Boutique Digest | "Establishing Words as a Basis: The Culture of Contract in the Ritual Tradition"| Comparative Perspectives on Contract and Ritual Traditions (Excerpt)

"Establishing Words as Evidence: The Culture of Contract in the Ritual Tradition"

About the Author

Qu Jian, Associate Professor, Department of Law, College of Humanities and Development, China Agricultural University, Ph.D., University of Heidelberg, Germany (2020), J.D., University of Leuven, Belgium (2021), and ·Visiting Fellow at the Planck Institute for European Legal History (MPIeR), Germany Max (2018). He used to be the deputy editor-in-chief of Tsinghua Law Review and a member of the editorial board of the Chinese Dictionary · Legal Theory Dictionary, and his research interests are legal theory and legal history, comparative law and trust law.

Introduction

This book focuses on contract documents found inside and outside the Qingshui River Basin in Guizhou, and discusses the traditional folk contract culture in ancient China, especially in the Ming and Qing dynasties, from the perspective of ritual tradition.

1. Comparative Perspectives on Contract and Ritual Traditions

(1) Two names of the contract

"Fu Bei's method, the ancient use of bamboo and wood, such as Fu Jieran. To the week and use the substance, the bond deed is still in place. After that, follow each other and never give up. ¹This sentence is the opening sentence of a "deed book" published in the late Qing Dynasty to teach people how to write contracts, which lists many terms that are not familiar to people today, such as "Fu Bei", "quality agent", and "bond deed". In today's understanding, these seemingly ancient terms refer to a certain kind of "contract": it is generally believed that "a loan contract is called a fubei, a contract of giving and receiving is called a written contract, and a contract of sale, mortgage, or pawn is called a pledge"².

While it is simple enough to use "contract" to explain those ancient terms that are far from the past, in today's Chinese legal context, even "contract" itself has become an archaic term³ – the more well-known term is "contract"¹ in both academic and popular contexts. Thus, the thing referred to by "contract" seems to have two names that are inherited chronologically: it often appears as "contract" in ancient texts, and as "contract" in modern discourse. This simple correspondence between the ancient and the modern actually has a kind of conceptual shift, although innocuous but not very rigorous—neither in ancient times nor today, "contract" and "contract" cannot be equated with each other in a strict sense. ² However, in the general perception, the interpretation of the concept of "contract" has quietly evolved into "(Chinese) ancient contract".

Further, in the context of the Eastward shift between Western France, the term "contract" is often used to translate the corresponding words in foreign languages (e.g. contrat in French, Vertrag or Kontrakt in German, contract in English or contractus in Latin), and thus to a considerable extent defined by the latter definition. In many cases, people's understanding of the concept of "contract" is not directly related to the combination of the words "合" and "同", but more as a symmetry of legal terms outside a certain Chinese context. As a result, this has actually formed a logical chain that uses "Western law" to interpret "contract" and "contract" to understand "contract" across ancient and modern times, as well as China and the West—using "West" to metaphorize "present", and "present" to interpret "ancient". It can be found that with "contract" as the foundation, many discussions about "contract" have been closely linked to the concept group outside its inherent context.

Therefore, if we are accustomed to understanding "contract" in terms of "contract", we will face an inevitable comparative perspective in contract research. When discussing "contracts" in China, it is often implied that Western or modern "contracts" are used as a "control group". As a result, a series of questions that may be familiar to people have begun to emerge: whether Chinese or Chinese society lack a "contract spirit", whether (ancient) China is (like the West) a "contract society", and so on. ²Behind these questions, in fact, there is still a kind of temptation based on a comparative perspective, that is, whether a "contract" is also a "contract"? And further, is the "contract" also no less than the "contract"? Therefore, a "final" question that a considerable part of the ancient Chinese contract research institute tries to answer seems to become, can we use empirical evidence on "contract (law)" to answer the question that there is no "contract (law)" in traditional China?

Of course, this phenomenon does not occur only with the twin concepts of "contract" and "contract". This seemingly paradoxical situation is a common existence in today's academic context and the living world. All of this can be summed up as a kind of "differentiation" that "China is not like this". ¹In a broader context, "Chinese legal historiography" as a discipline seems to have a similarly comparative vision intrinsically. It is believed that this discipline "has been burdened with the mission of the times since its birth to depreciate the ancient law with the Western law, or to use the ancient law to counter the Western law"². Its initial basic mission was also to respond to the question that there was no law in ancient China, "so from the very beginning it was hastily branded as 'salvation'." ³ In this way, scholars of Chinese legal history have tried to prove in various ways that there was also "law" (in the Western sense) in ancient China, on the basis of determining the basic facts. As a result of these efforts, like the "contract", modern "law" has also gained some symmetry in its ancient Chinese context, such as the well-known "legal order"4. In the final analysis, this work from a comparative perspective is actually an attempt to seek, clarify, or construct a counterpart in another context. People often refer to work that seems to have nothing to do with the present with a little irony or self-deprecation as the "useless use" of organizing old papers. But with the addition of a comparative perspective, these efforts may be given a certain connection to reality. While still to be realized, these efforts should be much more important than improving museum displays, but more about continuing the past and the present.

Obviously, this kind of "reconstruction" in an ancient context is extremely difficult, both for "law" and "contract". It first needs to analyze and examine a large number of basic materials, and secondly, it needs to explain and organize these potentially discrete and scattered facts in an appropriate way and rationally, so that they can be presented in a systematic way and recognized by today's people. Ideally, the system should also have considerable explanatory power to have an impact both inside and outside its original domain. Although it has long since passed, it is still reminiscent of the work of Roman jurists and their significance in the subsequent development of law.

The two names of the contract reveal the pervasive comparative horizon in the relevant discussions, and the underlying premises or foresights behind this horizon. It should be noted, however, that this pamphlet does not exclude, or even welcome, the necessity of this vision when discussing contracts. Comparison often means emphasizing the difference between China and the West, but the so-called problems between China and the West are, to a large extent, often ancient and modern. The difference between "time" (ancient and modern) and "empty" (Chinese and Western) is no different in creating a comparative situation. In the inevitable comparative perspective, antiquity is tantamount to a foreign land. Therefore, to visit this "foreign land" of antiquity based on the present is not a comparative investigation. Methodologically, for the investigators who go deep into it and "rush in"¹, their gaze often needs to travel back and forth between different time and space; Only in this way will we not be unable to appreciate the extraordinary view of the dangerous distance, but also avoid losing our way home due to the wonder and wonder of the "foreign land".

(2) Contracts in the ritual tradition

Before we get into the discussion, it is necessary to briefly explain the relationship between contract and the ancient Chinese social legal order, and the place of contract and contract law (if we can call it that) in the Chinese ritual tradition.

The discussion of "contract" in this booklet is based on the recognition of the fundamental role of "contract" in the construction of traditional Chinese social order. It is generally believed that "to understand the civil law order of traditional Chinese society, we must start with the 'contract'. ¹As the saying goes, "The government has the law and the law, and the people follow the private agreement." If we divide the public and private domains, in addition to the formal rules and regulations, the construction and maintenance of the order of people in the private sphere related to land, money, and even marriage and funeral succession are to a large extent based on contracts presented in various forms. In the extremely broad social field of "politics and law", which is less considered, the contract happens to exist as the basis for the construction of order. Of course, this is not to say that the contract itself is the answer to all the problems of order, but the expression of intent, and it is precisely because of the common linkage between the contract and many social systems that a relatively complete and effective system of rules has been formed. Although the internal operation mechanism of this system still needs to be carefully analyzed, the fundamental role of contract in the ancient Chinese social legal order cannot be ignored.

The construction of this ancient Chinese legal order is depicted as following a "ritual tradition". Under its subdivision, the ancient Chinese "ritual law" consisted of three subsystems, namely "ritual code", "legal code", and "customary law"². Among them, "customary law" is considered to be "the 'living law' of the people", a kind of "normative group that covers all aspects in space and full in time, and is a 'lawless law' that is ubiquitous and ubiquitous at all times"1. Civil relations in ancient China basically depended on the adjustment of this normative group, "so that no matter how the dynasties changed, the civil relations between goods and debts, marriages and funerals, and the inheritance of ancestral blood and property could be maintained without corruption"2. It can be found that the application field of these normative clusters, which are called "customary law", overlaps with the field regulated by the contract to a large extent, and many of the contents can actually be understood as some kind of contractual norm. If the cluster of these norms is called a kind of "contract law", then the above description can be used to find the place of contract and contract law in the whole ritual tradition. At the same time, the value level of contract norms should be embedded in the value guidance of the ritual tradition. Although the matters concerned by the contract are a little more trivial than the content of the rituals that regulate the major events of the state, as the "rites and customs" mentioned in the "Shenzi", the connection and interaction between the rituals and customs are actually very close, and the contract and its culture can be accommodated and discussed in the context of the ritual tradition. In fact, this is an inscription for "Contract Culture in the Ritual Tradition"; Therefore, this booklet attempts to outline some aspects of traditional Chinese contract culture within this broad framework.

In addition, as an explanation of the basic research methodology, the two names of the contract are presented at the beginning without too much length. Now that we have clarified the comparative perspectives attached to contract research, it is necessary to make a basic analysis of the two different concepts of contract or contract in China and the West. Heidelberg and Wendouzhai are two seemingly different examples of different styles at opposite ends of Eurasia. Of course, it must be noted that the choice of both illustrations is extremely personal. As a foresight and background, the former can be used as a metaphor for the development of Western contract culture, in addition to being the author's place of study. The latter is the main focus of the book, as the contractual instruments it contributes form the basis of the book's discussions. In addition, the discussion in this book also attempts to regard these slightly "narrow" materials as a typical example of the broad panorama of the Chinese contract. In the above self-defined sense, the combination of "Heidelberg and Wendouzhai", which would have been slightly stunned at first sight, can stand side by side, and is presented in this small book as a concrete presentation of the comparative background of ancient contract law.

Note: omitted

Source: The Culture of Contract in the Ritual Tradition

Written by Qu Jian

Edited by Wu Shangqiu Ge

Second instance Xiao Zhiyan

Third trial Qi Dingjiang