It’s now 5:40 in the morning, and I’m trying to collect information for a research paper. I’m very tired, my bedroom is full of spiders, mosquitoes and cockroaches, and Qing Li Fa (情理法) has got me all confused. I am ke lian incarnate, no?
Here’s what I take it to mean: Using the example of a car accident, if I hit and kill somebody whilst driving, someone who I wouldn’t have hit and killed had they not broken the law and run a red light, I am ‘legally’ responsible and must then pay reparations to the ‘victim’'s family. Based on the ‘sense’ of the matter (given that ‘li’ is tied to ‘qing’), I am at fault since I have killed someone, and finally I must be punished according to Taiwanese ‘qing’-based criminal law.
However, the way most of us understand such situations is the other way around (Fa Li Qing): According to law this person has run a red light and is at legal fault, their death is not a result of any law-breaking on my part, so I am not responsible. Based on the sense of law, I have done no wrong. ‘Qing’, well, I have no idea what role it plays in the western legal system.
I have only a very rudimentary understanding of this concept and was hoping someone might set me straight. Thanks a million.
-Dave
The qing li fa / fa li qing contrast goes something like this:
In the West, whenever we are confronted with a problem, we generally look first to the law (fa) to determine how the problem should be settled and to allocate rights and responsibilities among the parties. If no law is on point (applicable), we look to reason (li) for a solution to the problem. If no solution can be reached using reason, we then will look to find a person who can mediate or otherwise help us arrive at some conciliatory settlement. Usually, we will seek to find someone or some organization that both parties feel can be trusted to work impartially to resolve the problem. Or, we might seek out someone who is known and trusted by the other party and ask such person to assist in persuading the other party to agree to some settlement. This last method of problem solving (dispute settlement) utilizes a trusted third party or acquaintance, i.e., some relationship (qing) to reach a settlement.
Contrastingly, in the East, problems are frequently (though increasingly less as Asians become comfortable with litigation and Asian societies adopt the rule of law) first employ a trusted third party or acquaintance, i.e., a relationship (qing) to reach a settlement. If that approach fails, the parties to a dispute will then employ reason (li) to attempt a settlement. Finally, where such amicable methods fail, the parties will resort to using the law (fa) to settle a dispute, in either litigation or arbitration.
And remember, traditional Chinese dispute resolution was not aimed at resolving disputes… it was aimed at preventing disputes… and if disputes had already arisen, at preventing them from reaching a litigious stage. Starting with ching/relationships and utilizing reason/li were attempts to keep disputes out of official dispute resolution methods that utilized law (fa).
The excerpt below is from an excellent essay re traditional Chinese dispute resolution:
I fail to find any legal stipulations in the Taiwan criminal law which would back up such an assertion, hence I strongly feel that this statement is without legal basis.
The notion of “qing-li-fa” cannot be used as an excuse to ignore the law. In other words, if the law has various stipulations about how the matter is to be handled, then it should be handled according to the law. In the case that the law is silent, then you look to the “li”, and if there is no precedent there, then you look to the “qing.”
Tigerman has written a great summary of this issue in traditional Chinese legal theory. But it would be incorrect to believe that in fact Chinese rarely went to court in imperial times. In fact, legal actions were very common during the Qing. Moralists complained about this constantly. When people appeal for harmony, you can bet that they are tring to paper over real conflict.
[quote=“Hartzell”]The notion of “qing-li-fa” cannot be used as an excuse to ignore the law. In other words, if the law has various stipulations about how the matter is to be handled, then it should be handled according to the law. In the case that the law is silent, then you look to the “li”, and if there is no precedent there, then you look to the “qing.”
Hence, the correct ordering is “fa-li-qing”.[/quote]
Just to clarify… in civil matters, where the disputants themselves are entitled to decide whether or not to litigate (resort to law/fa), the notion of qing li fa is very much alive even today. In such cases, the disputants may very well seek to employ relationships and reason before resorting to legal remedies to resolve their dispute.
But, in the example used by the LazyMF, which is a criminal matter, the parties involved would be the State and the driver (defendant) who hit and killed the victim. In such case, the only method of settling the matter would be to resort to the law/fa to determine the responsibilities and liabilities of the defendant, if any.
But again, LazyMF’s example was set in modern times. Traditional Chinese dispute resolution, however, did seek to apply qing li fa to settle what we would today clearly regard as legal matters, solutions to which should be determined by application of the relevant law (as opposed to relationships and or reason).
That’s true (what you said above about the Chinese going to court ). That is why I stated that the use of qing li fa dispute resolution was an attempt to keep people out of court, and in cases that had already been taken to the magistrates, the magistrates tried often to make the disputants withdraw their claims… by referring to morality as it relates to qing and li (and fa).
Without getting into the “legal philosophy” of it (that article from the Murdoch University Journal of Law was excellent by the way, thanks for posting that link); one comment I would make is that the vast majority of “minor matters” (I put that in quotes because if it happened to you it might not seem “minor”) are resolved by some mechanism other than formal court proceedings.
By way of common example, if auto wrecks are not solved “on the spot” then they go to (I do not know the chinese for it) what I calll the “Auto Wreck Proto-Court” which is a committee (actually made up of students!) who determine who was at fault and what the “comparative negligence” was and then determine a settlement amount.
Only after going through this process can one file a “real” court case. (If I understand the thing right.). Like everything else here on Bribery Island, this Auto Wreck Proto Court has been (accurately) criticized as being a den of bribery and guan xi driven “decisions”.
It has been my experience that the law is the last resort for the locals, unless there is some political mileage to be gained or unless one of the parties is a dingbat who simply wants to go whine to a civil servant sitting in a robe up on a bench (i.e. the Judge).
I think one reason that people tend not to go to court is because you usually have to pay for your legall expenses. So even if you win, you award may be dwarfed by what you owe your lawyer.
But historically this has not always been true. People went to court during the Qing all the time. People do or do not go to court if institutional arrangements make going to court an effective way to resolve disputes. There is no internal cultural module preventing Chinese people from going to court.
I mean…look at people back home. You break somebody else’s nail and it’s, “I’m a gonna SUE!” The on the spot solving of traffic accidents is better because it keeps it down to only the people directly involved…instead of insurance companies, lawyers, police, all the rest of the legal vultures…
). That is why I stated that the use of qing li fa dispute resolution was an attempt to keep people out of court, and in cases that had already been taken to the magistrates, the magistrates tried often to make the disputants withdraw their claims… by referring to morality as it relates to qing and li (and fa).