CASE 4:  China and International Law in the 19th Century


The courtly tone of the English writing and the lack of such tone in the Chinese could be the result of the different roles played by religion and aristocracy in the histories of China and Europe. In Europe, there had always been a close association between God and the king. In England, the Canons of 1640 explicitly claimed absolute authority from God for the king:

For any person or persons to set up, maintain or avow in any their said realms or territories respectively, under any pretence whatsoever, any independent coercive power, either papal or popular (whether directly or indirectly), is to undermine their [i.e., the king’s] great royal office, and cunningly to overthrow that most sacred ordinance which God himself hath established, and so is treasonable against God as well as against the King.

For subjects to bear arms against their kings, offensive or defensive, upon any pretence whatsoever, is at least to resist the powers which are ordained of God; and though they do not invade but only resist, St Paul tells them plainly they shall receive to themselves damnation.

In China, although the emperor was thought to receive his mandate from “heaven,” as early as the time of Mencius (fourth-century BC), the will of heaven was treated as synonymous with the “affection” or “desires” or “will” of the people (minxin 民心). When King Hui of Liang asked Mencius: “What virtue must there be in order to attain sovereignty?” Mencius replied: “The love and protection of the people; with this there is no power which can prevent a ruler from attaining it.” For this reason, official memorials, imperial edicts, and legal documents in China rarely invoke religious authority. Voltaire very much admired this feature of Chinese practice, and since the Enlightenment it has been the trend for leaders in Europe and North America likewise to rely less on religious authority. Yet, it is still uncommon even today to hear leaders invoke religion as authority for political or military acts.

Apart from religion, aristocratic birth also was a major source of authority for Western statesmen right through the nineteenth century. Because birth was so important for a man’s career, marks of aristocratic stature, like courtly behavior, ornamented furniture, or florid handwriting, still commanded much respect.

In China, since roughly the tenth century, most officials were chosen on the basis of performance in blind, civil service examinations, and were promoted or demoted depending on their performance in office. Their official powers resided in the office and did not derive from their personal social status, inherited or otherwise. In Europe, however, most officials of substantial rank were members of the aristocracy, either by birth or marriage or purchase. Their office often was treated as a sinecure and could not be easily removed from them even by the King. In fact, Europeans were astounded at the fact that Chinese officials could be demoted and otherwise held subject to the same laws as ordinary citizens.

Industrialization gradually created a need for more professional administrators, but personal and family background often remained more important than performance. In England, for example, civil service offices were appointed mainly through patronage (personal connections) as late as the late nineteenth century. The role of heredity in the English civil service began to change during the the 1870s when William Gladstone tried to introduce a blind, civil service examination system much like that of China. His aim was to professionalize the civil service by recruiting better qualified administrators based on merit rather than family connections. Many in the House of Lords opposed the idea, and some objected that an egalitarian civil service exam should not be adopted because the practice was “Chinese,” and neither British nor Western. Nonetheless, the system was eventually established, ushering in the modern style of civil service with which we are familiar today.

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