be compromising and acceptable for both sides. Speaking about the authority, one should also mention the influence of the clan or community upon one of the parties. Some of them just could not protest against the opinion of the clan and simply accept it though not agreeing with it.

Within the scope of mediation another concept has developed. It was named as the paternalistic conception of the state which is responsible for the well-being of the citizens. The state is the institution that is responsible for well-educating the people and preventing them from starting conflicts. This concept is usually severely criticized by the liberals. They consider the policy of the state which promotes certain conception of good life, limitation of business practices for the sake of the social order and administration. In the Western tradition the paternalistic concept of the state has been abandoned long time ago. The individualism is above all. The one and only goal of the state is to ensure that everyone enjoys equal opportunities in all fields. It is the individual, not the state, who is primarily responsible for the quality of their life and decisions affecting it. The state should not establish the ideology and make everyone respect one another, keep the harmonious relations and love each other.

Relying hardly upon the ideas of Confucianism, the party of the dispute and the mediator do not really care about the nature of the dispute at all. They seem not to care who is actually wrong or right since the process of peacemaking and harmony restoration is far more important than the subject matter of the case. As a result, the party which fails to meet the obligations is punished less than is due. The interests of peace and harmony seem to prevail over the interests of the individual. From this perspective, the interests of community seem to be more precious. The situation, is completely opposite in the Western tradition where the community, state and individual are confronting each other and the interests of the latter are regarded with the greatest respect and are above all. It seems that the Western practice of litigation corresponds more to the ideas of justice since everyone (theoretically) gets what he or she eventually deserves.

The litigation of the process of dispute settlement and the assertion of one's interests as well as gaining of justice was promoted even in the works of the Greco-Roman philosophers. They regarded litigation as a legitimate and moral way of dispute resolution. They never considered that the application to the court in order to fix injustice could be immoral. The philosophers stated that the task of the court was to deliver justice when it was broken. The task of the law was to determine the rights of the parties and establish a legitimate procedure for the protection of rights in case of their violation. The Chinese approach to the litigation and overall dispute settlement procedures seems to be too moralistic and conventional in comparison with the Western one.

The emphasis that was put on the importance of the mediation in all private disputes has caused the underdevelopment of the legislation, by-laws and case law related to the private issues. Contrary to the Western tradition, this actually was built upon the codified acts of Roman law, and China elaborated the dynastic codes that mainly dealt with the issues of administrative and criminal law. Therefore, at the moment one should infer that China does not have a traditional concept of the civil litigation and should either elaborate the rules guiding the civil procedure or adopt the normative regulations borrowed from other countries.

Finally, considering the role of mediation it should be noted that it primarily served as an instrument for maintenance of the existing social order preventing the society from the extensive splashing of freedom, progress and development. The citizens of China were not provided with the opportunity of challenging the traditional institutions that often seemed to function inefficiently. Litigation, instead, opened the door to the world of justice regardless of the vogue conceptions of harmony and dominance of peace. The judgments of the court play a more significant role than just resolving certain dispute. They restore the justice. The due legal process as well as the litigation is the prerequisite for the normal functioning of the capitalism, free market economy, liberty, democracy, individualism, consumerism etc. Of course, the alternative dispute resolution that refers to the arbitration, negotiation and mediation should be encouraged and promoted. But China should definitely give up upon the conventional approaches to ADR, including mediation, and set the clear rules that would guarantee the due process and equal opportunities for the parties of the dispute regardless of their social status, power or wealth.

In general, Confucius and his followers considered that the state, community and individual cannot strictly depend upon the black word of law since the latter cannot always foresee and regulate all the cases that might occur in practice. Instead, the citizens should follow the rules of morale. The latter should be also applied during the dispute settlement procedures. The case itself should always be considered through the lens of the moral principles. Moreover, even the criminal law and procedures were somehow influenced by the concept of morale dominance. For example, moral persuasion was perceived as the best crime-preventative practice. In case the criminality rate rose, the officials were blamed for the improper fulfillment of their duty of enlightening and educating of the citizens. Another example deals with the death penalty. The regime Luqiu suggests that multiple reviews should be held before the death penalty is executed. In addition, it provides the convicted with the right to appeal. Furthermore, the long-standing concept of Xuqiu Shenxing foresees the leniency towards women or those who cooperated with the law enforcement system.

The above-mentioned practice is of course not inherent to the Western tradition. However, in some way it is indeed closely connected with the beliefs that prevailed in the Mediaeval Ages when the morale and provisions contained in the canonic texts ought to be strictly followed. Moreover, the vague concept of morale corresponds to the same vague concept of the natural rights doctrine that was so popular during the period of Renaissance and is highly respected till nowadays. Just as morale, the concept of human rights was completely undetermined. It usually referred to the set of rights that were granted to the individual on the simple ground that it was human being. The Western concept of natural rights and the Eastern concept of morale are hard to implement and apply to the legislation. The right that is indefinite is hard to protect. Therefore, there might be a lot of speculations on the nature of morale and natural rights. The interpretations might be different and made in favor of someone’s interests. Therefore, both the Western and Eastern law doctrines should give up upon discussing vague concepts and implement the laws and by-laws that would provide everyone with equal opportunities and ensure the same interpretations in the closely-related cases.

Western and Eastern legal traditions also differ in terms of succession. The ideas of Confucianism have influenced the succession procedures and rules as well. First of all, according to the classic version of Confucianism, the fraternity was in important issue in the sphere of family life. The younger sisters and brothers were encouraged to follow the orders of the oldest brothers. Later on, this idea resulted in the dominance and prevailing role of the eldest male within the family structure. In terms of agrarian society, the powerful centre that was represented by the eldest family member was in great need due to the needs of production and consumption. However, nowadays when the majority of families are nuclear, the submission to the oldest members of the family is nonsense. The feudal system, within which the eldest males became the only heirs of the deceased, had gone and was eventually replaced by the equal distribution of legacy among all heirs.

Contrary to the Western tradition, Chinese laws on succession make no reference to the presumed intention of the testator. The succession itself is performed in accordance with the five main principles. First of all, the citizen’s rights to inherit private property are protected and respected. Secondly, men and women inherit their shares on the basis of equality. No discrimination is allowed in this regard. Mutuality of the duties and rights is to be preserved. The administration of the succession is performed on the basis of harmony and mediation. Finally, the succession laws also take into consideration the needs of those who are older, young or those who have been supported financially by the deceased person. Therefore, their share is usually ‘reserved’ for them by the provisions of law due to their vulnerable positions. The limited influence of the Confucianism upon the laws regulating the succession is explained by the adoption of the Western practices by the majority of the Chinese communities. For example, Hong Kong, the former colony of Great Britain, has established the English version of succession. In addition, the fundamental principle of benevolence that was offered by Confucius could hardly survive contemporary challenges when the majority of families are nuclear.

Considering the role of the family in Western and Eastern paradigms, it should be noted that the latter treated it with greater respect. The Eastern tradition has long been known for its respectful attitude towards family and community. On the contrary, in Western tradition family always played the minor role in comparison with the individual whose interests were above all. There is a clear distinction between private and public life in Western tradition. The paternalistic concept was replaced by the concept of the state which does not interfere with the private sphere of the citizen introducing the ideologies that need to be followed. Instead, it makes commitment to create all conditions that the individual needs for personal development and growth. In turn, the latter leads to the political stability and economic prosperity since no one is restricted in or denied their desire for the development.

Considering the differences and similarities between the Western and Eastern legal paradigms, one should infer that the latter was heavily influenced by the concepts of the Confucianism. The differences in legal systems were also caused by various socio-economic conditions of the societies. At the same time, the establishment of free market economy, capitalism and China’s commitment to be a socialistic state based on Rule of Law brings the two paradigms as close as never before.


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