Normative Dualism: A New Interpretation of Chinese Legal Tradition

Using one or more systems of norms to maintain order positively but another system of norms to punish disorder negatively is a characteristic, if not unique, Chinese experience. This can be described as normative dualism. This dualist practice has been proven to have a long-lasting life. It originated more than three thousand years ago and is still being practised in contemporary China after many revolutions and reforms. Existing interpretations of Chinese legal tradition, whether universalistic, culturally relative or realistic, have not taken this normative dualism seriously. Normative dualism, however, remains the preferred way of governance by successive Chinese governments. Consequently, the place of law in the normative framework has always been secondary to the officially endorsed rules of conduct, practices and policies. This article discusses this perennial feature of Chinese legal tradition by examining its phenomenological attributes which separate Li from Xing, and its more profound philosophical foundation of dialecticism that distinguishes Yin from Yang, positive from negative and the rules of propriety from punishment.