Traditional Chinese law
Encyclopedia
Traditional Chinese law refers to the laws, regulations and rules used in China
up to 1911, when the last imperial dynasty fell. It has undergone continuous development since at least the 11th century BC. This legal tradition is distinct from the common law
and civil law
traditions of the West – as well as Islamic law
and classical Hindu law
– and to a great extent, is contrary to the concepts of contemporary Chinese law. It incorporates elements of both Legalist and Confucian traditions of social order and governance.
Two traditional Chinese terms approximate "law" in the modern sense. The first, fa (法), means primarily "norm" or "model". The second, lü (律), is usually rendered as "statute". It originally seems to have meant "standard pitchpipe", instruments used in Chinese cosmic magic.
The early rulers of the Zhou Dynasty
issued or enforced laws that already exemplified the values of a primogeniture regime, most notable of which is filial piety
. The earliest document on law in China that is generally regarded as authentic is the Kang Gao (康誥), a set of instructions issued by King Wu of Zhou
to a younger prince for the government of a fief.
During the 6th century BC, several of the independent states into which the Zhou kingdom had fragmented codified their penal laws and inscribed them on bronze cauldrons. For example, at least two codifications from the state of Zheng
survive, from 536 BC and 504 BC - the first on cauldrons and the second on bamboo. The codes of Wei
, drafted by Li Kui, are also notable. Such codification was part of the process by which rulers attempted to make more effective the central administration of the state. They attracted criticism from orthodox statesmen, including Confucius
, on the basis that they eroded the distinction between the "noble" and the "base".
The Five Punishments
dated from this time.
finally obtained supremacy over its rivals and founded the Qin Dynasty
. One of the reasons for its success was the adoption, on the advice of Lord Shang Yang
, of far-reaching penal and administrative codes in the 4th century BC. The laws imposed severe punishments for failure to comply with duties imposed by the state and on the whole punished all alike. During this stage, law was marked by a purely Legalist spirit, hostile to the moral values advocated by the Confucian school.
The Legalist school, as represented by such thinkers as Han Fei Zi, insisted that the ruler must always rely on penal law and the imposition of heavy punishments as the main instrument of government. At the same time, moral considerations and social standing should be rigorously excluded. Another hallmark of Legalist thinking was that there should be equality before the law. On the question of legislative technique, the Legalists stressed that the rules enacted by the ruler for punishment of offences should be clear, intelligible to the ordinary people, and properly communicated to them.
Multiple corporal punishments were implemented by the Qin, such as death by boiling, chariots, beating, and permanent mutilation in the form of tattooing and castration. People who committed crimes were also sentenced to hard labor for the state.
succeeded the Qin. It was recognised that there was a need for complex penal and administrative codes that enabled the emperor to govern the country through a hierarchy of ministers and officials, all ultimately responsible to him. Imperial legal systems all retained the original Legalist insistence that the powers of officials be defined in detail and that punishments be prescribed for transgressions, whether inadvertent or not. Han law-makers took account of Confucian values and introduced rules designed to implement them.
By 167 BC the law had changed so that castration itself was not used to punish, instead, it became an optional replacement for execution.
This process continued throughout the Han and later dynasties, culminating in the Tang Dynasty
. Ch'ü T'ung-tsu has shown that the "Confucianisation" of Chinese law was a slow process and that the amalgamation of the Confucian views of society with the law codes was completed only in the great Tang Code
of CE 624. The code is regarded as a model of precision and clarity in terms of drafting and structure.
The original Tang Code was promulgated in 624, by the founding Emperor (Gaozu) of the Tang Dynasty. It would become in modern times the earliest fully preserved legal code in the history of Chinese law. It was endowed with a commentary, known as Tanglu Shuyi, incorporated in 653, the fourth year of the reign of Perpetual Splendour, as part of the Tang Code of Perpetual Splendour.
The Tang Code was based on the Code of Northern Zhou (Bei Zhou Lu, 557-581), promulgated 89 years earlier in 564, which was in turn based on the earlier, less comprehensive and less elaborate Code of Cao Wei (Cao Wei Lu, 220-265) and the Code of Western Jin (Xi Jin Lu, 265-317) promulgated almost four centuries earlier in 268.
Confucian attitudes place low reliance on law and punishment for maintaining social order. Evidence of this can be found in the Aspiration (Zhi) section of the 200-volume Old Book on Tang (Jiu Tang Shu), a magnum opus of Tang historiography. The history classic was compiled under official supervision in 945 during the Late Jin Dynasty (Hou Jin, 936-946) of the era of Five Generations (Wudai, 907-960), some three centuries after the actual events. A single chapter on Punishment and Law (Xingfa) is placed last after seven chapters on Rites (Liyi), after which come four chapters on Music (Yinyue), three chapters on the Calendar (Li), two on Astronomy and Astrology (Tianwen), one on Physics (Wuheng), four on Geography (Dili), three on Hierarchy of Office (Zhiguan), one on Carriages and Costume (Yufu), two on Sutras and Books (Jingji), two on Commodities (Chihuo) and finally one single chapter on Punishment and Law, in that order.
The Confucian Code of Rites (Liji), not law, is expected to be the controlling document on civilised behaviour. In the Confucian world view, rule of law is applied only to those who have fallen beyond the bounds of civilised behaviour. Civilised people are expected to observe proper rites. Only social outcasts are expected to have their actions controlled by law. Thus the rule of law is considered a state of barbaric primitiveness, prior to achieving the civilised state of voluntary observation of proper rites. What is legal is not necessarily moral or just.
Under the supervision of Tang Confucian minister Fang Xuanling
, 500 sections of ancient laws were compiled into 12 volumes in the Tang Code, titled:
Vol 1: Term and Examples (Mingli)
Vol 2: Security and Forbiddance (Weijin)
Vol 3: Office and Hierarchy (Zhizhi)
Vol 4: Domestic Matters and Marriage (Huhun)
Vol 5: Stables and Storage (Jiuku)
Vol 6: Impeachment and Promotion (Shanxing)
Vol 7: Thievery and Robbery (Zeidao)
Vol 8: Contest and Litigation (Dousong)
Vol 9: Deceit and Falsehood (Zhawei)
Vol 10: Miscellaneous Regulation (Zalu)
Vol 11: Arrest and Escape (Buwang)
Vol 12: Judgment and Imprisonment (Duanyu)
The Tang Code lists the five forms of corporal punishment
as:
1. Flogging (Chi)
2. Caning (Zhang)
3. Imprisonment (Tu)
4. Exile (Liu)
5. Death (Si)
Leniency is applied according to the Eight Deliberations
:
1. Blood relation
2. Motive for the crime
3. Virtue of the culprit
4. Ability of the culprit
5. Past merits
6. Nobility status
7. Friendship
8. Diligent character
Confucianism in its revised form (Neo-Confucianism
) continued to be the state orthodoxy under the Song
, Ming
and Qing
dynasties. This ensured that the Confucian foundations of the Tang code were retained, and in some respects they were even strengthened. By the time of the Qing dynasty however, the mass of legislation had increased to such an extent that it was doubtful whether even officials could adequately master the complex distinctions it came to contain.
was unknown in China until the 20th century. In particular, judicial and administrative functions were performed by magistrate
s rather than by separate persons. The emperor delegated many of his administrative and judicial powers to his officials while reserving for himself the legislative function.
Official law may itself be divided into two main components: penal law and administrative law. The former prescribed punishments for certain behaviour, and the latter defined the duties of the officials.
By contrast, "unofficial" law was the customary law of the people, rules that developed in localities or in merchant guilds for the handling of matters of common concern. Neither of the standard words for law - fa (法) or lü (律) - was ever applied to rules of this kind.
Of these varieties only penal law has been systematically studied by Western scholars. The complexity of the Chinese administrative system has made it difficult for Western students to acquire a general familiarity with the legal principles that govern it. The study of unofficial law has also been limited due in part to the fact that the data are contained in such a variety of source materials, most extremely difficult to access. The lack of access to source material gave earlier scholars, both Chinese and Western, the mistaken impression that Imperial China did not have a system of civil law.
developed during the Sui Dynasty
and adopted by later dynasties including the Tang in 653. This code provided the model for all the later traditional penal codes through its definition of the Five Punishments
and Ten Abominations
. Only the Mongol Yuan Dynasty
failed to issue a penal code, but the collections of legal materials from that dynasty still show the strong influence of the Tang code.
The penal codes contain only rules that prescribe punishments for specific offences, rules that define generally the allocation of punishment, or those that establish principles of interpretation. Each offence was allocated a specific punishment. The task of the magistrate was to identify the proper name of the offence disclosed by the facts. Determination of the correct punishment automatically followed.
The penal code was seen as indispensable part of government, yet punishments were still to be humane. The multilating punishments that had characterised earlier law were no longer used by the 8th century. The five regular punishments established by the Tang code were, in descending order of severity: death, life exile, penal servitude (forced labour), beating with a heavy stick, or beating with a light stick. They remained the regular punishments until the closing years of the Qing.
The penal codes were divided into a "General Principles" and a "Specific Offences" section. Each dynasty retained the same basic content, though the Ming and Qing codes introduced some variation in the classification of offences. The Tang and Song codes consisted of a number of articles (律), many of which were adopted, sometimes without alteration, by the Ming and Qing codes. Once the articles of the code had been established at the beginning of the dynasty, there was a reluctance on the part of the founding emperor or his successors to change them.
Consequently, to deal with the problem of changing circumstances, the Ming started the practice of adding substatutes (例) to the code. The practice grew extensively under the Qing, with the result that, by the end of the 19th century, the penal code had lost something of its internal coherence and become an unwieldy instrument. Substatutes tended to be more specific and detailed than articles. Explanatory commentaries were added to the penal codes. The most authoritative were those approved by the throne for inclusion in the code. These often themselves contained rules not found in the articles or substatutes. In cases where no ambiguous article or substatute could be invoked, previous decisions by the Board of Punishments might function as "precedent
s".
Some rules in the penal codes, especially those relating to civil matters, were obsolete or not enforced. Jean Escarra
, has suggested that the penal law as a whole was intended to function as a guide to model conduct and not as a set of enforceable rules. Whilst this view has largely been rejected, it is clear that many of the enforced rules on family relationships were retained on account of their symbolic value.
After the Han period, all rules of a code which were not lü were called ling (ordinances) and ge (rulings), sometimes shi (models), and often zhi (decrees).
On occasion he might modify a capital sentence referred to him by the central judicial agencies for his approval, but he always did so with reference to the facts of the particular case and explained in his edict the reasons for the change he had made. Sometimes he would even accept a remonstrance by his officials that the change was not proper and accept that he had to act in conformity with the existing law.
or civil law
. In particular, it comprises rules governing matters of contract
and property
. In contrast with Western systems in which civil law preceded criminal law, in traditional Chinese law, the reverse was true. From the provisions of the penal code, magistrates could either derive principles of civil law either directly, if a matter was in stated in the penal code such as matters regarding such as that regarding debt
and usury
, dealings with land, the borrowing and pledging of property, and the sale of goods in markets, or indirectly reading into a criminal statute a basis for a private civil suit.
Although the stereotypical view of Chinese magistrates was that they were reluctant to intervene as arbiters in any kind of civil dispute, more recent studies have argued that most of a magistrate's work involved the settlement of civil disputes. In this view, the reluctance of magistrates to take on case work had to do largely with the fact that the Chinese civil administration was small, and that the workload on magistrates was very large. Moreover, scholars in the early 21st century, such as Philip Huang, have argued that the traditional Chinese system of justice was fair, efficient, and frequently used in the settlement of disputes.
Use of property was divided into topsoil (tianpi) and subsoil (tiangu) rights. Landlords with subsoil rights had a permanent claim to the property if they paid taxes and received official seals from the government, but did not have rights to actively use the land. Instead, those with topsoil rights paid the subsoil landlord a fixed rent (or part of the proceeds of what was produced on the land) for not only the right to farm and live on the land, but the right to independently sell or lease the topsoil rights to another party. So as long as another party held topsoil rights, the party holding subsoil did not have right to actively use the land or evict the topsoil owner. Land, like other forms of property, was seen as being held collectively by the family and not individuals within the family. Another Chinese concept in imperial Chinese property rights was dian
, or conditional sales of property that allowed the seller (i.e., his family) to buy back the land at the original price (without interest). The assumption was that land, having been held by a family for generations, should stay with the same family.
. Because a confession was required for a conviction and sentence the use of torture
was often used to elicit such a confession. A common tool was the bastinado, applied to the buttocks and thighs.
During the Qin and Han, local magistrates were fully authorised to apply the full scale of punishments, including the death penalty.
In principle all criminal cases, whatever their gravity, were heard first in the court of the district in which the facts occurred. The magistrate investigated the facts, determined guilt or innocence, and then proposed the sentence for the offence as prescribed by the code. Whenever a sentence of greater severity than a beating was applicable, it was necessary to forward the case to the next superior court in the hierarchy, that of the prefect, for rehearing. The prefect's decision was final only in cases of penal servitude. Cases of exile or death were automatically reviewed by the provincial governor. All homicide cases and all cases attracting the death sentence were sent to the capital for review by the highest judicial tribunal, the Board of Punishments. No sentence of death could be implemented, except in extreme circumstances, without express approval from the emperor himself.
, an early Confucian thinker, saw the necessity for legislation, but emphasised equally the importance of virtue on the part of the legislator and judiciary. There was a conviction that maintenance of the Confucian moral prescriptions through the apparatus of the state was essential for the preservation of a civilised society. Encouragement of the virtue of filial piety helped to strengthen the related duty of respect and submission to imperial authority.
The codes signal their moral orientation by placing right at the beginning of the "General Principles" section a description of the offences known as the "Ten Abominations
". These offences were regarded as the most abhorrent. As the official commentary of the Qing code states: "persons guilty of any of the Ten Abominations destroy human bonds (倫), rebel against Heaven (天), go against reason (理), and violate justice (義)."
Unlike in the West, where secular and religious powers co-existed and fostered a tradition of pluralism
, the traditional Chinese legal system, as a tool of the sovereign, has never encountered strong counterparts, and therefore never tolerated the existence of any alien powers and legal rules other than those of the emperor. From a socio-cultural standpoint, however, it is interesting to note that while in the West, individuals have typically been intrinsically seen as linked to a single religious tradition (that is, a strong division traditionally existed between rival denominations, or between Christianity and Judaism), in Chinese culture, people have been able to simultaneously be adherents of Buddhism, Taoism, and Confucianism, or some combination of these.
In contrast to many other peoples, the Chinese never attributed their laws to a divine lawgiver. The same is true for the rule which governed the whole of life, and which therefore might legitimately be called "laws"; no divine origin is found for li (rules of correct behaviour) either.
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
up to 1911, when the last imperial dynasty fell. It has undergone continuous development since at least the 11th century BC. This legal tradition is distinct from the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
traditions of the West – as well as Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
and classical Hindu law
Classical Hindu law
Classical Hindu law is a category of Hindu law found in ancient India that traditionally begins with the transmittance of the Vedas and ends in 1772 with the adoption of "A Plan for the Administration of Justice in Bengal" by the Bengal government...
– and to a great extent, is contrary to the concepts of contemporary Chinese law. It incorporates elements of both Legalist and Confucian traditions of social order and governance.
Two traditional Chinese terms approximate "law" in the modern sense. The first, fa (法), means primarily "norm" or "model". The second, lü (律), is usually rendered as "statute". It originally seems to have meant "standard pitchpipe", instruments used in Chinese cosmic magic.
Early development
The laws of the aristocratic societies of early China put substantial emphasis on maintaining the distinct ranks and orders among the nobles, in addition to controlling the populace. As a result, li (禮), meaning ritual and etiquette, governed the conduct of the nobles whilst xing (刑), rules of punishment, governed the commoners and slaves.The early rulers of the Zhou Dynasty
Zhou Dynasty
The Zhou Dynasty was a Chinese dynasty that followed the Shang Dynasty and preceded the Qin Dynasty. Although the Zhou Dynasty lasted longer than any other dynasty in Chinese history, the actual political and military control of China by the Ji family lasted only until 771 BC, a period known as...
issued or enforced laws that already exemplified the values of a primogeniture regime, most notable of which is filial piety
Filial piety
In Confucian ideals, filial piety is one of the virtues to be held above all else: a respect for the parents and ancestors. The Confucian classic Xiao Jing or Classic of Xiào, thought to be written around 470 BCE, has historically been the authoritative source on the Confucian tenet of xiào /...
. The earliest document on law in China that is generally regarded as authentic is the Kang Gao (康誥), a set of instructions issued by King Wu of Zhou
King Wu of Zhou
King Wu of Zhōu or King Wu of Chou was the first sovereign, or ruler of the Chinese Zhou Dynasty. The dates of his reign are 1046-1043 BCE or 1049/45-1043. Various sources quoted that he died at the age of 93, 54 or 43. He was considered a just and able leader. Zhou Gong Dan was one of his...
to a younger prince for the government of a fief.
During the 6th century BC, several of the independent states into which the Zhou kingdom had fragmented codified their penal laws and inscribed them on bronze cauldrons. For example, at least two codifications from the state of Zheng
Zheng (state)
Zheng （) was a vassal state in China during the Zhou Dynasty located in the centre of ancient China in modern day Henan Province on the North China Plain about east of the royal capital at Luoyang. It was the most powerful of the vassal states at the beginning of the Eastern Zhou...
survive, from 536 BC and 504 BC - the first on cauldrons and the second on bamboo. The codes of Wei
Wei (state)
The State of Wei was a Zhou Dynasty vassal state during the Warring States Period of Chinese history. Its territory lay between the states of Qin and Qi and included parts of modern day Henan, Hebei, Shanxi and Shandong...
, drafted by Li Kui, are also notable. Such codification was part of the process by which rulers attempted to make more effective the central administration of the state. They attracted criticism from orthodox statesmen, including Confucius
Confucius
Confucius , literally "Master Kong", was a Chinese thinker and social philosopher of the Spring and Autumn Period....
, on the basis that they eroded the distinction between the "noble" and the "base".
The Five Punishments
Five Punishments
The Five Punishments was the collective name for a series of physical penalties meted out by the legal system of pre-modern Dynastic China. Over time, the nature of the Five Punishments varied. Before the time of Western Han Dynasty Emperor Han Wendi they involved tatooing, cutting off the nose,...
dated from this time.
Legalism and Qin
In 221 BC, the state of QinQin (state)
The State of Qin was a Chinese feudal state that existed during the Spring and Autumn and Warring States Periods of Chinese history...
finally obtained supremacy over its rivals and founded the Qin Dynasty
Qin Dynasty
The Qin Dynasty was the first imperial dynasty of China, lasting from 221 to 207 BC. The Qin state derived its name from its heartland of Qin, in modern-day Shaanxi. The strength of the Qin state was greatly increased by the legalist reforms of Shang Yang in the 4th century BC, during the Warring...
. One of the reasons for its success was the adoption, on the advice of Lord Shang Yang
Shang Yang
Shang Yang was an important statesman of the State of Qin during the Warring States Period of Chinese history. Born Wei Yang in the State of Wei, with the support of Duke Xiao of Qin Yang enacted numerous reforms in Qin...
, of far-reaching penal and administrative codes in the 4th century BC. The laws imposed severe punishments for failure to comply with duties imposed by the state and on the whole punished all alike. During this stage, law was marked by a purely Legalist spirit, hostile to the moral values advocated by the Confucian school.
The Legalist school, as represented by such thinkers as Han Fei Zi, insisted that the ruler must always rely on penal law and the imposition of heavy punishments as the main instrument of government. At the same time, moral considerations and social standing should be rigorously excluded. Another hallmark of Legalist thinking was that there should be equality before the law. On the question of legislative technique, the Legalists stressed that the rules enacted by the ruler for punishment of offences should be clear, intelligible to the ordinary people, and properly communicated to them.
Multiple corporal punishments were implemented by the Qin, such as death by boiling, chariots, beating, and permanent mutilation in the form of tattooing and castration. People who committed crimes were also sentenced to hard labor for the state.
Imperial law
Legalism survived in a diluted form after the Han DynastyHan Dynasty
The Han Dynasty was the second imperial dynasty of China, preceded by the Qin Dynasty and succeeded by the Three Kingdoms . It was founded by the rebel leader Liu Bang, known posthumously as Emperor Gaozu of Han. It was briefly interrupted by the Xin Dynasty of the former regent Wang Mang...
succeeded the Qin. It was recognised that there was a need for complex penal and administrative codes that enabled the emperor to govern the country through a hierarchy of ministers and officials, all ultimately responsible to him. Imperial legal systems all retained the original Legalist insistence that the powers of officials be defined in detail and that punishments be prescribed for transgressions, whether inadvertent or not. Han law-makers took account of Confucian values and introduced rules designed to implement them.
By 167 BC the law had changed so that castration itself was not used to punish, instead, it became an optional replacement for execution.
This process continued throughout the Han and later dynasties, culminating in the Tang Dynasty
Tang Dynasty
The Tang Dynasty was an imperial dynasty of China preceded by the Sui Dynasty and followed by the Five Dynasties and Ten Kingdoms Period. It was founded by the Li family, who seized power during the decline and collapse of the Sui Empire...
. Ch'ü T'ung-tsu has shown that the "Confucianisation" of Chinese law was a slow process and that the amalgamation of the Confucian views of society with the law codes was completed only in the great Tang Code
Tang Code
The Tang Code was a penal code that was established and used during the Tang Dynasty in China. Supplemented by civil statutes and regulations, it became the basis for later dynastic codes not only in China but elsewhere in East Asia. The Code synthesised Legalist and Confucian interpretations of...
of CE 624. The code is regarded as a model of precision and clarity in terms of drafting and structure.
The original Tang Code was promulgated in 624, by the founding Emperor (Gaozu) of the Tang Dynasty. It would become in modern times the earliest fully preserved legal code in the history of Chinese law. It was endowed with a commentary, known as Tanglu Shuyi, incorporated in 653, the fourth year of the reign of Perpetual Splendour, as part of the Tang Code of Perpetual Splendour.
The Tang Code was based on the Code of Northern Zhou (Bei Zhou Lu, 557-581), promulgated 89 years earlier in 564, which was in turn based on the earlier, less comprehensive and less elaborate Code of Cao Wei (Cao Wei Lu, 220-265) and the Code of Western Jin (Xi Jin Lu, 265-317) promulgated almost four centuries earlier in 268.
Confucian attitudes place low reliance on law and punishment for maintaining social order. Evidence of this can be found in the Aspiration (Zhi) section of the 200-volume Old Book on Tang (Jiu Tang Shu), a magnum opus of Tang historiography. The history classic was compiled under official supervision in 945 during the Late Jin Dynasty (Hou Jin, 936-946) of the era of Five Generations (Wudai, 907-960), some three centuries after the actual events. A single chapter on Punishment and Law (Xingfa) is placed last after seven chapters on Rites (Liyi), after which come four chapters on Music (Yinyue), three chapters on the Calendar (Li), two on Astronomy and Astrology (Tianwen), one on Physics (Wuheng), four on Geography (Dili), three on Hierarchy of Office (Zhiguan), one on Carriages and Costume (Yufu), two on Sutras and Books (Jingji), two on Commodities (Chihuo) and finally one single chapter on Punishment and Law, in that order.
The Confucian Code of Rites (Liji), not law, is expected to be the controlling document on civilised behaviour. In the Confucian world view, rule of law is applied only to those who have fallen beyond the bounds of civilised behaviour. Civilised people are expected to observe proper rites. Only social outcasts are expected to have their actions controlled by law. Thus the rule of law is considered a state of barbaric primitiveness, prior to achieving the civilised state of voluntary observation of proper rites. What is legal is not necessarily moral or just.
Under the supervision of Tang Confucian minister Fang Xuanling
Fang Xuanling
Fang Xuanling , formal name Fang Qiao but went by the courtesy name of Xuanling, formally Duke Wenzhao of Liang , was the lead editor of the Book of Jin and one of the most celebrated chancellors of the Chinese dynasty Tang Dynasty, and he and his colleague Du Ruhui, both serving during the reign...
, 500 sections of ancient laws were compiled into 12 volumes in the Tang Code, titled:
Vol 1: Term and Examples (Mingli)
Vol 2: Security and Forbiddance (Weijin)
Vol 3: Office and Hierarchy (Zhizhi)
Vol 4: Domestic Matters and Marriage (Huhun)
Vol 5: Stables and Storage (Jiuku)
Vol 6: Impeachment and Promotion (Shanxing)
Vol 7: Thievery and Robbery (Zeidao)
Vol 8: Contest and Litigation (Dousong)
Vol 9: Deceit and Falsehood (Zhawei)
Vol 10: Miscellaneous Regulation (Zalu)
Vol 11: Arrest and Escape (Buwang)
Vol 12: Judgment and Imprisonment (Duanyu)
The Tang Code lists the five forms of corporal punishment
Five Punishments
The Five Punishments was the collective name for a series of physical penalties meted out by the legal system of pre-modern Dynastic China. Over time, the nature of the Five Punishments varied. Before the time of Western Han Dynasty Emperor Han Wendi they involved tatooing, cutting off the nose,...
as:
1. Flogging (Chi)
2. Caning (Zhang)
3. Imprisonment (Tu)
4. Exile (Liu)
5. Death (Si)
Leniency is applied according to the Eight Deliberations
Eight Deliberations
Eight Deliberations , also translated as Eight Considerations, Eight Discussions or Eight Discussed Cases, was a set of principles used by traditional Chinese law in order to lessen legal punishment on the royalties, nobles and members of upper classes.-Origins:The Eight Deliberations were...
:
1. Blood relation
2. Motive for the crime
3. Virtue of the culprit
4. Ability of the culprit
5. Past merits
6. Nobility status
7. Friendship
8. Diligent character
Confucianism in its revised form (Neo-Confucianism
Neo-Confucianism
Neo-Confucianism is an ethical and metaphysical Chinese philosophy influenced by Confucianism, that was primarily developed during the Song Dynasty and Ming Dynasty, but which can be traced back to Han Yu and Li Ao in the Tang Dynasty....
) continued to be the state orthodoxy under the Song
Song Dynasty
The Song Dynasty was a ruling dynasty in China between 960 and 1279; it succeeded the Five Dynasties and Ten Kingdoms Period, and was followed by the Yuan Dynasty. It was the first government in world history to issue banknotes or paper money, and the first Chinese government to establish a...
, Ming
Ming Dynasty
The Ming Dynasty, also Empire of the Great Ming, was the ruling dynasty of China from 1368 to 1644, following the collapse of the Mongol-led Yuan Dynasty. The Ming, "one of the greatest eras of orderly government and social stability in human history", was the last dynasty in China ruled by ethnic...
and Qing
Qing Dynasty
The Qing Dynasty was the last dynasty of China, ruling from 1644 to 1912 with a brief, abortive restoration in 1917. It was preceded by the Ming Dynasty and followed by the Republic of China....
dynasties. This ensured that the Confucian foundations of the Tang code were retained, and in some respects they were even strengthened. By the time of the Qing dynasty however, the mass of legislation had increased to such an extent that it was doubtful whether even officials could adequately master the complex distinctions it came to contain.
Varieties of law
Traditional Chinese law can be divided into the "official" law and "unofficial law". The "official law" emanates from the authority of the emperor. The doctrine of separation of powersSeparation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
was unknown in China until the 20th century. In particular, judicial and administrative functions were performed by magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
s rather than by separate persons. The emperor delegated many of his administrative and judicial powers to his officials while reserving for himself the legislative function.
Official law may itself be divided into two main components: penal law and administrative law. The former prescribed punishments for certain behaviour, and the latter defined the duties of the officials.
By contrast, "unofficial" law was the customary law of the people, rules that developed in localities or in merchant guilds for the handling of matters of common concern. Neither of the standard words for law - fa (法) or lü (律) - was ever applied to rules of this kind.
Of these varieties only penal law has been systematically studied by Western scholars. The complexity of the Chinese administrative system has made it difficult for Western students to acquire a general familiarity with the legal principles that govern it. The study of unofficial law has also been limited due in part to the fact that the data are contained in such a variety of source materials, most extremely difficult to access. The lack of access to source material gave earlier scholars, both Chinese and Western, the mistaken impression that Imperial China did not have a system of civil law.
Penal law
The centrepiece of the penal law is the "code of punishments" issued by each dynasty at its inception. Although fragments of laws survive from the Qin and Han, the first surviving complete code was the Kaihuang CodeKaihuang Code
The Kaihuang Code was a series of laws formulated in China at the time of Sui Dynasty Emperor Wen of Sui . Containing twelve chapters with 500 provisions, the code reconfirmed the legal institutions of the Five Punishments, Eight Deliberations and Ten Abominations...
developed during the Sui Dynasty
Sui Dynasty
The Sui Dynasty was a powerful, but short-lived Imperial Chinese dynasty. Preceded by the Southern and Northern Dynasties, it ended nearly four centuries of division between rival regimes. It was followed by the Tang Dynasty....
and adopted by later dynasties including the Tang in 653. This code provided the model for all the later traditional penal codes through its definition of the Five Punishments
Five Punishments
The Five Punishments was the collective name for a series of physical penalties meted out by the legal system of pre-modern Dynastic China. Over time, the nature of the Five Punishments varied. Before the time of Western Han Dynasty Emperor Han Wendi they involved tatooing, cutting off the nose,...
and Ten Abominations
Ten Abominations
The Ten Abominations were a list of offenses under traditional Chinese law which were regarded as the most abhorrent, and which threatened the well-being of civilized society. They are listed below. The first three were capital offences:...
. Only the Mongol Yuan Dynasty
Yuan Dynasty
The Yuan Dynasty , or Great Yuan Empire was a ruling dynasty founded by the Mongol leader Kublai Khan, who ruled most of present-day China, all of modern Mongolia and its surrounding areas, lasting officially from 1271 to 1368. It is considered both as a division of the Mongol Empire and as an...
failed to issue a penal code, but the collections of legal materials from that dynasty still show the strong influence of the Tang code.
The penal codes contain only rules that prescribe punishments for specific offences, rules that define generally the allocation of punishment, or those that establish principles of interpretation. Each offence was allocated a specific punishment. The task of the magistrate was to identify the proper name of the offence disclosed by the facts. Determination of the correct punishment automatically followed.
The penal code was seen as indispensable part of government, yet punishments were still to be humane. The multilating punishments that had characterised earlier law were no longer used by the 8th century. The five regular punishments established by the Tang code were, in descending order of severity: death, life exile, penal servitude (forced labour), beating with a heavy stick, or beating with a light stick. They remained the regular punishments until the closing years of the Qing.
The penal codes were divided into a "General Principles" and a "Specific Offences" section. Each dynasty retained the same basic content, though the Ming and Qing codes introduced some variation in the classification of offences. The Tang and Song codes consisted of a number of articles (律), many of which were adopted, sometimes without alteration, by the Ming and Qing codes. Once the articles of the code had been established at the beginning of the dynasty, there was a reluctance on the part of the founding emperor or his successors to change them.
Consequently, to deal with the problem of changing circumstances, the Ming started the practice of adding substatutes (例) to the code. The practice grew extensively under the Qing, with the result that, by the end of the 19th century, the penal code had lost something of its internal coherence and become an unwieldy instrument. Substatutes tended to be more specific and detailed than articles. Explanatory commentaries were added to the penal codes. The most authoritative were those approved by the throne for inclusion in the code. These often themselves contained rules not found in the articles or substatutes. In cases where no ambiguous article or substatute could be invoked, previous decisions by the Board of Punishments might function as "precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
s".
Some rules in the penal codes, especially those relating to civil matters, were obsolete or not enforced. Jean Escarra
Jean Escarra
Jean Escarra , French legal scholar, consultant of the Chinese government and professor at the Faculté de Droit de Paris....
, has suggested that the penal law as a whole was intended to function as a guide to model conduct and not as a set of enforceable rules. Whilst this view has largely been rejected, it is clear that many of the enforced rules on family relationships were retained on account of their symbolic value.
After the Han period, all rules of a code which were not lü were called ling (ordinances) and ge (rulings), sometimes shi (models), and often zhi (decrees).
Administrative law
Administrative law was well developed in China very early; most of its basic framework being laid by the Zhou Dynasty. In the administrative structure, the emperor was supreme and hence above the law. He could make the law, override existing laws, and upset administrative decisions taken in his name. Yet, although autocratic, the very existence of the complex bureaucratic machinery consistituted a check on his arbitrary exercise of power.On occasion he might modify a capital sentence referred to him by the central judicial agencies for his approval, but he always did so with reference to the facts of the particular case and explained in his edict the reasons for the change he had made. Sometimes he would even accept a remonstrance by his officials that the change was not proper and accept that he had to act in conformity with the existing law.
Civil law
Customary law, dealt with what in the West is termed private lawPrivate law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
or civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
. In particular, it comprises rules governing matters of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
and property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
. In contrast with Western systems in which civil law preceded criminal law, in traditional Chinese law, the reverse was true. From the provisions of the penal code, magistrates could either derive principles of civil law either directly, if a matter was in stated in the penal code such as matters regarding such as that regarding debt
Debt
A debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
and usury
Usury
Usury Originally, when the charging of interest was still banned by Christian churches, usury simply meant the charging of interest at any rate . In countries where the charging of interest became acceptable, the term came to be used for interest above the rate allowed by law...
, dealings with land, the borrowing and pledging of property, and the sale of goods in markets, or indirectly reading into a criminal statute a basis for a private civil suit.
Although the stereotypical view of Chinese magistrates was that they were reluctant to intervene as arbiters in any kind of civil dispute, more recent studies have argued that most of a magistrate's work involved the settlement of civil disputes. In this view, the reluctance of magistrates to take on case work had to do largely with the fact that the Chinese civil administration was small, and that the workload on magistrates was very large. Moreover, scholars in the early 21st century, such as Philip Huang, have argued that the traditional Chinese system of justice was fair, efficient, and frequently used in the settlement of disputes.
Use of property was divided into topsoil (tianpi) and subsoil (tiangu) rights. Landlords with subsoil rights had a permanent claim to the property if they paid taxes and received official seals from the government, but did not have rights to actively use the land. Instead, those with topsoil rights paid the subsoil landlord a fixed rent (or part of the proceeds of what was produced on the land) for not only the right to farm and live on the land, but the right to independently sell or lease the topsoil rights to another party. So as long as another party held topsoil rights, the party holding subsoil did not have right to actively use the land or evict the topsoil owner. Land, like other forms of property, was seen as being held collectively by the family and not individuals within the family. Another Chinese concept in imperial Chinese property rights was dian
Dian
Dian may refer to:* Dian Cecht, the God of healing in Irish mythology* Dian , one of the sons of Carman in Celtic or Irish mythology* Diān , an abbreviation for Yunnan, China* Dian Fossey, an American zoologist...
, or conditional sales of property that allowed the seller (i.e., his family) to buy back the land at the original price (without interest). The assumption was that land, having been held by a family for generations, should stay with the same family.
Procedure
Suspects and criminals were arrested by the county police or the posthouse chiefs who were subordinate to the county chief of police. One important principle of traditional Chinese law was that a person could not be convicted of a crime without a confessionConfession (legal)
In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person. Some authorities, such as Black's Law Dictionary, define a confession in more narrow terms, e.g...
. Because a confession was required for a conviction and sentence the use of torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
was often used to elicit such a confession. A common tool was the bastinado, applied to the buttocks and thighs.
During the Qin and Han, local magistrates were fully authorised to apply the full scale of punishments, including the death penalty.
In principle all criminal cases, whatever their gravity, were heard first in the court of the district in which the facts occurred. The magistrate investigated the facts, determined guilt or innocence, and then proposed the sentence for the offence as prescribed by the code. Whenever a sentence of greater severity than a beating was applicable, it was necessary to forward the case to the next superior court in the hierarchy, that of the prefect, for rehearing. The prefect's decision was final only in cases of penal servitude. Cases of exile or death were automatically reviewed by the provincial governor. All homicide cases and all cases attracting the death sentence were sent to the capital for review by the highest judicial tribunal, the Board of Punishments. No sentence of death could be implemented, except in extreme circumstances, without express approval from the emperor himself.
Moral values and the law
In contrast to the Legalists, the Confucian view of law was always centred on morality. Xun ZiXun Zi
Xun Zi was a Chinese Confucian philosopher who lived during the Warring States Period and contributed to one of the Hundred Schools of Thought. Xun Zi believed man's inborn tendencies need to be curbed through education and ritual, counter to Mencius's view that man is innately good...
, an early Confucian thinker, saw the necessity for legislation, but emphasised equally the importance of virtue on the part of the legislator and judiciary. There was a conviction that maintenance of the Confucian moral prescriptions through the apparatus of the state was essential for the preservation of a civilised society. Encouragement of the virtue of filial piety helped to strengthen the related duty of respect and submission to imperial authority.
The codes signal their moral orientation by placing right at the beginning of the "General Principles" section a description of the offences known as the "Ten Abominations
Ten Abominations
The Ten Abominations were a list of offenses under traditional Chinese law which were regarded as the most abhorrent, and which threatened the well-being of civilized society. They are listed below. The first three were capital offences:...
". These offences were regarded as the most abhorrent. As the official commentary of the Qing code states: "persons guilty of any of the Ten Abominations destroy human bonds (倫), rebel against Heaven (天), go against reason (理), and violate justice (義)."
Law-making and legal reasoning
Where a new piece of legislation was being considered, care would be taken to assess its relationship to the existing law.General characteristics
Equality before law was never officially accepted as a legal principle and as a legal practice. For example, the system of exemption of eight categories or persons from criminal prosecution (ba yi) and the system of exemption from punishment by giving up official positions (guandang) are formally recognised legal device.Unlike in the West, where secular and religious powers co-existed and fostered a tradition of pluralism
Pluralism (political theory)
Classical pluralism is the view that politics and decision making are located mostly in the framework of government, but that many non-governmental groups use their resources to exert influence. The central question for classical pluralism is how power and influence is distributed in a political...
, the traditional Chinese legal system, as a tool of the sovereign, has never encountered strong counterparts, and therefore never tolerated the existence of any alien powers and legal rules other than those of the emperor. From a socio-cultural standpoint, however, it is interesting to note that while in the West, individuals have typically been intrinsically seen as linked to a single religious tradition (that is, a strong division traditionally existed between rival denominations, or between Christianity and Judaism), in Chinese culture, people have been able to simultaneously be adherents of Buddhism, Taoism, and Confucianism, or some combination of these.
In contrast to many other peoples, the Chinese never attributed their laws to a divine lawgiver. The same is true for the rule which governed the whole of life, and which therefore might legitimately be called "laws"; no divine origin is found for li (rules of correct behaviour) either.
General
- Bodde, Derk, "Basic concepts of Chinese law: The genesis and evolution of legal thought in traditional China," Essays on Chinese civilisation, ed. Charles Le Blanc and Dorothy Borei. Princeton: Princeton University Press, 1981.
- Ch'ü T'ung-tsu, Law and society in traditional China. Paris and The Hague: Mouton, 1961.
- Escarra, Jean. Le droit chinois: Conception et evolution. Institutions legislatives et judicaires. Science et enseignement. Pekin: Henri Veitch, 1936.
- Huang, Philip, Civil Justice in China: Representation and Practice in the Qing Stanford, California, Stanford University Press, 1996.
Early Chinese law
- Hulsewé, Anthony F. P. "The Legalist and the laws of Ch'in," Leyden studies in Sinology, ed. W. L. Idema. Leiden: E. J. Brill, 1981.
- Hulsewé, Anthony F. P. Remnants of Han Law. Vol. 1. Leiden: E.J. Brill, 1955
- Hulsewé, Anthony F. P. Remnants of Ch'in Law: An annotated translation of the Ch'in legal and administrative rules of the 3rd century B.C. discovered in Yünmeng Prefecture, Hu-pei Province in 1975. Vol. 1. Leiden: E.J. Brill, 1985
- Uchida Tomoo (內田智雄), Kanjo keishō shi (漢書刑法志). Kyoto: Dōshishia University, 1958.
Fiction
- Van Gulik, RobertRobert van GulikRobert Hans van Gulik was a highly educated orientalist, diplomat, musician , and writer, best known for the Judge Dee mysteries, the protagonist of which he borrowed from the 18th-century Chinese detective novel Dee Goong An.-Life:Robert van Gulik was the son of a medical officer in the Dutch...
. Celebrated Cases of Judge Dee. New York: Dover Publications, 1976.
See also
- Religious lawReligious lawIn some religions, law can be thought of as the ordering principle of reality; knowledge as revealed by a God defining and governing all human affairs. Law, in the religious sense, also includes codes of ethics and morality which are upheld and required by the God...
- Comparative lawComparative lawComparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
- Chinese lawChinese lawChinese law is one of the oldest legal traditions in the world. In the 20th and 21st century, law in China has been a complex mix of traditional Chinese approaches and Western influences....
- List of ancient legal codes