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The Role 01 Compromise in Chinese Culture Herrlee G. Creel Professor Bodde, in his essay on 'Harmony and Conflict in Chinese Philosophy', speaks of 'the Chinese mind, with its strong preference for working compromises in place of unworkable absolutes', and says that 'basic among Chinese thought patterns is the desire to merge seemingly conflicting elements into a unified harmony'.l The theme of the tendency toward compromise in Chinese culture is an important one, which has been studied in various aspects. In Bodde's essay, almost every page refers to the element of compromise as it appears in 'Chinese thinking on a sophisticated philosophicallevel'. Jerome Alan Cohen, in a paper on 'Chinese Mediation on the Eve of Modernization', has brought together a large body of material on compromise in recent times in legal processes, and in procedures related to them.2 1 believe, however, that the tendency toward compromise has even wider implications that have not, to the best of my knowledge, been thoroughly eχplored. In this paper 1wish, first, to eχamine some of these implications and, second, to seek to determine what relationship may eχist between the tendency to compromise and any of China's major philosophies. The prevalence of compromise in the Chinese legal system is well known. Rosser H. Brockman, in his study of commercial contract law, concludes that 'the courts favored the same type of mediation that was available outside the judicial system and contract claims that did reach final judgment were compromised with only partial performance being 1 Oerk Bodde, 'Harmony and Conflict in Chinese Philosophy', in Arthur F. Wright, ed., Studies in Chinese Thought (Chicago, 1953), pp. 51, 54. 2 Jerome Alan Cohen, 'Chinese Mediation on the Eve of Modernization'. California Law Revie叩 54 (1966), 1201-26. 133 Herrlee G. Creel required'.3 But this tendency toward compromise was not limited. to matters of what we would call civillaw. 4 Cohen remarks that 'although procedures for compromising civil and minor criminal disputes are not unknown in Western legal systems, the Chinese are preoccupied with "persuasion" to a point beyond that found in the \句est. This pervasive preference for mediation also distinguishes the Chinese Communist legal system from the Soviet system于 Compromise in a criminal case is illustrated by one reported by Buxbaum, brought in 1887. The plaintiff asserted that the defendant had gone to his house while he was away and had intercourse with the plaintiff's wife. The magistrate sent a runner to investigate the matter; but while the investigation was in progress the magistrate was approached by two conciliators, an elder and a scholar. They said that the parties were neighbours and had common relatives by marriage. The conciliators had 'advised and ordered the parties to offer each other betelnuts in a face to face meeting, and to be mutually harmonious thereafter'. Because the case was sub judice they had obtained a bond of accord from each of the parties, and they asked that the case be cancelled. (There is no indication that it was ever established that the alleged offense had, or had not, occurred.) The magistrate permitted the case to be cancelled.6 Another aspect of Chinese life in which compromise played a role was business. Commercial and financial activities have been 'at least formally' denigrated in China for a long time. Yet it appears that from around 1000 B.C. to the third century B.C. trade developed with relatively little interference, and we find it recðgnized that merchants had not only economic but also political importance.7 Commerce and industry Rosser H. Brockman, 'Commercial Contract Law in Late Nineteenth-century Taiwan', in Jerome Alan Cohen, R. Randle Edwards and Fu-mei Chang Chen, eds. , Essays on China~三 Legal Tradition (Princeton, 1980), p. 78. While Brockman's paper and that of Oavid C. Buχbaum (see n. 4) deal chiefly with conditions in Taiwan in the nineteenth century, for which abundant materials happen to be available, Brockman (ibid. , pp. 76-8) points out that for that time practices in Taiwan 'can be taken as typical of Chinese practices in general'. Concerning the much debated question of the extent to which China has had what we call civillaw, see Jean Escarra, Le Droit chinois (Beijing: Editions Henri Vetch; Paris, 1936), p. 76. Sybille van der Sprenkel, Legal Institutions in Manchu China: A Sociological Analysis (London, 1962), p. 103. David C. Buxbaum, 'Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu...

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Additional Information

ISBN
9789882200692
Related ISBN
9789622091894
MARC Record
OCLC
642685731
Pages
360
Launched on MUSE
2012-01-01
Language
English
Open Access
No
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