China’s legal system, unlike legal systems of other great early civilizations, never sought divine sanction, nor was the government’s right to administer justice limited by religious authority or an independent judiciary. Administering justice was an important imperial function.
Early in China’s history, society was regulated by the ethical teachings of Confucius (551–479 BCE) and his disciples, which defined proper civilized behavior. In the Confucian worldview, civilized people were expected to observe the proper rites. And yet laws were needed to control people who disregarded or violated acceptable conduct.
Rule of Law
The first comprehensive legal system in China was created by the Qin dynasty (221–206 BCE), which ended feudalism and the Warring States period (475–221 BCE). The Qin legal code was based on Legalist principles of the rule of law. The Legalists were a group of thinkers who emerged during the Warring States period and dominated the Qin state before it unified the Chinese world. The Legalists advocated absolute control by a central authority and were radically opposed to Confucians in nearly every way. They believed that humankind was innately selfish and that society could function only if people recognized that as a fact. Punishment for even small crimes was stern, and no one—not even the prince—was above the law. Many scholars believe that the harshness of the Qin legal system contributed to that dynasty’s short duration.
Series of Codes
The succeeding Han dynasty (202 BCE–220 CE) began with the easing of the harsh provisions of the Qin legal system. Liu Bang (256–195 BCE), founder of the Han dynasty, reportedly said when he entered the capital of the defeated Qin: “Gentlemen, for a long time you have suffered beneath the harsh laws of Qin. Those who criticized the government were wiped out along with their families; those who gathered to talk in private were executed in the public market…I hereby promise you a code of laws consisting of three articles only: One, he who kills anyone shall suffer death; two, he who wounds another or steals shall be punished according to the gravity of the offense; three, for the rest I abolish all the laws of Qin” (de Bary et al. 2000, 233).
But the Confucian scholars who came to dominate the Han administration found that ethical principles were in themselves inadequate for ruling an empire and thus detailed laws were necessary for governance. In time elaborate law codes were enacted and supplemented by voluminous commentaries and case information to guide the judge in procedures and sentencing. The Han code has not survived in its entirety. But the codes of succeeding dynasties, beginning with the codes of the Sui (581–618 CE) and Tang (618–907 CE) dynasties, were based on the Han code.
The Tang code, promulgated in 653 CE, has survived in its entirety. It contained 501 articles grouped under twelve headings. It became the basis of later Chinese dynastic codes and the Japanese legal code. Subsequent dynasties—including the Song (960–1279), Ming (1368–1644), and Qing (1644–1912)—issued legal codes based on those of its predecessor, with modifications. But whereas the Qin code was absolute, egalitarian, and to be rigidly enforced, the later codes were relativistic and conditional. For example, the sentencing for a murderer would depend on who murdered whom and under what circumstances. Thus the killing of a father by a son, regardless of circumstances, was more severely punished than if the father killed the son. In other words, the law was invoked to support public morality because the killing of a father by a son, regardless of circumstance, was a heinous crime, whereas a father had the right to punish a son for bad behavior. However, the Legalist concept of mutual responsibility by members of the same family or among neighbors continued to be applied.
The Chinese code of the imperial era was primarily penal and administrative. A legal profession did not exist. The magistrate of the county was also its chief judicial official who acted as investigator, prosecutor, jury, and judge. The state had little interest in what is called civil law in modern society. Civil law cases were usually handled by clan and village elders and professional and guild leaders who resolved civil disputes where possible, based on commonly accepted moral principles. Although the magistrates and governors who were required to judge legal disputes were not trained in law, they were expected to be conversant with its major provisions and acquainted with previous case decisions. They were, however, aided by legal advisors and secretaries who specialized in legal issues. The exceptions were the judicial commissioners, who presided over the highest provincial courts, and the experts at the capital who reviewed important cases for the Ministry of Punishment, one of the six ministries of the central government; they were specialists in the law.
In criminal cases the magistrate was allowed to use torture in interrogating both the plaintiff and the accused, usually in the form of beating under prescribed conditions. The accused was usually imprisoned during the court proceedings. Sentences for serious cases were automatically reviewed by tribunals of higher officials, all the way up to the Ministry of Punishment. The review boards determined whether the relevant laws were property applied and whether the magistrate had been unjust or had acted oppressively. Both parties in a legal dispute were allowed to appeal the decisions of lower courts. Capital cases were reviewed by the emperor under solemn circumstances; some emperors even fasted before reviewing death sentences. The goal of the process was to leave as little discretion as possible in the hands of the officials who had sat in judgment and to ensure that no errors had been committed. Judges who went beyond the legal bounds or whose judgments were erroneous were severely punished.
Punishment
Judged by modern standards, the punishments carried out were cruel and harsh. Imprisonment was not part of the regular punishment system. There were several categories of punishment for those judged guilty. The type of punishment varied from one era to another. The most serious offenders were punished by death: decapitation, strangulation, and cutting the offender in two at the waist. Regarding particularly heinous crimes, such as treason, family members could also be put to death to avoid future consequences. The death penalty was sometimes commuted to exile, enslavement, or emasculation, and the condemned were sometimes allowed to commit suicide.
For a less serious crime, the punishment could be exile from home, the distance depending on the degree of the crime. Exile was usually to unpleasant places—the harsh desert or steppe areas in the north or northwest, for example, or the malarial southern regions. Exiles could sometimes take their families with them. Usually they were not required to work but had to report to the local authorities at stipulated intervals to prove that they had not escaped. Offenders could also be sentenced to hard labor for a term of years, usually in state construction projects, in state-run mines, or along the frontiers. Sometimes military service was be substituted for exile.
Other forms of punishment also existed and varied, depending on the era and the nature and severity of the crime. For example, for certain crimes the convicted person’s punishment was to wear, for a stipulated period, the cangue (a heavy wooden
collar worn around the neck, similar to the pillory used in England and early America). The purpose was public shaming of the convict. Tattooing on the face was also used as a punishment as a way to shame the convicted and to prevent him from escaping. Certain crimes were punished during some eras by amputation of the nose, ear, or a limb. Another form of punishment was being beaten with a heavy or light bamboo rod. The size of the rod and the number of strikes depended on the seriousness of the crime. Monetary fines were sometimes accepted in lieu of other punishments. The amount varied, again depending on the era and the seriousness of the crime, and the status and age of the offender.
Amnesties
Amnesties were imperial acts of grace that exempted a person from punishment or reduced the punishment of various classes of criminals. They were announced to commemorate victories in war, as thanksgiving for a new emperor’s accession to the throne, to celebrate a long reign, or some other auspicious occasion. They could be general amnesties or specific amnesties applied only to particular classes of criminals. Amnesties often did not apply to those who had committed the most heinous crimes. More amnesties were granted during the Tang and Song than were granted during the Ming and Qing dynasties. This was probably due to the custom of granting leniency and reducing the punishment originally imposed that was already built into the legal review systems of the Ming and Qing.
Circumstances Affect the Punishment
T’ien Tsung-pao had a five-year-old son… One day during her absence the child dawdled over his meal. His father told him to hurry, but he willfully dropped his bowl and broke it. Tsung-pao was angry and spanked his son, who cried. The boy’s stepmother, afraid that her mother-in-law would be unhappy about this, tried to calm the child. He kept on crying, upon which his stepmother slapped him…[The grandmother] was angry and scolded her son and daughter-in-law. Her son did not dare to argue with her. He begged their neighbor to comfort her. When she went to her room to rest, he went out to buy some wine for her to drink in the evening. His wife did not dare to enter into her mother-in-law’s room. The latter could not overcome her anger and hung herself. The Ministry of Justice considered that the child had deserved the disciplining he received at the hands of his parents and that the disciplining, since it occurred during the grandmother’s absence, could not be considered as having been performed in disobedience of her instructions, and that therefore her suicide could not have been anticipated. The case was held to be excusable and one deserving of pity.
Source: Ch’u T’ung-tsu.. (1961). Law and society in traditional China. Translated from Hsing-an hui-lan, 44, 112–132 and 44, 92–102. Paris: Mouton and Co., 51, 116.
Further Reading
Bodde, D. & Morris, C. (1967). Law in Imperial China. Cambridge, MA: Harvard University Press.
Cohen, J. A. et al. (Eds.). (1979) Essays on Chinese legal tradition. Princeton, NJ: Princeton University Press.
Ch’u, Tung-tsu. (1961). Law and society in traditional China. The Hague, The Netherlands: Mouton.
de Bary, W. T., Bloom, I., Chan, Wing-tsit, Adler, J., & Lufrano, R. J. (2000). Sources of Chinese tradition: From earliest times to 1600. New York: Columbia University Press.
Twitchett, D. & Fairbank, J. K. (Eds.). (1986). The Cambridge history of China, Vol. I, The Ch’in and Han Empires, 221 b.c.–a.d. 220. Cambridge, MA: Harvard University Press, 1986.
Source: Upshur, Jiu-hwa Lo (2009). Law, Imperial. In Linsun Cheng, et al. (Eds.), Berkshire Encyclopedia of China, pp. 1276–1278. Great Barrington, MA: Berkshire Publishing.
Law, Imperial (Dìguó de s?f? ?????)|Dìguó de s?f? ????? (Law, Imperial)
