Chinese Natural Law tradition and its modern application: A response to Hon. Rollin A. Van Broekhoven

• Author: ZHANG Shoudong
• Pages: 86-114

FRONTIERS OF LAW IN CHINA

VOL. 13 MARCH 2018 NO. 1

DOI 10.3868/s050-007-018-0007-8

ARTICLE

CHINESE NATURAL LAW TRADITION AND ITS MODERN APPLICATION:

A RESPONSE TO HON. ROLLIN A. VAN BROEKHOVEN

ZHANG Shoudong

Abstract This article is a response to Morality And Law In A Global Society: A Place

For Natural Law Theory? The first part is a summary and comments on Honorable

Rollin A. Van Broekhoven’s survey of the natural law tradition and its relevance to the

analysis of the controversial U.S. Supreme Court decisions. Then it addresses Mencius

and the Chinese natural law tradition based on the researches of Hu Shih and John C. H.

Wu, and the affinity of the natural theories of Mencius and Thomas Aquinas are

explored. The third part analyses the sensational case of Yu Huan (2017) from the point

of view of natural law and takes it as an example of the relevance of natural law to the

theory and practice of contemporary Chinese law.

Keywords natural law, human nature, Thomas Aquinas, Mencius

INTRODUCTION ...................................................................................................................... 86

I. WHY NATURAL LAW ? A LIFE LONG REFLECTION OF AN AMERICAN JUDGE ............. 90

II. THE NATURAL LAW TRADITION OF CHINA: HU SHIH, JOHN WU AND NAT U R AL LAW

THEORY OF MENCIUS...............................................................................................96

III. RETHINKING THE CASE OF YU HUAN (2017) IN TERMS OF NATURAL LAW .......... 105

CONCLUSION........................................................................................................................ 113

INTRODUCTION

Natural law has been the conscience of law and the guardian of justice. It was

acknowledged, and it was neglected; it was praised, and it was condemned; yet it has

never been absent throughout history. The natural law per se has been the same or have

* () Master of Law, Law School, China University of Political Science and Law, Beijing, China;

Associate Professor, Law School, China University of Political Science and Law, Beijing 100088, China.

Contact: timothy1222@hotmail.com

The author thanks Dr. Guo Rui for his invitation to attend the natural law lecture of Judge Van

Broekhoven sponsored by him and the common law center of the Renmin University. And his suggestion for

writing a response to the Judge’s article based on the lecture is a valuable opportunity for me to do more

research on the subject so fascinating to me. And I also extends thanks to His Honorable Judge Rollin A. Van

Broekhoven for his friendship over the last years and his kindness of keeping sending me the drafts he had

been working on so I can finish my response in time.

2018] CHINESE NATURAL LAW TRADITION AND ITS MODERN APPLICATION: 87

much commonality among the mankind, differences lay only with its various theories and

their corresponding applications. For example, both as mature formulations of the natural

law, the theories of Mencius and Thomas Aquinas both are with the characteristics of

their respective times and cultures. The same thing can be said of the applications of the

natural law theories. They can be used by Judge Rollin A. Van Broekhoven1 to examine

the social and cultural issues such as abortion, same sex marriage and euthanasia. They

can also be used by the Chinese to comment on the sensational defense case of Yu Huan,

who he has killed a debt collector insulted his mother. 2 Generally speaking,

miscellaneous natural law theories in the West and China have individual or collective

features as the following: based on the nature of human beings; asserting the

anthropology and ontology of the oneness of man and nature or the participation of man

in divine reason; setting up universally applicable rules in accordance with human nature;

believing in the esteem and independence of human beings because of their abilities of

sincere reflection and self-examination; relying on people’s moral capacity of

commiseration and sympathy; acting on the principles of loving your neighbor as yourself

or not to do to others as you would not wish done to yourself; building up personal

virtues in order to advance a loving community. Furthermore, throughout history, the

natural law theories have been conducive to the development of human rights, to curb the

political power, to enhance justice by appropriate legislation and law enforcement so as to

produce a harmonious social order and a peaceful international community.

It is a well-known fact that the history of Western natural law theories has gone

through the vicissitudes of ebb and flow from the era of the Ancient Greek, Ancient Rome

through the Medieval era and the modern times all the way down to their revival after the

World War II. Rise and fall as they were, the natural law theories have never ceased to be

the essential part of the nourishment and development of legal theories and legal systems

all around the Western World. Whether the pantheism of the Ancient Greek and Rome or

the monotheism of the Christianity, all of them bear the fruits of natural law theories. The

reason why this is possible is because the natural law itself is not varying from place to

place, and it does not depend on the ethnicity and the specifics of history and culture. The

theories of natural law can be sensitive to race and time, but the natural law per se

remains the same for all the people at all the times because it is originated from the very

same human nature. The natural law bases its principles on the similarities and affinities

of the human beings. It provides theoretical and spiritual guidance for the building up of

1 Hon. Rollin A. Van Broekhoven, 󱃘󱘓󱍙󲴨󰦪󱺿󰸋󰦪󱃛󲢏󱍙(Morality and Law in

A Global Society: A Place for Natural Law Theory?), 4 󰦪󰦔 (Frontiers of Law in China), 626

(2017).

2 Javier C. Hernández & Iris Zhao, Court in China Reduces Sentence for Man Who Killed Debt Collector,

New York Times, June 23, 2017, available at https://www.nytimes.com/2017/06/23/world/asia/chinese-

court-debt-collector-ruling.html (last visited Jan. 22, 2018).