Traditional Chinese Philosophy and Dispute Resolution
![handle is hein.journals/honkon30 and id is 334 raw text is: Traditional Chinese Philosophy and Dispute Resolution
Bobby K Y Wong*
This article discusses the philosophical origins of the conciliatory approach to dispute
resolution in traditional China. It begins by comparing Western and Chinese
institutions of dispute resolution. Then it develops the proposition that the praise of
harmony and dislike of confrontational means of dispute resolution are not peculiar
to Confucianism but constitute the common theme of all major schools of traditional
Chinese philosophy. The creation of a utopia without disputes was the common goal.
Different schools had however different, or even conflicting, ideas of how this goal
might be achieved, although they all put emphasis on dispute prevention. Lastly, it is
pointed out that some Confucians were not against litigation. They took it as a means
to create a Confucian utopia.
Introduction
In any society, disputes should be resolved peacefully. If there are too many
unsettled disputes, people cannot have good relations with one another and the
tranquility of society is threatened. On a theoretical level, a dispute has been
defined as 'the public assertion, usually through some standard procedures, of
an initially dyadic disagreement.'1 To resolve disputes, an institution is necessary.
Institutions of dispute resolution may take many forms. Briefly, they may be
categorized as confrontational or conciliatory. One well-known feature of
traditional Chinese society is its conciliatory approach to the settlement of
disputes. Disputes in ancient China were usually resolved by mediation or
conciliation. As a former president of the American Arbitration Association
put it, '[t]he traditional Chinese approach was to resolve.. .disputes through
interminable friendly discussions.'2
There are historical reasons for the Chinese preference for extra-legal
means to resolve disputes, relying on a sense of fairness and justice.' The aim
is to maintain social harmony, 'the ultimate goal of Chinese human
relationships.'4 Whenever possible, disputes are resolved by one party giving up
something in one respect and obtaining the other party's concession in
Barrister; Lecturer, Department of Shipping and Transport Logistics, Hong Kong Polytechnic
University. I am grateful to Dr Anselmo T Reyes and the anonymous reviewer for their comments
on earlier drafts of this article. Of course, the responsibility for any errors remains mine.
See F G Snyder, 'Anthropology, Dispute Process And Law: A Critical Introduction' (1981) 8 British
Journal of Law & Society 141, 145.
R Coulson, [1984] The Arbitration Journal 1.
3 C Pettit, 'Dispute Resolution in the People's Republic of China' [1984] The Arbitration Journal 3,
4.
4 Z D Huang, 'Negotiation in China: Cultural and Practical Characteristics' (1989-90) 6 China Law
Reporter 139, at 139.](ViewImageLocal?handle=hein.journals/honkon30&div=31&collection=&method=preview&ext=.png&size=3)
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Traditional Chinese Philosophy and Dispute Resolution
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