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).
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