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	Murdoch University Electronic Journal of Law

Dispute Resolution by Officials in Traditional Chinese Legal Culture

Author:	Bobby K Y Wong LLB Barrister; Lecturer, Hong Kong Polytechnic University
Issue:	Volume 10, Number 2 (June 2003)

Contents:

• Introduction
• Confucianism in Action - Dispute Resolution in General
• Fact-Finding
• Adjudication as Education
• Dispute Prevention and Officials' Conduct
• Family in Traditional China
• Legal Rights and Moral Obligation
• The Oppressive Way
• Conclusion
• Notes

Author's Note: I am grateful to the anonymous reviewer for comments on an earlier draft. Needless to say, responsibility for any errors remains mine.

Introduction

1. Since the Han dynasty, Confucianism had greatly influenced the ways in which disputes were resolved in traditional China. The emphasis was on prevention and peaceful resolution of disputes. The role of law was not so important as custom, people's feeling or Confucian propriety. Most disputes were settled without the intervention of officials. Nevertheless, bringing disputes before officials remained the last resort. It also gave final determination of the matter. As such, how officials handled disputes influenced to a great extent other institutions of dispute resolution. Some officials were upright and able. Others were corrupt and incompetent.[1] Corruption and outrageous decisions are no doubt reasons for people not to bring disputes before officials. But more importantly, dislike of litigation also reflects the peculiar Chinese culture.[2] The ways officials handling disputes played the essential role in forming the culture of dispute resolution in traditional China.

2. Although studies of law and dispute resolution in traditional China are numerous,[3] there are very few analyses of the ways officials actually resolved disputes brought to them. This article serves to fill this gap by providing a thorough examination of how officials in traditional China resolved disputes. It shows that the procedures are rather flexible. More strikingly, solving the dispute in issue is never the official's main concern. Rather, the whole process is taken as a means to achieve other goals. The paper ends with a discussion of the influence of the past in the PRC legal system.

   Confucianism in Action - Dispute Resolution in General

3. Confucians were not mere theorists. They took it as their mandate to create a Confucian utopia on earth. Whenever possible, they would put theory into practice. In handling disputes brought before them, the concern of Confucian officials was not to decide which party was right or wrong. Rather, the process was, as a means to achieve other more important objectives, given much more attention. The main objective was to keep society in harmony, the central theme of Confucianism and the traditional Chinese culture. Dispute resolution was never as important as dispute prevention. Dispute resolution was often used to teach the disputants the importance of keeping good relationships with others. For the purpose, officials might refuse to hear the case if they thought that the case was unreasonable, the plaintiff's case weak, or the matter of no significance to the parties.[4] In resolving a dispute, legal right generally gave way to other extrinsic consideration, such as a moral duty to help the poor.

   Fact-Finding

4. In order to resolve a dispute, the official must first know the relevant facts. Unlike a judge, he did not 'decide' or 'find out' by referring only to the cases as stated by the disputants. He might believe neither of them. The task was to reveal 'the truth'.[5] For the purpose, the inquisitorial approach was usually adopted. The idea of due process or natural justice was unknown in traditional China and rarely the concern of officials. So long as the truth was revealed, the official was praised and the people tolerated to a large extent irregularities in the process. Useful tricks were recorded to enlighten other officials how to reveal the truth in difficult cases.[6] Many officials in traditional China took the King Solomon approach. The following is an example in the Han dynasty.

   It is a dispute over ownership of some cloth. After hearing what the disputants (A and B) and other witnesses said, the official could not decide whether A or B was the truth owner. The cloth had been used as an umbrella by both of them and there was, other than the statements of A and B, no evidence to prove ownership. The official then accused the disputants of bothering him with this trifle case in which only some cloth of very low value was involved. To solve the problem, he ordered that the cloth should be cut into two equal parts and each man got one. After A and B left with the cloth, he sent runners to follow them and see what their responses to his order would be. He was told that A was wholly satisfied with the decision and B complained that it was wrong. Knowing that, he ordered the runners to bring back A and B. Upon interrogation, A finally admitted that he was not the owner. As revealed, the fact was that it started to rain when B was taking the cloth to the market for sale. B used the cloth as umbrella and also allowed A to get shelter under the cloth. Later, A wanted to take the cloth out of momentary greed.[7]

5. Tricks like this should not be seen as mere manifestation of the wits of officials. The praise of them has great cultural significance. As indicated in the following case in the Song dynasty, it was usually linked to the theme of dispute prevention.

   A river separated two counties. There was some fertile land at the middle of the river. People of the two counties had disputes over the land for many years. Many officials had failed to put an end to the matter. Finally, an official decided to end the matter once and for all. He conducted an investigation jointly with officials of the other county. All the records were checked and the land surveyed. Since the investigation was thoroughly done, the people accepted the result and dared not dispute over the land any more.[8] The facts of the case are hardly interesting. What is significant is however the commentary given by the editor. It is said that the approach was one of the means to prevent disputes. The revelation of the truth left no room for the crooked to take advantage.[9]

   Although dispute resolution was indeed one of the duties of the official, the emphasis was, as expressed by both the official and the editor of the collection of cases, on maintenance of societal harmony.

   Adjudication as Education

6. No matter how disputes would be resolved, harmony was disturbed whenever people were in dispute. The best way to maintain harmony was therefore dispute prevention. In traditional China, dispute resolution was closely linked to dispute prevention. To Confucian officials, the rule of thumb in dispute resolution was neatly expressed by the authoritative aphorism of Confucius: 'As to hearing lawsuits, I am no different to an ordinary person; it is best to prevent all disputes.'[10]

7. This mentality explains why Confucian officials did not, on many occasions, resolve disputes brought before them but gave instead the parties a lesson on Confucian precepts. In so doing, they tried to persuade disputants to drop the case completely or, at least, resolve the matter themselves amicably. Sometimes they were successful. Du Ji was one of the Confucian officials adopting the above approach. It was said that people respected him so much that most disputants would take his advice and resolve the matters themselves. If the disputants failed to do so and intended to bring the matter before Du Ji again, they would be criticised by local people as disobedient. It was said that the society had gradually became more harmonious with very few disputes.[11] Of course, if the people paid no respect to him, this approach would not have been successful.

8. Sometimes Confucian officials used other methods to achieve the same goal. They might act as an adjudicator. However, giving a judgement was never the main goal of the whole process. The ultimate aim was again the disputants' realization of the immorality of disputing with others. It was hoped that they would, in the end, voluntarily withdraw the case and peacefully settle the matter themselves. The following case in the Qing Dynasty illustrates how this could be done.

   A man had two sons. His sons had their own families. After he died, his sons fought over some land which formed part of his estate. At first, some senior members of the clan tried to conciliate. But the conciliation was not successful. The matter was finally brought before the local official. He found out that the dispute was in fact caused by the deceased. Some years before his death, he declared in a letter that the land should be given to the eldest son of the elder son when he died. In a will made at his death he however gave the land to the younger son.

   At that time, the law of succession was not so developed and was rather primitive compared to the modern law. There was no established rule of any sort to deal with the situation. In the circumstances, the official could simply have ordered that the land to be shared equally by the two sons. No one would criticize such a decision as unreasonable or unfair. But the official did not end the matter with such an easy and acceptable solution. Instead, he first blamed the deceased for causing all the trouble. To punish his foolishness, he said that he was tended to open his coffin and expose his body. The sons were scared by what he had said and dared not say anything. He then said that he did not know what to do but one decision had to be made one way or the other. He ordered that the case should be decided in this way: the two sons would be subject to the same torture and the one who yielded first would get nothing. He then asked the two disputants to choose one leg that they thought would not feel any pain for the test. Both of the sons replied that every leg felt pain when it was tortured.

   It was at this juncture that the first part of the lesson began. The official first drew an analogy between the legs of a man and brothers. He condemned the behaviours of the disputants. After that, they were chained together. At first, they turned their backs to each other in hatred. They spoke not even a word to the other. After a few days, they felt remorse and turned to face each other and sighed. Knowing that, the official brought them back to the yamen. The second part of the lesson then began. The official said that the disputants were in such a difficult position because their father had two sons. If he had had only one, there would have been no problem at all. In order to prevent their own sons from suffering the same in the future, he ordered that each disputant could have only one son living with them. This unexpected statement frightened them out of their wits. They swore that they would not dispute over the land any more. Their wives also undertook not to do the same. To show that the remorse was genuine, they even offered to donate the land to a temple for charity. In the end, the matter was settled by vesting the land jointly in both disputants. They also undertook on behalf of their descendants never to dispute over the land.[12]

9. The official knew full well that he could have decided the matter by dividing the land equally and gave one part to each disputant. But he did not do so. Instead, he made a great effort to let them realize the impropriety of their behaviour. Resolving the dispute in this way, he hoped that the families of the brothers would live in harmony in the future.[13] He did this for a good reason. For Confucians, a utopia without dispute was not unreachable. According to the historical classic, Shi Ji, such a utopia existed in the ancient Zhou Dynasty when Zhou Wen Wang governed the Kingdom of Xi Zhou. It was said that the Kingdom was so well governed that no criminal sanctions were heard of for forty years.[14]

10. Zhou Wen Wang was also known as a great mediator and arbitrator. People living afar often brought their disputes before him for decision. It was recorded that two people agreed to have their dispute mediated by Zhou Wen Wang. When they were in Western Zhou, they saw that people in the Kingdom were very polite and conciliatory. They felt ashamed and said to each other, 'Our dispute is regarded as a shame by these people. It can only bring more shame to us if we bring the case before Zhou Wen Wang.' Each of them made some concession and the matter was resolved amicably.[15] Similarly, it was said that people in Lei Ze often had disputes with others. Then Shun, one of the greatest kings in Chinese myth, went to live there. After Shun's teaching, people in Lei Ze became so conciliatory that no disputes were heard of.[16]

11. Shi Ji was written in the Han dynasty. It may reflect more the thoughts of the author rather than recording facts in the past.[17] It is likely that what is described above never happened. The story however sparked off the desire of many Confucians to form such a utopia. To them, education was the means to achieve the goal. The basis of this belief was the Confucian concept of human nature. With the exception of a few, of whom Xun Zi was the representative,[18] Confucians, Mencius in particular, accepted that human nature was basically good, or at least not inherently bad.[19] It was therefore possible to turn everyone into a Confucian gentleman by education. A gentleman should always act in accordance with li, the externalisation of Confucian moral precepts. More importantly, li had an educational role to play. It was regarded as 'an instrument for training character, and nourishing moral force. In a society where li prevail[ed], unbridled self-interest [would be] placed under effective control from within.'[20] When everyone acted in accordance with li, there would be no dispute. If there was a dispute, the only reason was that the disputants had not received enough education. It was the duty of the 'parent-officer' to teach ordinary people the proper behaviours. The following incident provides an example of the way in which Confucian officials handled disputes.

    Lang Mao was a Confucian official. In a case a man was not on good terms with his stepbrother. They complained about each other. Other officials advised Lang Mao to impose heavy penalty on the disputants. He said, 'They detest each other. Punishing them would only make them hate each other even more. That is not the proper way to educate people.' Instead, he sent some respected elderly to advise the brothers on the benefits of maintaining a good relationship. Finally, the brothers were moved and realized that what they did was wrong. They were remorseful and came to Lang Mao for punishment. But Lang Mao did not punish them. Using this as an opportunity to educate people, he gave them a lesson on Confucian moral precepts. It was reported that, his lecturing was well received and the brothers had no disputes any more.[21]

12. To Confucian officials, it was wrong to use law and punishment for the maintenance of social order: 'If only law is employed to prohibit people from acting improperly, they will follow the law to only avoid punishment. They would not know that it is shameful to do what is prohibited. Teaching people morality and li can also prevent people from acting improperly. Furthermore, they will realize that it is shameful to do those things that they should not do.'[22]

13. The officials in the above two cases served as good examples. Great efforts were made to let the parties realize that it was improper to dispute others, especially other members in his family.[23] Most importantly, they were successful.

14. The judgement itself might also be a tool of education. Some officials persuaded people to avoid dispute by explaining to them the bad consequences of litigation. The following judgement is a typical example:

    Neighbours should be on good terms with one another. If they are in good relationships, a man may get support from his neighbours when he is sick or in need of money or help. It would be good to all. If there is a dispute, none of them can get help when it is needed. That would be in no one's interests. Nowadays, only a few people understand this. Often, people fight for their immediate interests. They do not consider their own interests in the long run. Whenever there is exchange in words, they would bring the matter to the local official, forgetting their relationships with their neighbours. But what can they get from litigation? They need to go a long way to the yamen. Time is wasted. Runners are to be paid. In the yamen, they would be scared or even be caned. The outcome of the case is at the discretion of the officials. Even if a man wins the case, the other party may revenge in the future. And there will be no end to it. No one can be sure that he will never be in trouble. If his relationships with neighbours were good, they would give him a hand when it is needed. If they were not on good terms, they would add to his problem. If so, today's winning becomes tomorrow's big loss.....The parties are given a copy of this judgement. They should bring it home and show it to the local people as one form of education.[24]

    Clearly, the last sentence of the judgement shows that the official intended to take the matter as an opportunity for giving a lesson to all the local people.

15. For the purpose of educating people, officials might even handle cases in very strange ways. For example, in a dispute over properties between two brothers, the officials did not even listen to the parties. To let them realize the morality of love and care between brothers, the brothers were ordered to call each other's name. According to the record, this extraordinary method was successful. After each calling for about forty times, the disputants wept and withdrew the case.[25] It is doubtful that the dispute was resolved once and for all. The brothers might withdraw on momentary impulse. Worse still, they might do so because they considered that the official was unable to resolve the matter. Handling cases in such manner, the process of dispute resolution became unpredictable. It would be an art unchecked by any rules rather than skill that could be acquired through training and practice.

    Dispute Prevention and Officials' Conduct

16. Confucian officials generally took the view that their behaviour had a bearing on dispute prevention and resolution. Ability and technique of adjudicating cases were irrelevant. Confucius himself did not see such talent as a criterion to decide whether an official is good, capable or qualified. His view was that any clever man could decide a case. Confucius praised instead gentlemen who could influence, by their own conduct, people to behave righteously. He was convinced that, in this way, disputes would be eliminated. To Confucians, '[a] well-ordered society is a result of behavioural exemplification of the [Confucian gentleman's] moralistic virtue.'[26]

17. As a result, Confucians emphasised the use of example to educate.[27] Confucius claimed that a person had to behave properly before criticizing others. This was especially true for officials, since they were all gentlemen and 'parents' in the 'communal family'. A local official might put the blame on himself if the locality had too many disputes or the disputants refused to settle. It was said that when a father and son brought a case before Confucius, he took the dispute as evidence of his own failure. He locked himself in his room and pondered bitterly what his mistake could be.[28] Taking this as example, Confucian officials might even resign in similar circumstances.[29] In a sense, Confucian officials took upon their shoulders a moral duty to prevent disputes. They became personally involved in disputes brought before them. It was rather common that Confucian officials might even give money to the disputants out of their own pocket in order to settle the matter.[30]

18. The following case shows that some officials might go even further.

    There was once a local official whose mother was knowledgeable and of high morality. If a dispute was difficult to resolve, he often sought his mother's advice. In one case, a woman complained that her son did not treat her well. Being himself a filial son, the official intended to punish the son in accordance with the law. Before doing so, he discussed the case with his mother. She said, 'Hearing is not as believable as seeing. In any event, the man has not received any teaching on propriety. How can you punish him? You better ask the woman to take her son here. I will live with her and you with her son. Let the son see for himself how you respect me. Perhaps he will not do such wrongful thing again.' The official took her advice. When the woman lived with his mother, he respected her as if she had been his mother. Observing how the official behaved for only a few days, the son felt ashamed and wanted to take his mother home. The official's mother however thought that the time was not ripe to send the woman home. She said, 'On the face of it, the man is ashamed now. But deep in his heart, he may not think so. Better let him stay with us for some more time.' After staying for about twenty days more, he swore to the official that he would be filial. The woman also pleaded with tears that his son was sincere this time. The official then let them go. The remorse of the man was genuine. After the incident, he treated his mother well and became famous for his filial piety.[31]

19. In the above case, the official did not handle cases independently. He always asked his mother for advice. The interesting point is that it never occurred to him or others that this practice might be improper. The family of the official was involved in the resolution of the dispute. Nowadays, it might be that a very few judges are, to some extent, also influenced by their family members, Yet, such influence is generally considered as improper and any overt influences are not tolerated. But the official's conduct was praised.[32] Further it is important to note the moral obligation which the official (and his mother as well) took upon himself to rehabilitate the man.

    Family in Traditional China

20. The case mentioned in the preceding paragraphs is about a dispute between a woman and her son. The law punished people who were not filial. The prevailing morality also condemned him. Initially, the official intended to punish the man. If he had done so, he would have followed the law. With the intervention of his mother, the nature of the matter changed. What was a lawful complaint became a moral issue. The matter was the concern of the official's family. This family decided to help the man's family. Here the importance of family as the basic unit in traditional China shows.

21. In traditional China, an individual was first a member of the groups to which he belonged.[33] Family was the basic societal unit and played a pivotal role to maintain social harmony.[34] The concept of family was extended to all sorts of human relationship. For instance, a disciple should always treat his master like his father. It would be outrageous for a disciple to dispute with his master. The morality that to sue his master was inexcusable is illustrated in the following case.

    A master borrowed one hundred and sixty taels of silver from his disciple. When the master died, he still owed his disciple seventy taels. The debt eventually became the responsibility of the master's brother. However, he was too poor to repay the debt. Thirty years after the master's death, the disciple sued for the debt. With interest, the amount had become more than three hundred taels. Rejecting the claim, the official held that it was intolerable for the disciple to sue for the money which his master had borrowed from him, especially with such high interest. Yet, as the brother was willing to pay, the disciple could have recovered the seventy taels had the disciple not argued the case before me. Now, but for the fact that the brother of the disciple was also an official, he should have been caned for his vigorous argument which showed no remorse on his part. It was also found that the master had been treated in a very mean manner. The seventy taels, taken as remuneration for the teaching of the master, could not be recovered...to warn those who treated their master without respect.[35]

22. The family-centred societal structure determined the interpersonal relationships in traditional China. It is in fact one of the essential features of the Chinese culture.[36] With this understanding in mind, it would be of no surprise that the family of the official in the case mentioned above took on the responsibility related to some internal matters of another family.

    Legal Rights and Moral Obligation

23. The case of the master and his disciple also tells us something about legal rights in traditional China. The judgement stated that 'the disciple could have recovered the seventy taels had the disciple not argued the case before' the official. It shows that the plaintiff could not get what he wanted, despite the fact that he was in law entitled to the amount claimed. This indicates that legal rights of the parties might not be the decisive factor.[37] That was particularly so if the conduct of the plaintiff was considered morally improper. The following case is instructive.

    There was a dispute between two widows. One sued another, the owner of a pawnshop, for the return of a sum of money. The plaintiff alleged that her husband had deposited the money. The defendant denied the claim, contending that there had never been such a deposit. The plaintiff could produce no evidence to support her case. On the other hand, the defendant has some records (though quite suspicious in certain aspects) to rebut the plaintiff's case. In order to settle the dispute, the official ordered the defendant to pay an amount equal to one third of the alleged deposit to the plaintiff. The defendant was not satisfied with the decision and through a third party again brought the case before the official. The official upheld the original decision and gave the following judgement:

    The original decision was made for the purpose of settling the dispute...as well as encouraging the defendant to help the poor plaintiff. Having due regard to people's feelings and propriety, the plaintiff had not been unfairly treated...although both parties were widows, there was a great difference. The plaintiff was poor. The defendant, as the owner of a pawnshop, must be rich. To the defendant, the amount was only a drop in the ocean. The cardinal rule required that the excess must be reduced to the benefit of those in need.[38]

24. To one who cherishes legal rights, the above decision is quite unacceptable. First, against the relatively stronger evidence adduced by the defendant, she was ordered to pay some money to the plaintiff. Second, there were no legal grounds for the amount to be paid: why one third? Without counterclaim or set off, if there was such deposit, it had to be fully repaid. If not, no payment should at all be made. The decision was however not arbitrary. In determining the amount to be paid, the official took into account the financial situations of the parties. Had the defendant been richer or the plaintiff poorer, the amount might have been more. Yet the rationale for the order is more significant. The official did not even decide the issue. In addition to settling the dispute, the emphasis was the moral obligation imposed upon the rich to help the poor. The legal rights of the defendant were completely ignored. This case vividly illustrates that in traditional Chinese culture, the concept of rights is moral rather than legal. And the influences of the past still persist. Even in today's PRC,

    No one ever has an absolute legal right. All the circumstances, of which law is only one, are to be considered to determine the rights of the parties. It is best if morality and law are in harmony. But if they are in conflict, legal rules normally yield to justice. Law, being merely a code of conduct made by people, should not be and often is not followed, if it is in conflict with their sense of what is right, the feelings of the people upon which the concept of justice is founded.[39]

25. This moral concept of rights could on the other hand safeguard the gentleman against infringement by the inferior (Xiao Ren). For instance, if a rogue by improper but 'legal' means became the owner of some properties, he might be forced to return it to the victim.[40] With this consensus, device might be invented to protect the interests of vulnerable parties. The following case shows how this may be done.

    In the Han dynasty, a man (C) brought a case to the local official for a valuable sword in the possession of his elder sister. The official found that C's father was very rich and had a wife and a concubine. C was borne by the concubine and his elder sister the wife. His sister was the black sheep of the family. The concubine died in giving birth to C. C was only five when his father was seriously ill. Before his death, C's father made a will in the presence of his clansmen. The will stated that, except the sword, he gave all his property to C's elder sister who was requested to keep the sword for C until C reached the age of fifteen. When C was fifteen and asked for the sword, his sister refused to give it to him.

    On the face of it, this was a simple case. In deciding the case, the official however adopted the following line of reasoning. He concluded that the whole matter was a plot of C's father. His true intent was to leave the estate to C. If he had stated in the will that he left all the properties to C, his daughter would have done anything to get them. Since C was at that time incapable of protecting himself, his daughter would surely have been successful. Further, had he left the estate to C when he died, C would have been incapable of managing and protecting it. In the circumstances, it would be better to let his daughter manage it before C became a grown-up. The official ruled that the sword was a symbol of determination. C's father stated that the sword should be given to C when he was fifteen, because C would then be cable of living independently. Realizing that his daughter would not give the sword to C, C's father anticipated further that C would sue for the sword. It was his hope that the official hearing the case could appreciate his plan and act accordingly. Having come to the conclusion, the official decided that the sister should return not only the sword but also all the estate to C. He stated that the decision was fair. She and her husband had enjoyed the wealth for ten years. The local people generally admired his decision.[41]

26. Initially, the subject matter of the above case was the sword. C did not require his sister to share any other properties with him. No one would have blamed the official if he had ordered that the sister should return only the sword to her brother. If legal rights had been the only concern, this would be the only possible decision. No matter what the intent of the father might be, the daughter was the legal owner of the estate, all the relevant legal or customary procedures having properly been done. Yet the official paid no attention to all these. The reasoning for the decision was not only out of the imagination of the official. Local people agreed with him generally. This could happen only in a society with a moral concept of rights. The whole of the inheritance became the subject matter, although C originally sued for only the sword.

27. As shown, with a prevailing concept of moral rights, officials might exercise their discretion to give morally correct decisions without much constraint. Yet, this statement should not be over-generalised. Legal rights, such as proprietary rights, were generally observed and respected.[42] They were ignored only if the circumstances so warranted. Legal rights might be overridden if, for instance, a man had obtained the properties through improper means or he enforced his rights in defiance of the prevailing morality.

    The Oppressive Way

28. Since legal rights often yielded to prevailing morality, officials might handle cases in an oppressive manner if one or both of the parties had done something morally wrong. This was particularly so if the disputants were stubborn.

    There was a dispute about the distribution of an inheritance in a clan. A man was not satisfied with his share. He brought the case to a local official. The lawsuit had dragged on for years. In an attempt to settle the matter once and for all, a new local official gathered all the clansmen and threatened them with the ill consequences of litigation. He told them that there were ambiguities in the documents, and advised them to resolve the dispute by giving some money to the man and letting him go away. The clansmen replied that they had tried but failed to do so. Hearing that, the official held that the clansmen should give some money to the man. To prevent dispute in the future, the man was ordered to leave the locality and never return.[43]

    The commentator of the record approved of this decision:

    As the discontented party was suffering from poverty and others from hardships of litigation, there was no point in deciding whose conduct was right or wrong. All the parties would be happy to obey the order that put an end to the matter. Giving some money to the poor and discontented man made it possible for him to go away. In doing so, the other clansmen could avoid all the vices of litigation. Although the discontented man got not much, he would no longer live in poverty. Further, litigation in the locality decreased. The official was indeed good at resolving disputes.[44]

29. Although that may be a very difficult case, the point is that the official did not even try to determine the proportion of inheritance that each party was entitled to. Further, no one cared whether or not the procedure adopted in the process was oppressive. To maintain harmony, the official ordered the discontented clansman to leave the province. He must have been unwilling to leave, or the dispute would long have been settled. The dispute could have been settled by the payment alone. The ostracism served only the purpose of preventing dispute in the future.

30. A case in the Ming Dynasty shows that the obsession of some officials in maintaining social harmony might lead to shocking decisions. It was a dispute over land. The plaintiff's case was that his family had owned the land since time immemorial. He produced documents to support his claim. He claimed that the defendant had wrongfully claimed the land and trespassed on it. The defendant insisted that he was the owner of the land and adduced documents to prove his title. Without even attempting to determine who the true owner was, the official gave his decision which contained the following opinion:

    The land is not very valuable. Yet the two parties never stopped disputing over it. Their conduct could only be a waste of time and money. It is no good at all. For the purpose of settling the dispute, the land should be forfeited.[45]

31. The official settled the dispute once and for all. There could be no dispute without the land. Yet, the parties would be even more resentful to each other. Since they would think that their loss was caused by the other party. The decision was, however, not dictated by expediency. It was given with the intent to discourage disputes. A Western scholar showed his understanding of the rationale when he commented on a similar decision:

    [s]uch a result was desirable because it had the effect of discouraging litigation by making it costly for both parties, a congruous outcome relative to the state's Confucian ideology that favoured a theoretically harmonious solution such as private mediation rather than litigation.[46]

    Conclusion

32. Unlike judges in modern societies, Confucian officials in traditional China were personally involved in the disputes brought to them. They were concerned to reveal the 'truth' before making decisions. How the 'truth' was found out did not matter. Substance or the outcome was more important that procedures. In deciding a case, law was subject to morality if the two were in conflict. In short, the idea of defending one's legal right was unknown in traditional China. The complicated and vague concept of morality was even more difficult to define in traditional China. Yet one central theme can be identified. The prevailing view was to achieve harmony in society.[47] That was exactly what Confucian officials tried to do. As seen from the above cases, their effects might sometimes be fruitful.

33. If the above description gave a complete picture of dispute resolution in traditional China, there would have nearly been a Confucian utopia on earth. This would have been the case if all the officials had discharged their duties in this manner. It is no doubt that some officials followed Confucian precepts and tried to eliminate disputes.[48] 'But the unfortunate fact was that...some officials might be gentlemen, but a large number of them were sure to be crook(s)....The people heard a great deal about morality, but they lived under a general misrule rather than a good government.'[49]

34. If people brought their disputes before local officials, the chance of being exploited by corrupt officials was far greater that finding a Confucian gentleman.[50] It was said, perhaps with some exaggeration, that asking for bribe was second nature to officials.[51] Besides, exploitation by corrupt runners was common.[52] In the circumstances, people would think twice before submitting their disputes to officials. Instead, they would try to settle the matter outside the official institution. In traditional China, exploitation and extortion of dishonest officials and their runners helped ironically form the culture of compromise and yielding. Beside, the lack of confidence in the official system encouraged people to resort to non-official institutions for resolving disputes.

35. Nevertheless, it is wrong to think that traditional culture is now of no relevance now.[53] Its influence can still be felt by a close examination of the Civil Procedure Law of the PRC. For example, some of the goals of Confucian officials appear as the aims of the Civil Procedure Law: establishing the truth; distinguishing right from wrong; educating citizens to voluntarily abide by the law (i.e. prevention of dispute); and maintaining the social and economic order (i.e. harmony).[54]

36. Besides, conciliation is still an important part in resolving civil disputes. Article 16 of the Civil Procedure Law provides for the establishment of the people's conciliation committees. They are 'mass organizations to conduct conciliation of civil disputes under the guidance of the grass-roots level people's governments and the basic level people's courts.' The people's courts also adopt conciliation in handling cases brought before them.[55]

37. The procedures are laid down in Chapter VIII of the Civil Procedure Law. Article 85 states that the people's court shall conduct conciliation to resolve the dispute if the matter may at all be conciliated and the parties voluntarily participate. The emphasis is, as expected, on finding the truth and distinguishing right from wrong. The dispute is not taken as a matter solely between the parties. If the court considers it appropriate for other members of the public concerned to be involved, they are under an obligation to assist in the conciliation.[56] The facts as found and the results of conciliation are to be recorded in a conciliation statement. Once the statement is signed by the parties, it is, just like a judgement of the court, binding on them.[57] However, if the conciliation cannot resolve the matter or a party withdraws his consent before the conciliation statement is served on him, the court will start the process of adjudication.[58] In exercising its power of adjudication, the court is under an obligation to conduct investigation and collect evidence if necessary.[59]

38. As shown, the traditional elements of tradition in today's PRC legal system cannot be denied. Although judges in the PRC cannot and should not handle cases as Confucian officials did in the past,[60] history may prove to be an invaluable source of thoughts to make dispute resolution institutions better and more acceptable to members of the public, provided that only the 'right' is adopted and the 'wrong' discarded.

Notes