Traditional Chinese law - China Information

March 8, 2014


		1 Introduction 2 History 3 Varieties of law 4 Procedure 5 Moral values and the law 6 Law-making and legal reasoning 7 General characteristics 8 Further reading

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Traditional Chinese law

Wikipedia

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 continous development since at least the 11th century BC. This legal tradition is distinct from the common law and civil law traditions of the Western countries|West, and to a great extent, is contrary to the concepts of contemporary Chinese law. It incorporates elements of both Legalism (philosophy)|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, l? (律), is usually rendered as "statute". It originally seems to have meant "standard pitchpipe", instruments used in Chinese cosmic magic.

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History

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 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 (state)|Zheng survive, from 536 BC and 504 BC - the first on cauldrons and the second on bamboo. The codes of Wei (state)|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".

Legalism and Qin

In 221 BC, the state of Qin (state)|Qin finally obtained supremacy over its rivals and founded the Qin Dynasty. One 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 Legalism (philosophy)|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 offenses should be clear, intelligible to the ordinary people, and properly communicated to them.

Imperial law

Legalism survived in a diluted form after the Han Dynasty 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 heirarchy 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.

This process continued throughout the Han and later dynasties, culminated in the Tang Dynasty. Ch'? 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 653. The code is regarded as a model of precision and clarity in terms of drafting and structure.

Confucianism in revised form (Neo-Confucianism) continued to be the state orthodoxy under the Song Dynasty|Song, Ming Dynasty|Ming and Qing Dynasty|Qing dynasties. This ensured that the Confucian foundations of the Tang code were retained, and in some respects they were even strengthened. By the Qing dynasty, however, the mass of legislation had increased to such an extent that it was doubtful even officials could adequately master the complex distinctions it came to contain.

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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 powers was unknown in China until the 20th century. In particular, judicial and administrative functions were performed by magistrates 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 l? (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 developed during the Sui Dynasty and completed by the Tang in 653. This code provided the model for all the later traditional penal codes. 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 offenses, rules that define generally the allocation of punishment, or those that establish principles of interpretation. Each offense was allocated a specific punishment. The task of the magistrate was to identify the proper name of the offense 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 the 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 the heavy stick, or beating with the 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 Offenses" section. Each dynasty retained the same basic content, though the Ming and Qing codes introduced some variation in the classification of offenses. 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 unwieldly 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 "precedents".

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 l? 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 Qin 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 reomonstrance 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 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 from reluctant from intervening as arbiters in any kind of civil dispute, more recently 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 settlements of disputes.

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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 confession. Because a confession was required for a conviction and sentence the use of torture was often used to illicit 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 offense 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.

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Moral values and the law

In contrast to the Legalists, the Confucian view of law was always centred on morality. Xun Zi, an early Confucian thinker, saw the necessity for legislation, but emphasized 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 offenses known as the "Ten Abominations". These offenses 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 (伦), rebel against Heaven (天), go against reason (理), and violate justice (义)."

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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.

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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 plurality, 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.

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.

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