A NEW CONCEPT OF LAW
(A study of Dr. Sun Yat-sen's Political Philosophy)
Sun Yat-sen tried to develop a new concept of law based on what he thought were the three problems in a society; national, political and social. However Dr Sun was primarily a political thinker so his philosophical reflections on the foundations of law are more implied than expressed. The basis of his new concept of law can be summarized as (1) the theory of social service; (2) the interweaving of Ch'ing, li and law; (3) li as a part of law.
Dr. Sun believed law to be a product of society which is based on the fundamental beliefs of a given society at a given time. The development of the cathexis of the legal system can be divided into three periods; the period of individual obligation, the period of individual rights and the period of social service.
In primitive as well as in more advanced societies the underlying principle of individual obligation shapes the society. Serfs or slaves have always had the obligation of service to those who ruled. Even in modern times the principle of individual obligation still applies. In the so-called proletariat dictatorship in a communist country, group exploitation is based on this principle in the name of social service to the state.
With the introduction of the idea of "inalienable, indivisible, infallible and indestructible natural rights" by Locke and Rousseau in the eighteenth century, a modern concept of law emerged in which individualism is glorified. Consequently, the substance of law changed around this time from a law based on the principle of individual obligation to a form of law based on the principle of individual rights. Rights that it was believed man was born with; the rights of life, liberty and property. Under such a legal system government is necessary only to the extent that it enhances individual rights and all legal protections are for the protection of individual rights.
In the second half of the nineteenth century, Rudolph von Ihering of Germany tried to substitute the idea of individual interest with the idea of social interest as the foundation of law.
According to Ihering the interest of society is placed ahead of that of the individuals but self interest is coincidentally taken care of; as the society benefits and prospers so do the majority of the individuals.
Dr. Sun not only supported this new concept of law but went a step further in his theory of law. He stressed not only the social interest but also suggested a positive function of law in which social interest generated an activist doctrine that called for the rendering of social service by all members of a society.
There are three important aspects of his theory of law: first, every one should make service, not exploitation, his aim; second, the amount of service is based on the individual's level of ability (the more capable one is the more service they should render).
Third, the principle of of progressive service is to remedy the inequality of natural endowment of individuals in order to achieve real equality. There is a significant difference between Dr. Sun's theory and the principle of sociological jurisprudence. Sociological jurisprudence still retains individual end as the main goal of society while Dr. Sun exalts the state as being of higher importance then the individual. Consequently the application of the principle of progressive service is to the society and not to any individual or group of individuals. While the theory of individual interest relies on egoism as the major motivating force in achieving the social goal Dr. Sun stressed natural human sympathy and a sense of social duty as the basic psychological foundation of law and justice.
Dr. Sun rejected earlier beliefs that law should be a system of enforced rights and duties and instead should rest in each individual's awareness of the consequence of his actions towards the solidarity of society. Under this new concept the idea of right is conditional, relative and never absolute. Individual conduct is governed by the needs of the society and not the individual.
These same principles apply to freedom as well. Individuals may exercise their free will as long as it furthers the social solidarity.
The second ingredient of Dr. Sun's new concept of law is he interweaving of Ch'ing, li and law. There are two major theories of the nature of law. One is that there is a naturally occurring universal law and the other is that of a humanly decreed law, limited by and changing based on the time and community. Dr. Sun's idea of law was a synthesis of these two theories. His concept combined ch'ing, which concerns the relationships of people and their feelings, and li, which concerns the rationale of the subject matter or actions and their logical consequences or implications. Thus Dr. Sun believed that morality and law share the same origin, perform the same function and differ only in the mode of their enforcement. Law is therefore derived from ch'ing and li, and is not outside them.
The third ingredient of Dr. Sun's new concept of law is that he regards li as a part of law. There are two kinds of law. One is what has been precisely stated and the other is what has been enforced informally. According to the legal history of China, the written law is only a part of the law which was binding upon the people. In addition to the written law, there is the substance of law which is li. The basic difference between li and law is that li forbids transgressions before they are committed whereas law punishes criminal acts after their commission. In essence, li is a form of social control which operates to prevent evil from happening rather than punishment after occurrence.
Dr. Sun's new concept of law is based on his theory of social service, the interweaving of ch'ing, li, and law and li as an essential part of law. In the interweaving of national law with eternal reason (li) and human feeling (ch'ing) he has at one stroke defined the idea of justice, explained the desirability of rule by law over the rule by man, and provided justification for revolution if and when law is anti-reason and anti-nature.