The traditional Chinese legal system has been designed to keep order, rather than to enforce a system of individual rights and equality. (Orts, 2001) The state is protected by reinforcing a social and moral structure that mirrors relationship within family to the relationship of the individual to the state. (Orts, 2001) At the heart of traditional Chinese thought is the idea that everything is dominated by a cosmic universe of which there are three forces: Heaven, Earth and Man.
Worship of a Supreme Being is not part of the traditions beliefs, however the political foundation of the state is based on a supernatural order that Heaven’s representative on earth is the Emperor. (Orts, 2001) The Emperor therefore expected his subjects not merely to follow but to worship. The basis for his rule is almighty, but the laws by which he governs have no divine origin except that they are promulgated by the Emperor. (Orts, 2001) A new dynasty could, and usually did, wipe out the previous Code and establish an entirely new one.
Since these laws were valid only to the extent that they had come from the Emperor, it would be difficult for a new dynasty to justify using the previous code. (Orts, 2001) Three major schools of thought dominated the Chinese empire: Confucianism, Taoism and Legalism (Fa Jia). (Orts, 2001) Taoism is both a religion and a philosophy, but since its primary influence is on Chinese art and poetry, it has little to say that is applicable to the legal system.
The Confucian and Legalist schools of throughout have competed to dominate the imperial system of justice. (Orts, 2001) As the first “unified” Chinese imperial dynasty, the Qin dynasty relied on a legalist code of laws to ensure unity, obedience and loyalty to the governing body. (Fu, 1996) The later Han Dynasty maintained the Empire using a very different code derived from the teaching of Confucius. Though both dynasties ruled a vast unified Empire for a number of years, the methods, laws and governments they used were markedly different.
The question underlying the contrast between legalism and Confucianism is whether either provides a formula for long-lasting, peaceful imperial rule. Although it was very short, the Qin is one of the most important legal system because it is the closest China came to a purely Legalist system. (Fu, 1996) The best original source on law in the Qin dynasty is from the grave of a Qin official discovered in the 1970s. (Fu, 1996)A set of administrative laws inscribed on sheets of bamboo set out common crimes and their punishments.
These range from killing children or slaves without permission (as in later dynasties, a parent could seek approval from the magistrate to kill a child who had failed to obey them) to failure to care for one’s horses or not using the standard weights and measures. (Fu, 1996) The Qin were able to centralize their rule in central-eastern China as the most powerful of the Warring States. (Fu, 1996) Under the Qin, a centralized bureaucracy was established and the separate portions of the Great Wall were unified.
The Qin dynasty also saw the construction of a road system, the division of the empire into states, and adoption of a series of standards in currency, weights and measures and an official script. (Fu, 1996) Under Qin ruler Qin Xioagong, Shang Yang wrote a series of reforms that would form the basis for the legal system under the Qin. (Fu, 1996) Although there was little time to implement his reforms before the Han took over, Shang’s reforms are considered the basis of the Legalist approach.
In 356 BC, Shang ordered the destruction of documents on Confucian thinking, which unfortunately included volumes of material on the pre-Qin Confucian material such as the Book of Songs, and the Book of Documents. (Fu, 1996)He also organized the military into ranks and implemented Li Kui’s book of law. Six years later, Shang reformed the tax system and a standardized system of land allocation. (Fu, 1996)Shortly after the death of the Qin Xiaogong, Shang found himself the victim of one of the harsh punishments he advocated when he was executed by being pulled apart by four chariots.
Following the death of Shang Yang, the campaign against Confucian scholars continued and hundreds of Confucian scholars were buried alive. (Fu, 1996) The Qin dynasty is important in comparison to later systems because despite the substantial success it had in establishing an infrastructure and a solid base of power from which to exert authority, the system collapsed upon itself. (Ren, 1997) The harsh punishments caused revolts by people who had incentive to revolt because they would otherwise be executed. (Ren, 1997)
The rule of law during the Qin dynasty was influenced by the philosophical tenets of legalism. (Fu, 1996)Legalism is a philosophy that advocates strict adherence to law and obedience to authority. The laws in question tend to focus on punishment for disobedience. (Fu, 1996)The characteristics of legalism were necessary for the government to exercise the degree of control that it did, in order to unify China, and administer this large empire. (Fu, 1996)The legal philosophy of legalism defines law as a tool used by the powers that be to enforce behavior demanded of the leadership in question.
As such, legalistic philosophy focuses upon the punitive aspect of law, rather than a positive aspect(Fu, 1996). A 1975 discovery of Qin legal documents gave historians their first detailed look at the specifics of administrative and criminal law in the Qin dynasty. (Fu, 1996) In terms of punishment given for offenses, the Qin legal code offered a gamut of severity that included several forms of execution, five types of mutilation, forced labor, shaving of a beard, and any number of monetary fines. (Fu, 1996) Theft of property had many penalties that were predicated on a number of factors.
Such factors included the social rank of the perpetrators, the number of participants, and the value of the property stolen (or targeted for theft). (Fu, 1996)Punishments in the category of theft ranged from monetary fines to terms of bonded service. In the area of violent crimes, the penalties are clear and precise. An act of violence against a spouse or child warrants cutting off of a beard, as does mutilation of another in a fight. (Fu, 1996) The killing of children is punished with tattooing and hard labor. This only applies if the child in question is without physical or mental defects; in other cases, it is not illegal to kill a child.
Conspiracy to commit murder is punishable by death, as is the murder of a male heir to a relative. Despite the reputation of Qin justice as cruel and arbitrary, investigation of crimes was done in a fairly meticulous manner. (Fu, 1996) Torture of witnesses, for example, had to be documented, and was only allowed in cases where a witness’ statement, freely given, did not make sense or contradicted known facts of the case. (Fu, 1996)It is also noted in Qin law that flogging is not the preferred way to obtain accurate information.
In general, the laws of the Qin dynasty, rather than being arbitrary and cruel, reflect a sophisticated consideration of such matters as intent, mens rea, and degree of severity. (Fu, 1996)While the penalties outlined may seem to be quite extreme, they reflect nothing more than the practices and standards of the time and culture in which they were executed. (Fu, 1996) The Han dynasty is recognized for centralizing the Chinese empire and dissolving the noble-run state system. (Perenboom, 2002) In the place of the feudal system, the Han developed a bureaucracy, ostensibly merit-based, which would last for the next two millennia.
Although we know less about the Han legal system than we do the later dynasties, the Han dynasty is worth a discussion because of the foundations it laid for physical and political infrastructure. (Perenboom, 2002) The population of the Chinese Empire under the Han was about 50 million. (Perenboom, 2002) It was during this period that the Silk Road, the trade route to the west, was developed. (Perenboom, 2002) Although the Han adopted Confucianism as the official state doctrine legalist influences remaining in the penal emphasis of the system and the formulaic quality of the laws (the crime of x is punished with y).
From a Confucian perspective, modeling proper conduct was the best way to maintain order. (Perenboom, 2002) These rules of behavior are called li, a general code of proper human conduct in human society. (Perenboom, 2002) These rules incorporate institutions and relationships that are necessary for harmonious living. Legalists, however, propounded a written law with specific punishments that would deter bad behavior, which is referred to as fa. (Perenboom, 2002) Where li is designed to prevent conflict, fa is designed to punish it, and thereby deter.
The school of philosophy based on the teachings of Confucius (551-479 BC) formed the basis of the traditional political system beginning in the Han Dynasty. (Perenboom, 2002) Confucius was from a minor noble family in what is now Shantung province. Although he never obtained an official position of any significant power, his students passed on his teaching on government and social relationships. (Perenboom, 2002) Confucianism recognizes five key relationships in society, each with its correct virtue.
One of the most important was the relationship between father and son, and the primary virtue in that relationship was filial piety. (Perenboom, 2002) Another key relationship was that between ruler and subject, where loyalty was the proper attribution. (Perenboom, 2002) Brothers should exhibit, not surprisingly, brotherliness, and between husband and wife love and obedience was paramount. (Perenboom, 2002) Finally, between friends there should be faithfulness. (Perenboom, 2002) The moral feelings and obligations between people generally, and in the five relationships especially, are called jen.
In Confucian thought, there is no separation between duties and mores in and to the family and the state. (Rosett, Cheng, Woo, 2003) Although the emperor has the greatest responsibility because he must care for his subjects as his children but he has little accountability to them. (Rosett, Cheng, Woo, 2003) The people’s relationship with the emperor is within the relationship of filial piety, they depend on him to be fair and act in their best interest, but they have no right to expect him to do so, and no recourse when he did not.
The emperor was not accountable to the law; he had absolute authority to change and overrule the law on a case-by-case basis. He could also issue edicts to change the laws, and create ex post facto law. The hierarchy of relationships (li) was primary to the codified law (fa), and where the two conflicted the li should triumph. (Rosett, Cheng, Woo, 2003) Individual rights were subjugated to the paternalistic authority of the state. (Rosett, Cheng, Woo, 2003) Adherents to Confucianism were suspicious of an institutional law but accepted it as a necessary evil.
Confucianists argued that a legal system of fa would encourage people to act exclusively in self-interest and lead to corruption. (Hucker, 1975) If everyone acted in their proper roles in accordance with the li and in the interest of their family and the state as the two concentric duties, theoretically there would be no need for a legal system. (Hucker, 1975) Practically, however, Confucian officials knew punishment would still be necessary where people failed to obey the li.
However, Confucian scholars continued to argue that the moral training of the ruler was more useful to promote harmony than coercion. (Hucker, 1975) In the end, the Chinese legal system had a healthy amount of both. (Hucker, 1975) The first Han Emperor, Gaozu (256-195 BC), was one of only two Chinese emperors to rise from the peasant class. (Hucker, 1975) During the Qin dynasty, he was a low-level police officer in Jiangsu province who was detained in his duty of transporting prisoners by bad weather.
According to the laws of the legalist Qin, this failure, even though he was not at fault, was punishable by death. Having nothing to lose, he led the prisoners in revolt. (Hucker, 1975) This group eventually grew into an army and he ended up in position to overthrow the Qin and establish a dynasty of his own. (Hucker, 1975) Although Confucianism was embraced as the official state doctrine, Gaozu recognized the importance of creating a written legal code. (Dull & Chu, 1972) The official in charge of the legal code was Xiao He, who had served with Gaozu during the uprising.
The code eventually the legal code took up 906 volumes, and was divided into 60 sections. (Dull & Chu, 1972) Under Emperor Wu Di, the official Dong Zhongshu required that the verdicts be supported by a rationale which applied the statutes to the facts of the case. (Dull & Chu, 1972) It was during this period that the first laws against the killing of slaves appeared. In addition, nobles and officials were not permitted any deference compared to peasants when it came to prosecution and punishment. (Dull & Chu, 1972) Dong also imbued the laws with elements cosmic harmony.
He believed that the legal system should try to sort out imbalances in yin and yang and reflect the harmony of the five elements: wood, fire, earth, metal and water. (Dull & Chu, 1972) Despite the wide application of laws, severe and grisly punishments were still popular. (Dull & Chu, 1972) Typical punishments included killing of the defendant’s relatives, facial tattooing (particularly for theft), castration, amputation of the nose or of one or more of the feet, wearing an iron collar, exile, and a variety of methods of execution, such as death by cutting in two at the waist, boiling and beheading.
Among the non-capital punishments, minor offenders were often subject to long terms of servitude on state projects. (Dull & Chu, 1972) Exile was also used as a common punishment during the Han dynasty. (Dull & Chu, 1972) Despite the similarities between Qin and Han law and punishment, the Confuscian philosophy of the Han dynasty became the one from which the rule of future dynasties would derive, while the legacy of the Qin dynasty was largely lost in the annels of history.