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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.
To Westerners, perhaps the most striking feature of the traditional Chinese criminal procedure is that it was an inquisitorial system where the judge, usually the district magistrate, conducts a public investigation of a crime, rather than an adversarial system where the judge decides between attorneys representing the prosecution and defense. "The Chinese traditionally despised the role of advocate and saw such people as parasites who attempted to profit from the difficulties of others. The magistrate saw himself as someone seeking the truth, not a partisan for either side."
Two traditional Chinese terms approximate "law" in the modern Western sense. The first, fǎ ( 法 ), means primarily "norm" or "model". The second, lǜ ( 律 ), is usually rendered as "statute".
Laws were developed by government officials to regulate ancient Chinese society. The laws of the aristocratic societies of early China put substantial emphasis on maintaining distinct ranks and orders amongst the nobles, in addition to controlling the populace. As a result, lǐ (禮), meaning "ritual" or "etiquette," governed the conduct of the nobles, whilst xíng (刑), the 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 the 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. The Kang Gao is a chapter of the Book of Documents.
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. Additionally, other notable codes include the codes of Wei, drafted by Li Kui. Such codification was part of the process by which rulers attempted to make the central administration of the state more effective. However, 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.
In 221 BC, the state of Qin finally obtained supremacy over its rivals and thus the Qin dynasty was founded. 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 of thought.
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 the government. At the same time, moral considerations and social standing should be rigorously excluded. Another hallmark of Legalist thinking was that equality should be 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 and intelligible to the ordinary people, and they should be properly communicated to the populace.
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.
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 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 lawmakers 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 AD 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 es (Mingle)
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 for serfs as:
Leniency is applied according to the Eight Deliberations:
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.
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 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.
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 Code 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 rules, yet punishments were still to be humane. The mutilating 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 "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 lü were called ling (ordinances) and ge (rulings), sometimes shi (models), and often zhi (decrees).
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 constituted 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.
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 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 (黃宗智), 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 concept in imperial Chinese property rights was dianmai (典賣/典卖), more commonly known as huomai (活賣/活卖), or conditional sales of propertythat 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. From the Sui dynasty onwards, women could not hold property directly and, for land to stay in the same family, it had to pass between male heirs following the rule of primogeniture.
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 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.
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 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)."
Where a new piece of legislation was being considered, care would be taken to assess its relationship to the existing law. Laws were made through the Government Officials then shown to the Emperor to get laws changed and made for people to obey.
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, 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, 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.
The earliest known written records of the history of China date from as early as 1250 BC, from the Shang dynasty, during the king Wu Ding's reign, who was mentioned as the twenty-first Shang king by the same. Ancient historical texts such as the Book of Documents, the Records of the Grand Historian and the Bamboo Annals mention and describe a Xia dynasty before the Shang, but no writing is known from the period, and Shang writings do not indicate the existence of the Xia. The Shang ruled in the Yellow River valley, which is commonly held to be the cradle of Chinese civilization. However, Neolithic civilizations originated at various cultural centers along both the Yellow River and Yangtze River. These Yellow River and Yangtze civilizations arose millennia before the Shang. With thousands of years of continuous history, China is one of the world's oldest civilizations, and is regarded as one of the cradles of civilization.
Chinese philosophy originates in the Spring and Autumn period and Warring States period, during a period known as the "Hundred Schools of Thought", which was characterized by significant intellectual and cultural developments. Although much of Chinese philosophy begins in the Warring States period, elements of Chinese philosophy have existed for several thousand years; some can be found in the Yi Jing, an ancient compendium of divination, which dates back to at least 672 BCE. It was during the Warring States era that what Sima Tan termed the major philosophical schools of China--Confucianism, Legalism, and Taoism--arose, along with philosophies that later fell into obscurity, like Agriculturalism, Mohism, Chinese Naturalism, and the Logicians.
Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches.
The Qin dynasty was the first dynasty of Imperial China, lasting from 221 to 206 BC. Named for its heartland in Qin state, the dynasty was founded by Qin Shi Huang, the First Emperor of Qin. The strength of the Qin state was greatly increased by the Legalist reforms of Shang Yang in the fourth century BC, during the Warring States period. In the mid and late third century BC, the Qin state carried out a series of swift conquests, first ending the powerless Zhou dynasty and eventually conquering the other six of the Seven Warring States. Its 15 years was the shortest major dynasty in Chinese history, consisting of only two emperors, but inaugurated an imperial system that lasted from 221 BC, with interruption and adaptation, until 1912 AD.
The Chinese sovereign is the ruler of a particular period in ancient China, and later imperial China. Several titles and naming schemes have been used throughout history.
Emperor of China was the title given to the monarch of China during the Imperial Period of Chinese history. In traditional Chinese political theory, the Emperor was considered the Son of Heaven and the autocrat of All under Heaven. Under the Han dynasty, Confucianism replaced Legalism as the official political theory and succession theoretically followed agnatic primogeniture. The Chinese emperors who shared the same family were classified into historical periods known as dynasties.
The Mandate of Heaven is a Chinese political and religious teaching that was used in ancient and imperial China to justify the rule of the King or Emperor of China. According to this belief, Heaven — which embodies the natural order and will of the universe — bestows the mandate on a just ruler of China, the "Son of Heaven" of the "Celestial Empire". If a ruler was overthrown, this was interpreted as an indication that the ruler was unworthy, and had lost the mandate. It was also a common belief that natural disasters such as famine and flood were divine retributions bearing signs of Heaven's displeasure with the ruler, so there would often be revolts following major disasters as the people saw these calamities as signs that the Mandate of Heaven had been withdrawn.
Legalism or Fajia is one of Sima Tan's six classical schools of thought in Chinese philosophy. Literally meaning "house of administrative methods" or "standards/law" (fa), the Fa "school" represents several branches of what have been termed realist statesmen, or "men of methods", who played foundational roles in the construction of the bureaucratic Chinese empire, with their teachings coming to temporary overt power as an ideology with the ascension of the Qin Dynasty. In the Western world, the Fajia has often been compared to Machiavellianism, and considered akin to an ancient Chinese philosophy of Realpolitik, emphasizing a realist project of consolidating the wealth and power of the state and its autocrat, with the goal of achieving order, security and stability. With their close connections to the other schools, some Legalists would go on to be a major influence on Taoism and Confucianism, and legalism remains highly influential in administration, policy and legal practice in China today.
A jùn was a historical administrative division of China from the Eastern Zhou until the early Tang dynasty. It is usually translated as a commandery.
Shang Yang, also known as Wei Yang and originally surnamed Gongsun, was an ancient Chinese philosopher, politician and a prominent legalist scholar. Born in the Zhou vassal state of Wey during the Warring States period, he was a statesman, chancellor and reformer serving the State of Qin, where his policies laid the administrative, political and economic foundations that strengthened the Qin state and would eventually enable Qin to conquer the other six rival states, unifying China into a centralized rule for the first time in history under the Qin dynasty. He and his followers contributed to the Book of Lord Shang, a foundational philosophical work for the school of Chinese legalism.
From the inauguration of dynastic rule by Yu the Great in circa 2070 BC to the abdication of the Xuantong Emperor on 12 February 1912 in the wake of the Xinhai Revolution, China was ruled by a series of successive dynasties. Dividing the history of China into periods ruled by dynasties is a common method of periodization utilized by scholars.
Xun Kuang, also widely known as Xunzi, was a Chinese Confucian philosopher and writer who lived during the Warring States period and contributed to the Hundred Schools of Thought. A book known as the Xunzi is traditionally attributed to him. His works survive in an excellent condition, and were a major influence in forming the official state doctrines of the Han dynasty, but his influence waned during the Tang dynasty relative to that of Mencius.
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 synthesized Legalist and Confucian interpretations of law. Created in AD 624 and modified in AD 627 and 637, it was promulgated in AD 652 with 502 articles in 12 sections and enhanced with a commentary in 653. Considered as one of the greatest achievements of traditional Chinese law, the Tang Code is also the earliest Chinese Code to have been transmitted to the present in its complete form.
The Great Qing Legal Code, also known as the Qing Code or, in Hong Kong law, as the Ta Tsing Leu Lee (大清律例), was the legal code of the Qing empire (1644–1912). The code was based on the Ming legal code, the Great Ming Code, which was kept largely intact. Compared to the Ming code which had no more than several hundred statutes and sub-statutes, the Qing code contained 1,907 statutes from over 30 times of revisions between 1644 and 1912. One of the first of these revisions was in 1660, completed by Wei Zhouzuo and Bahana.
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. The legal codes of later Chinese dynasties were based on the Kaihuang Code which is of strategic significance in the history of Traditional Chinese law.
Huang–Lao or Huanglao was the most influential Chinese school of thought in the early 2nd-century BCE Han dynasty, having its origins in a broader political-philosophical drive looking for solutions to strengthen the feudal order as depicted in Zhou propaganda. Not systematically explained by historiographer Sima Qian, it is generally interpreted as a school of syncretism, developing into a major religion - the beginnings of religious Taoism.
The nine familial exterminations or nine kinship exterminations was the most serious punishment for a capital offense in Ancient China. A collective punishment typically associated with offenses such as treason, the punishment involved the execution of all relatives of an individual, which were categorized into nine groups. Nine exterminations were often done by slow slicing. The occurrence of this punishment was somewhat rare, with relatively few sentences recorded throughout history. There were also variants of the punishment found in ancient Korea and Vietnam.
Slavery in China has taken various forms throughout history. Slavery was abolished as a legally recognized institution, including in a 1909 law fully enacted in 1910, although the practice continued until at least 1949. Illegal acts of forced labor and sexual slavery in China are present twenty-first century with harsh punishment.
County magistrate sometimes called local magistrate, in imperial China was the official in charge of the xian, or county, the lowest level of central government. The magistrate was the official who had face-to-face relations with the people and administered all aspects of government on behalf of the emperor. Because he was expected to rule in a disciplined but caring way and because the people were expected to obey, the county magistrate was informally known as the Fumu Guan, the "Father and Mother" or "parental" official.