Chinese Imperial Law

 

1.     Confucianism and Legalism: “Laws (fa) without goodness cannot succeed in operating of itself.”[1]

 

A.   Confucian vs. legalist

 

The traditional Chinese legal system has been designed to keep order, rather than to enforce a system of individual rights and equality. 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.  To understand this structure, a brief explanation of the philosophical bases of the traditional Chinese concepts of the authority to rule is necessary. 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.[2] 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.  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.  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.  As a result, the Codes of the four of the last five dynasties – the Tang, Song, Ming and Qing, are remarkably similar. This body of law, and the manner in which is was enforced, is generally referred as “imperial law.”

Three major schools of thought dominated the Chinese empire: Confucianism, Taoism and Legalism (Fa Jia). [3] 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.[4] The Confucian and Legalist schools of throughout have competed to dominate the imperial system of justice.

 From a Confucian perspective, modeling proper conduct was the best way to maintain order.  These rules of behavior are called li, “a general code of proper human conduct in human society.” [5] It incorporates institutions and relationships that are necessary for harmonious living.[6] Legalists, however, propounded a written law with specific punishments that would deter bad behavior, which is referred to as fa.[7] Where li is designed to prevent conflict, fa is designed to punish it, and thereby deter. Both systems are explored in further detail below.

1.     A Confucianist Approach to Law

The school of philosophy based on the teachings of Confucius (551-479 BC) formed the basis of the traditional political system.  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. [8]  Confucian thinking was grouped together in the Song dynasty as the Four Books (su shi): The Analects of Confucius, Mencius, The Great Learning and The Golden Mean.[9]  Confucius’ original teachings have been substantially expounded upon by two later philosopher-officials, Mencius (c.372 – 289 BC) and Hsun-tzu (c. 300 – 235) BC.  Confucianism as it was adopted formed the “dominant set of moral and ritualistic norms for the regulation of human relationships,” for the greater part of two millennia in China.[10]

            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. Another key relationship was that between ruler and subject, where loyalty was the proper attribution. Brothers should exhibit, not surprisingly, brotherliness, and between husband and wife love and obedience was paramount. Finally, between friends there should be faithfulness. The moral feelings and obligations between people generally, and in the five relationships especially, are called jen. As important as jen is I, the consciousness of one’s moral obligations.[11]  These concepts as applied to the five relationships form the foundation of Confucian social structure.

            In Confucian thought, there is no separation between duties and mores in and to the family and the state. Although the emperor has the greatest responsibility because he must care for his subjects as his children but he has little accountability to them. 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.[12]  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. Individual rights were subjugated to the paternalistic authority of the state.[13]

            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 “gaming.” [14]  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. 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. In the end, the Chinese legal system had a healthy amount of both. [15]

 

2.     A Legalist Approach to Law

Legalists were not motivated by concerns over cosmic harmony or familial duty. The single goal of the Legalist philosophy is to maintain the state by strict order.  Maintaining order was simply a matter of manipulating people’s natural self-interest to encourage behavior that would promote a civil society.  Legalists thought this was best accomplished by deterrence of unwanted behavior by a harsh system of crime and punishment.  Law was the primary tool for promoting order and keeping the population under control (shu).[16]

We know little about the earliest Legalist scholar, Kuan Chung, who lived during the 7th century BC in the Chou dynasty.  The best-known advocates of Legalist theory were officials in the Qin dynasty, Shang Yang (390 – 338 BC), also called Kung-san Yang, and Han Fei (280-233 BC).[17] Shang encouraged the publication of the laws, and indeed during the Qin they were posted outside the palace, although literacy was so low it was unlikely the laws would be communicated to the peasant level.  Han had been trained by the Confucian scholar XENIX (313-238 BC) but became a proponent of the Legalist system, and authored the Hanfeizi, a collection of essays on Legalism.[18] Their particular reforms are discussed further below in the section on the Qin.

Legalism is an approach to governing more than a philosophy. Legalism does not share the Confucian or Taoist reverence for the past, and did not espouse the notion of ancestor-worship.[19] Personal moral virtue is not an important characteristic of government, except to the extent that it promotes power.  Han Fei derided the officials who were unwilling to change government as the empire developed, arguing that a changing society required changing rules, which he describes by analogy:

“There was a plowman of Sung in whose field was a tree stump. When a rabbit scampered headlong into the stump, broke its neck and died, he abandoned his plow and kept watch over the stump, hoping it would get him more rabbits. But he got no more rabbits and became the laughingstock of the whole state of Sung. Now, wanting to apply policies of the former kings in governing people in these times belongs in the very same category as watching over that stump.”[20]

 

            The Legalist approach to the law, in its purest form, has the following characteristics: a clear, written, public law, that would apply to as many situations as possible; a harsh set of punishments, swiftly carried out, that would deter people from breaking the laws; and a benefit for people who acted in ways that advanced the interests of the state.

 

3.     Compromise:

Despite very different conceptions of the role of law in society, the imperial legal system reflected elements of both.  The primary method of maintaining order in traditional Chinese society was within the family or community, according to the dominant social customs.  However, when li failed to maintain the social order, fa would be employed to penalize the person(s) responsible for such a disruption and to balance the cosmic authority.[21]Fa is employed as a last resort to maintain social order when li has failed to do so.” We can see in the development of the imperial legal codes how Legalist and Confucian approaches exert differing influences.

 

2. Development of a Written Code

Insufficient data on pre-historic Chinese dynasties, the Xia (c. 2205-1766 BC) and the Shang (c. 1766 – 1122 BC) exist to engage in a useful discussion of the law of that period. Instead of providing a dynasty-by-dynasty explanation of the development of the legal system under each regime, I have taken those dynasties which produced the most important codes: the Han, the first truly unified regime, and the Tang, regarded as the high point of the legal system because of the detailed code and the efficacy of the institutions. The Yuan is also worth a brief discussion because it is the only dynasty in the last millennia not to use a Code, but instead instructed judicial officials to use precedent and government edict to make decisions. The first action of the first Ming Emperor was to re-institute an imperial legal code. It had become both a tool for imposing order on a vast system and a “symbol of legitimacy.”[22] Finally, the Qing code, although also based on the Tang, reflected the rapid changes taking place in society as a result of the interaction with the Western world.

Zhou (c. 1027 BC – 221BC)[23]

A brief discussion of the Zhou dynasty is useful because it is the first that we know produced a written set of laws.  During the Zhou Chinese society was feudal, so there was no centralized institutional structure that could implement laws. The earliest legal codes appear in 536BC as the “book of punishment” (xing shu) which were inscribed on a set of bronze vessels.[24]  Although the vessels themselves no longer exist, there are records protesting the adoption of written laws. One record, a letter from an official to the imperial court, protests the moral and political dangers of promulgating legal norms:  “When people know that the penalties are, they lose their fear of authority and acquire a contentiousness which causes them to make their appeal to the written words, on the chance that this will bring them success…”[25]

The fear of a written law expresses the sentiment about fears that the population will manipulate the system if they know about it. This speaks of the belief that people will naturally act in self-interest, despite the Confucian perspective that in a state run by moral example, people will act in the interest of society, even at their own expense.  In a system based on individual rights it seems ridiculous to keep the laws secret, but in the Chinese system the laws are not designed to protect the people. To understand the purpose and structure of it, we have to look at from the top down – the state exerting control over the individual, rather than the Western system, where the goal is the reverse.

 

Warring States

During the Warring States period, China’s political system fragmented into states. Li Kui, a leader of the Wei state, compiled a code of criminal laws in 407 BC, including some from other states. This document, called the Canon of Law (Fajing) is thought to be the basis for the codified laws of the Qin and Han dynasties.[26]

 

Legalism Under the Qin (221BC – 207BC)[27]

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. The Qin dynasty saw the most brutal types of punishments, including being boiled alive, having one’s ribs removed, and death preceded by a series of mutilations (the later versions of the “death by a thousand cuts” were less severe).[28]  Not surprisingly, wide-scale uprisings against the dynasty eventually led to its fall.

The best original source on law in the Qin dynasty is from the grave of a Qin official discovered in the 1970s. 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.[29]

The Qin were able to centralize their rule in central-eastern China as the most powerful of the Warring States.[30]  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.[31]

            Under Qin ruler Qin Xioagong[32], Shang Yang (see Legalism, above) wrote a series of reforms that would form the basis for the legal system under the Qin.  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.[33]  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.[34] 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.[35]

            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. The harsh punishments caused revolts by people who had incentive to revolt because they would otherwise be executed. 

 

The First Centralized System: The Han (206 BC – AD 220)

The Han dynasty is recognized for centralizing the Chinese empire and dissolving the noble-run state system. 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. The population of the Chinese Empire under the Han was about 50 million.[36]  It was during this period that the Silk Road, the trade route to the west, was developed.[37] 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). [38]

The first Han Emperor, Gaozu (256-195 BC), was one of only two Chinese emperors to rise from the peasant class.[39] 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. This group eventually grew into an army and he ended up in position to overthrow the Qin and establish a dynasty of his own.

            Although Confucianism was embraced as the official state doctrine, Gaozu recognized the importance of creating a written legal code.[40]  The official in charge of the legal code was Xiao He, who had served with Gaozu during the uprising.[41]  The code eventually the legal code took up 906 volumes, and was divided into 60 sections.[42]

            Under Emperor Wu Di, the official Dong Zhongshu (c. 179 – 104 BC) required that the verdicts be supported by a rationale which applied the statutes to the facts of the case. 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.[43]  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.[44]

            Despite the wide application of laws, severe and grisly punishments were still popular. 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.[45] Among the non-capital punishments, minor offenders were often subject to long terms of servitude on state projects.  Exile was also used as a common punishment during the Han dynasty. Officials were relieved of the most gruesome punishments, not that they would have been particularly effective laborers, and subject to heavy fines and removal from office.[46]

 

The next four centuries saw rapid turnover of rule in China. No one empire was able to implement a consistent code to the extent the Han had done.  Although the Sui (581- 618) did produce a written set of laws, called the Kaihuang Lu, in 581, no copies of it exist.  It was not until the Tang dynasty that a central set of laws was applied to the empire.

 

The High Point: The Tang (618-906)

During the Tang dynasty, foreign trade flourished and art and literature enjoyed a golden age. Agricultural developments such as irrigation, crop rotation, ox-drawn plows and water-powered mills created a more productive harvest, and the standard of living of the average peasant increased.  The use of paper, printing, and coal burning was witnessed by the people of the Tang dynasty centuries before their European counterparts.

The sophistication and depth of the legal system in the Tang dynasty has led to it’s being lauded as the high point of the imperial Chinese legal system.  The codification of laws developed in the Tang dynasty is the source of the law for the Song, Yuan, Ming and Qing dynasties.[47] Several reforms were made under the reign of Emperor Li Yuan.  The first Tang code was created in 617, at the start of the dynasty. The Kai Huang code was replaced and the death penalty was eliminated for all crimes except treason, murder, robbery and desertion from the army.[48] Two years later, the Emperor appointed a commission to review the Kai Huang code to come up with a replacement. Five years later, the commission promulgated a 500-article code. In 637, under the reign of Li Shimin, the code was again revised and again crimes punishable by death or exile were decreased. Two more revisions took place in 651 and 653. The best known Tang Code is from 737, which is divided into 12 sections and for the first time addressed the issue of competition. Article 33 of the “Miscellaneous” section of the code ordered that anyone found to have created barriers to entry to the market or have engaged in price fixing will be subject to 80 floggings and giving up any profits from such activity.[49]

            The final codification of the laws under the Tang was created in 653. The Tang Code focuses on the preservation of harmony by the laws.  The Code reflect the harmony of five, in the five punishments, and incorporates the yin/yang distinctions.[50]  It has 501 articles, divided into twelve headings that are remarkably similar to our own codes: it begins with a set of definitions of the terms, then to security and administrative matters, then a set of laws dealing with substantive matters such as marriage, theft and murder. The final two chapters deal with implementing the penal system – how to manage arrests, as well as provisions and the conduct of a trial and imprisonment.[51] Additional sources of law beyond the Code were promulgated: administrative statutes (ling), regulations (ko), and ordinances (shih).[52] This allowed for greater flexibility in the administration of law because officials could apply local rules and the laws could be updated without the issuance of an entirely new code.

Although it went against Confucian ideals that everyone should be subject to the same moral code, under the Tang a system of privilege developed where the elite would be excepted from the severity of punishment imposed on everyone else. The Eight Deliberations, or “eight groups qualified for consideration,” (bayi) included the imperial family, their descendents and high-ranking officials and their families.  Persons in this group were accorded special privileges and lenient punishments.[53]

            Another characteristic of the Tang Code was the increased importance of filial piety. Although punishments generally were less severe, the scope of crimes for violations of filial piety, particularly with respect to proper observance of the authority of parents, was increased, along with the respective punishments, usually the death penalty.[54]

           

 The Mongolian Empire: Yuan (1264-1368)

The Sung Code (963) was basically an expanded version of the last Tang Code, so little in the laws changed between the promulgation of the Tang Code and the ascension of the Mongol Empire under Khublai Khan in 1264.  The Yuan dynasty operated without a written set of laws. Instead, the Yuan directed local governments to decide cases by precedent and decree. Important decisions were published and distributed within the bureaucracy as a reference called the “Government Statutes”.[55] The Yuan dynasty had by far the most complicated government structure. The general administration, the military and the “censorial surveillance” were all kept separate. The legal system was under the general administration, which had six layers of bureaucracy between the emperor and the individual. There were twelve “proto-provinces” which were divided into sixty “tao” or supervisory regions, and under them were 185 lu, or supervisory circuits.

 

Code Undermined: Ming (1368 - 1644)

Like other dynastic founders, Zhu Yuanzhang recognized the importance of implementing a legal code at the beginning of his rule, in part to distinguish his empire from the Mongols.  The Ming Code of 1368 was like the Tang Code in both form and content. The two later versions, issued in 1374 and 1397, also changed little from the Tang.  The Ming also preserved the Tang Code’s flexibility by supplemental sub statutes. [56] A substantial revision was made in 1585, under which women had increased protections and rights in marriage. .[57]

The Ming Code might have proved an efficient set of laws had not the Emperor immediately begun to undermine it with his own sudden declarations. Hung Wu, who reigned for the first 30 years of the Ming, responded to perceived internal threats with sudden and brutal action. Corruption within the palace was dealt with severely. An official who had taken a bribe was ordered killed by decapitation, after which “his head was spiked on a pole, and his corpse was skinned and stuffed with straw.”[58]  In one instance, he thought his Chief Counselor was responsible for a failed ambush and ordered anyone connected with the reported plot killed – some reports at the time indicate as many as 15,000 deaths resulted.[59] He was so rash that a story is recorded that government officials who appeared before him would say their final goodbyes to their family in the morning, in the likely event that they would be ordered executed by the emperor that day.

           

The Manchu: Qing (1644 – 1911)

The Qing codification of laws was made in 1740. Called the Great Qing (Daqing Lüli) it comprised 436 sections and 1800 sub-statutes.[60] Legal summaries and commentaries on the Great Qing were also developed. The Qing expanded the reliance on the local li-chia system, even tasking them with tax collection.  However, the Qing suffered from a problem with delegation of authority. The over-centralization of power, combined with the problems it encountered in its relations with the West, led to its downfall, and the end of two centuries of dynastic rule.

 

2.     The Structure of Imperial Government

Role of the Emperor

The emperor was the representative on earth of heaven, the Son of Heaven.  The Emperor’s right to rule, and responsibility to his people, was based on the Mandate of Heaven (tian ming).  This could not be abdicated and stayed with the Emperor until his death. It was passed on through the Emperor’s eldest son.  When a new dynasty was founded, the argument made by the new ruler was that the previous one had lost the Mandate of Heaven and it had been passed instead to the new Emperor.[61] This was not difficult for people to accept, since the dynasty could be taken over because it was weak.

Although he was somewhat hampered by the imperial bureaucratic system, all social, moral and legal authority culminated in the Emperor.[62]  During the latter part of the Ming and Qing, the power of execution was nominally reserved for the emperor only.  The divine basis for the emperor’s authority was the basis for the court’s extreme protocol.  Opening ceremonies where officials would show their deference to the emperor through elaborate rituals would often last for hours, and had to start before dawn in order for any imperial business to be done.  It was not all ritual based, however.  There was a great deal of substantive work do be done by the emperor. Records from the Ming dynasty reflect the first emperor of that dynasty, Hung Wu, dealt with 3,391 matters in 1,660 documents in a period of ten days.[63]

Confucian principles meant the imperial court was obligated to strictly adhere to their own rules. In the late 16th century, the emperor Wan-Li in the Ming dynasty was pressured to relieve a senior advisor of his post for failure to adhere to the strict rules of filial piety. Citing the duty he owed the emperor the official decided not to return to his home after his father’s death for the required 27-month mourning period. Despite the upheaval the official’s absence from the Forbidden Palace for over two years would cause, censure was heaped upon the official and even the emperor, who had implied that the administrator should stay. Even the enormous demands of running the empire was insufficient reason to bend the rigid rules of society: “The secret of administering an enormous empire such as ours was not to rely on law or the power to regulate and punish but to induce the younger generation to venerate the old, the women to obey the men folk, and the illiterate to follow the examples set by the learned.”[64] The rest of the country was watching, the officials argued, and the imperial court must demonstrate the highest standard of adherence to the laws, even at the cost of the efficient operation of the government.

 

A Confucian Meritocracy

The imperial bureaucracy, based on Confucian principles, prized development in the arts over skills in administration.  This did not necessarily make for an effective set of administrators: “One of the largest empires in the world was administered by a small group of men who, prior to their first assignment, had not the slightest training in administration, and who knew more about the poetry of a thousand years before than they did about tax law.”[65] They depended heavily on their staff, who were often local.[66] The magistrate employed four types of employees: clerks, runners, personal servants and private secretaries. Each group was not permitted to have contact with another, which resulted in a duplication of duties and inconsistent standards.

In the last dynastic period, private secretaries were usually divided into seven areas: law, tax administration, tax collection, registration of documents, correspondence, preparation of documents, and bookkeeping.[67]  Little in the literature, contemporary or academic, discusses the origins of the private secretaries.  They clearly needed to be literate and skilled in the magistrate’s duties, however if they had passed the imperial examinations, they would have become officials themselves. It would be logical then that the private secretaries were those people who had begun training for the imperial examinations but had either had to cease study (the process was very expensive) or had failed the exams. Although private secretaries were not permitted to take part in investigation, contemporary reports show they did exert some power.[68]

Shen Fu’s (1763 – ?) Six Records of a Floating Life describes his life as a private secretary at the beginning of the final century of imperial China.[69] Although he did sit for at least part of the imperial examinations to become an official, he either didn’t pass or didn’t have sufficient money to continue study.[70] Although much of the novel has to do with his relationship with his devoted wife Yuan, his description of his life sheds light on the operation of the legal system in the Qing.  Although he describes himself as poor, and is sometimes forced to supplement his income by selling paintings, his income when he has employment as a private secretary appears adequate. He refers to travel by sedan chair, and employs a servant at his home.

            Unfortunately, his references to the work itself are limited. In one situation, he describes meeting a man named Tsao, who is indebted to Fu for his assistance in difficulty over an arranged marriage. Tsao’s daughter had been promised to one family, but a wealthier man had then offered him more money if he would break off the engagement with the first family. Without going into detail, Fu explains that the situation had  resulted in legal proceedings and Fu was able to resolve the situation to Tsao’s satisfaction. It appears from this that the private secretaries had considerable influence over the outcome of a case, and that the parties to the case knew their identities and roles.  It would seem then that the work of the private secretary was not all in the back room, but may have actively participated in the adjudication in their role assisting the magistrate.

Ray Huang’s 1587, A Year of No Significance describes the life of Hai Jui, an official who eventually became the Censor-in-Chief in Nanking.[71] Hai is known for his strict adherence to Confucian principles of government, leading a simple, almost impoverished life, and rejecting the many opportunities presented for corruption to an imperial official. Hai left a significant written record of his correspondence and personal thoughts, which Huang reconstructs as a narrative of Hai Jui’s time as a magistrate.[72]

Hai believed firmly that the legal system should be used to enforce the balance of power in China’s social hierarchy: “I suggest that in returning verdicts to those cases it is better to rule against the younger brother rather than the older brother, against the nephew rather than the uncle, against the rich rather than the poor, and against the stubbornly cunning rather than against the clumsily honest.  If the case involves a property dispute, it is better to rule against a member of the gentry rather than the commoner so as to provide relief to the weaker side. But if the case has to do with courtesy and status, it is better to rule against the commoner rather than against the gentry: the purpose is to maintain our order and system.” Despite Hai’s personal integrity, the system he administered was out of touch with, and inapplicable to, a country with a vast agrarian peasant population.

The structure of local government organs did not keep pace with the changing nation. A lack of flexibility hampered the enforcement and applicability of the legal system.  The uniform application of laws was regarded as required, so regional differences in commercial and social customs were not taken into account. The same rigid standard was applied across the diverse empire. Between 1000 and 1800, the number of counties grew from 1,230 to 1,500. However, the changes in population meant that the number of people under a magistrate might be anywhere from 80,000 to over 250,000.[73] Especially during the Ming and Qing, the scale of government was not keeping pace with the local population, the government increasingly relied on existing power hierarchies at the village level to mediate disputes.[74] This local system was called the li-chia­. The best system for maintaining order, thereby prolonging the dynasty, was to use the system to enforce existing social structure.

 

3.     Operation of a Legal Case: “Out of ten reasons by which a magistrate may decide a case, nine are unknown to the public.”

As we have seen, the legal system operated as the codification of ethical and social norms.  The legal system was not involved in settling disputes between individuals, but in balancing out the harm done by individuals when they violated these norms by punishing them, and thus restoring order. It operates in a vertical system, the relationships it deals with are between individuals and the state.  The concept of “order,” of punishment as a means of setting right a cosmic imbalance, is central to the system. Criminal violence and moral impropriety caused a disruption of the social order, which in turn caused a disruption in the cosmic order. It was this disorder that the legal system was intended to correct. To the extent that the legal system is involved at all in civil matters, it is generally limited to property rights, inheritance and marriage. Although victims might sometimes be awards pecuniary damages, the resolutions were almost exclusively penal.

 

A.   Formal and informal dispute resolution at the local level.

From the Tang dynasty forward, the local legal system , the district or county (hsien)  operated in roughly the same way.  Although there might be local tax collectors or other local offices, the average Chinese person’s first level of interaction with the legal system was at the magistrate’s level. The magistrate was subject to the legal code of that dynasty and had little power to exercise personal judgment, except in manipulation of crimes or punishments by the use of analogy.[75] During the Western Han, Wei, Jin and Southern and Northern Dynasties, magistrates were encouraged to disregard the relevant statutes if a Confucian interpretation of the case would render a different result.[76]

There were no town councils or local government under the magistrate, however it would be a mistake to think that the local villages were run exclusively by the magistrate. The first instance of authority in a civil dispute was informal mediation with the village elders or local gentry.[77] Since China was a largely agrarian peasant society, the local communities were small enough that these authorities were clear. Most social disputes were resolved by the family or families concerned, with deference to the local gentry and village elders. Commercial disputes were resolved in the same way, and when trade guilds developed during the Tang, they also served that purpose.

The only tax a magistrate could use for local government was the local transport tax. Every other tax, including the highly lucrative salt tax, was collected and delivered to the next higher level of government. Absent any other means of funding the local government, fees were established at the district level. The collection of the transport tax and the administration of justice were the two most important duties of the magistrate.

 

B.    Suits – the adjudicatory process.

An individual would lodge a complaint against another, and it was taken completely out of their hands. It was up to the state whether or not the person would be prosecuted. We have an example of the preparations made in a case from 1228. A man was charged with “misappropriating” land from a school, and the director of the school brought a complaint. The law clerk put together a list of six sources of law that might apply: two instances from the official code (lu), one from an imperial edict (ch’ih), two from administrative statutes (ling) and one regulation (ko).

A defendant could not be punished unless they admitted to the charge, but it was permissible to use torture as a means of obtaining a confession.  The defendant would remain incarcerated, usually in a cell in the same location as the office, until the trial.  Having no prisoners or witnesses waiting in the cells was considered the sign of an efficient magistrate. Sometimes the magistrate would entrust the defendant to the care of his or her family, placing them under house arrest, so that the holding cell would be empty and the office appear efficient.[78]

Once a confession was taken, a clerk would write it up and ask the prisoner to sign it, or, if they were illiterate, to mark it with their finger. (Fingerprints were first used as a form of identification in the Tang dynasty and thumbprints have been found on clay seals from 2d century BC) The defendant could repudiate their confession at this time. There were reports of officials sometimes physically preventing prisoners from doing so by stuffing rags in their mouth.[79] 

 The entire process was run by the magistrate’s office, from investigation through trial and appeal.

The magistrate’s office was in charge of investigating the complaint, usually by interviewing witnesses, sometimes with a beating as added encouragement to tell the truth.[80] The extent of direct involvement by the magistrate himself depended on the size of the hsien.   Since the magistrate’s investigation was the primary fact-finding and no lawyers were used to advocate for different parties, the trial itself consisted mostly of a review of the facts and sentencing.   A defendant would be imprisoned during the investigation and the trial. After being decided, almost all cases were reviewed by the next highest administrative unit.[81]

            Appeals of capital crimes were supposed to be mandatory, although there is some indication that at the lowest levels of administration, the punishment would be carried out without notifying the higher administrative level. This may have been because the lengthy appeals process might cause the locals to lack faith in the legal system where the defendant had aroused antipathy. In non-capital cases, an appeal also reflected negatively on the magistrate, who would be subject to harsh criticism if his superiors found his administration of the case wanting.[82] Appeals of cases were further discouraged by incorporating beating of the appellant into the process.[83]

            The function of the legal secretary reached the highest level of sophistication during the Ming and Qing dynasties, when such officials were recognized for their particular expertise in the legal field.[84] Because there was no conception of judicial independence, and the interdependence of prosecution and judicial administration, there was no concept of a separate legal education. The only thing approaching a lawyer is a songshi, someone who may draft complaints, usually ex-clerks who had lost their position as low-level bureaucrats. The traditional Chinese legal system was supposed to be a truly objective system there would be no need for any party to have it’s own advocate. According to the Confucian approach, the magistrates and their staff were supposed to hold themselves to the highest standard and be impartial to either party, deciding the case only in the interests of the state. The official opinion was that there was no use for a songshi. Why argue with a system that will always make the right decision? The songshi were permitted to continue because the widespread illiteracy meant someone was needed to make written complaints.

Although eventually thousands of varieties of crimes would be compiled, there were ten general categories that were considered the most heinous of crimes. Referred to as the Ten Abominations (shi’e), they were first codified as such under the Sui and Tang codes, but had existed as a group before then. The Ten Abominations, which were all capital crimes, were: treason; failure of filial piety (which could include insolence); assault and battery or killing of a parent, grandparent, aunt, uncle, older brother or sister, in-law or parent of an in-law; and murder of more than two people from one family.

 

4.     Commercial Law

The earliest archeological records in China reflect trade with foreigners. Chinese silks reached India in the fourth or third century BC and trade with Korea dates even before that.[85] Throughout the imperial period, the Chinese legal system is remarkable in the extent to which it refused to deal with commercial disputes.  Merchants were looked down upon by Confucianists because they were motivated by profit. Legalists were not interested in private commercial activity because they did not believe it contributed to the power base of the government.[86]  Throughout the traditional China, private commerce was viewed with suspicion and often actively discouraged.  The state varied between laissez-faire policies and direct interference in certain industries by way of taxes and price-fixing. The government also occasionally stepped in to create a government monopoly, most often in salt, but also in iron and grain. The Tang and Han dynasties tried and failed to establish a government monopoly in liquor and the Tang also tried to do so with tea.[87]

The Qin and the Han dynasties both resisted any involvement in commerce.  Although the records of the Qin laws proscribe for the collection of taxes from trading, there does not appear to have been a system of regulation and enforcement of commercial transactions. The Han dynasty required that those who wanted to conduct foreign trade apply for a license, and the death penalty was invoked for those who did not obtain such a license.[88] Merchants were restricted in what they could wear and how they could travel and sometimes their families were barred from the bureaucratic examination process.[89]

The later dynasties took radically different approaches to commercial law.  During the Sung dynasty, government attempts to control foreign trade were largely through police and military presence at commercial centers and markets, however the code did not address commercial issues. Foreign trade flourished in the Tang dynasty and that Code was the first instance of commercial trade being discussed in the laws.[90]  “A provision of this code stated that disputes between foreigners of the same nationality should be determined by referring to their own customs and laws, and disputes between foreigners of different nationalities should be resolved under the code.”[91]  In a sudden reversal, the Ming dynasty banned foreign trade altogether. This ban continued into the Qing dynasty, leading eventually to the Opium Wars.  At the time of the fall of the dynasties, in 1911 the commercial trade laws were being revised.

The Qing prohibition of trade and absence of formal legal enforcement mechanisms encouraged the development of a private system. Since foreign trade was discouraged, many of the leaders in the sea trade were considered pirates, although by contemporary standards they might be considered entrepreneurs. Although some would overpower merchant vessels and take the cargo, some would instead act as arbitrators for a share of the cargo at issue. Enforcement was ensured by large “junk” style ships up to 100 feet long with a well-armed crew. Records indicate this “arbitration” was also frequently less than voluntary.[92]

Commercial transactions were hampered by high interest rates, due in part to the insecurity of the transactions and the high transactions costs. This was caused by problems with authentic currency and a lack of a secure, predictable method of resolving disputes.[93] The late imperial legal codes are silent on debts, mortgage and rent agreements, enforcement of contracts and other common business law problems. Although it was still possible to lodge a complaint with the magistrate against a business associate who had failed to pay, with corporal punishment the only likely remedy, the system was of little use except as a threat, or a last resort. In addition, the lack of predictability of the legal system made enforcement through other means more practical. Enforcement was left up to the local power base – the gentry landowners and wealthy merchants.

 

 

5.     The Legal System as a Reflection of Society: “To rule a family strictly should be the same as to rule a nation.”[94]

In the Chinese social system, the family or local authority structure should make the first attempt at resolving a dispute before resorting to the formal system: “social pressure as a substitute for justice was always exerted from the top down.”[95]

A.   Filial Piety

The head of the family unit, or tsu, was the family patriarch, the father or grandfather, although if the most senior member of the family was a woman, she might also take that role. A large or wealthy family would often develop their own set of written rules. If a family member violated these rules, he or she could be disciplined both within the family and by the official system. The role of the father in the household was akin to that of emperor and empire – his authority was supreme and final.[96]  Not surprising that the first character in the word father (fu) is based upon the earliest characters of a hand wielding a stick.[97]   Parental authority did not wane with age, a son was as much under his parents control at age forty as at four.  There are reports of the Emperor Wang Seng-pien of the Liang dynasty (502-557) was beaten by his mother even in his forties.[98]

A daughter became part of her husband’s family when she married and her primary allegiance would be to her in-laws, although she would still perform the required mourning for her parents when they died. As a general rule, wives could not divorce their husbands. However, husbands could divorce their wives for any number of reasons, including failure to bear a son, being jealous, failure to pay due respect to her in-laws or even for a physical handicap.[99]

            Under some dynasties a parent could even kill a disobedient child without criminal penalty.  Under all the dynastic codes, although it was permissive to the same degree to kill a daughter, only the killing of a son appears to have been treated seriously.[100] In the reports of cases from the Han dynasties, there are no records of fathers prosecuted for killing sons.[101]  It appears that cases of a father killing a son were simply not prosecuted if the magistrate considered the parent’s action a fitting punishment for unfilial behavior.  There are, however, several cases where the parents would order the son to commit suicide. The Han law recognized that the murder of a son was justified only where they had broken the rules of familial conduct, and accordingly, infanticide was illegal and could result in a capital conviction.

In the Tang and Song dynasties, however, the murder of a son was prohibited and often resulted in punishment. The degrees would be altered depending on the reason – if the son had been disobedient, less one degree than the punishment imposed for killing with intent (12 to 18 months for beating to death and 2 years if killed with a weapon). However along with the prohibition on murder of sons, the severity of punishments for failure to observe proper filial piety became much more severe. For example, the death penalty was proscribed for a couple who conceived a child during the mourning period for a parent, since chastity was considered a requirement of the respect to the recently deceased.

The decrease in popularity for permitting parents to kill their children was not because the importance of filial piety decreased but because of the notion that the emperor was the only human permitted to decide if someone should die.  Instead of killing their son or daughter themselves, the parent could seek permission from the office of the magistrate, who could grant it through the emperor’s authority if the parent could demonstrate the behavior in question was grounds for punishment.  Such infractions included not living with ones parents or grandparents, owning separate property from them and a variety of offenses relating to the failure to properly observe the death of a family member. In the Sung dynasty, such requests, when supported, were automatically granted.

From the Tang to the beginning of the Ming, the authority of the tsu did not necessarily extend to making decisions over life and death without consulting the official legal system. An incident from the Cheng family circa 13th or 14th century illustrates this:

A family member, Hsu Kung-chu was being brought to the magistrate’s office for punishment for committing incest with his niece. The tsu head recognized that the public nature of the official proceedings would bring shame upon the family, so he ordered Kung-chu to be thrown in the river where he drowned. However, the tsu head was punished by the authorities for murder.[102]

 

In a contrasting case from the same period, a different result is reached:

“Wang ch’i’s eldest son, Wang ch’ao-tung hated his younger brother.  At one time, the former chased the latter, knife in hand. The father caught Wang ch’ao-tung, tied his hands together and scolded him. The son answered back. This so angered Wang Ch’i that he buried his son alive.  He was sentenced by the General of Chi-lin for killing his son inhumanely after the son had disobeyed instructions. But the Minister of Justice held that since a son who scolded his father was punishable by death, the case should not be considered under the article that dealt with a child who was killed because he had disobeyed instructions. As a result, Wang Ch’i went unpunished.”[103]

 

            In later dynasties of the Yuan, Ming and Qing, parents had more leeway in punishing an unfilial child.  Daughters whose behavior “brought shame upon her ancestors” could also be killed without the parents being punished. The killing of a son or daughter was only considered a crime when the means were unusually cruel, and then the punishment was only a minor beating, or a fine in the latter part of the Qing. To avoid prosecution, a parent might also order their child to commit suicide. In contrast, infanticide was a serious crime and was treated as an ordinary homicide that could be capital.

An incident from Six Records sheds additional light on the control of the parent over the adult child in the Qing dynasty.  Fu’s father is angry with Yuan because he thinks she is corresponding with a “sing song girl.”[104]  His father writes to him, threatening to have him executed for filial impiety: “Your wife does not behave as a woman should, swearing sisterhood with a sing-song girl. Nor do you think to learn from your elders, running around with riff-raff. I cannot bear to send you to the execution ground, but I will give you only three days. Make plans to leave home, and make them quickly. If you take longer, you will lose your head for disobedience!”[105] Fu makes immediately makes plans to stay with a friend, and he and Yuan leave in the middle of the night. In the end, it takes two years for his father to get over his anger and invite them back to the family home. There are several interesting aspects to this incident. The husband is responsible for his wife’s behavior; that associating with people of different social stature can be considered an act of disobedience. When this incident occurs, Fu is thirty-seven and already has two teenaged children at this time and has to marry the daughter off in a hurry to escape his father’s wrath.

 

B.    Rationale Behind Punishments

 

            The purpose of punishment was to restore the imbalance in cosmic harmony that had occurred as a result of the misdeed, so repentance was irrelevant because a punishment should be equal in severity to the crime and regret does not minimize this disharmony caused. The five punishments (wu xing) also had a cosmic link because of the importance of the number five, which is tied to the five elements. Since punishments were typically severe and corporal, they also had the practical effect of deterrence. This helps explain why there was a great deal of internal enforcement within families.  

The earliest societies of the Xia, Chang and Zhou had a much more severe set of punishments than the later imperial system. They were tattooing, amputation of the nose, amputation of one or both feet, castration and a variety of exotic and gruesome methods of causing death.[106]  The Five Punishments adopted during the Sui and Tang systems seem mild by comparison: i) beating with a light stick; ii) beating with a heavy stick of between 50 and 100 blows; iii) penal servitude usually between one and three years; iv) life exile – depending on district varies in punishment; and vi) death – strangulation and decapitation.[107]

Punishing crimes with hard labor served the empire well. The remarkable Chinese infrastructure of roads, walls, bridges and canals that supported the empire was constructed largely by forced labor.[108] Even the length of service, usually from one to three years, worked well. The time served was long enough to be a serious deterrent, it was long enough that the person to put in a solid amount of work.  However with the end in sight, they would not be desperate enough to commit suicide or attempt escape because they would only have a few years to work before they could return home.

However, when officials or nobles were punished the sentence was often commuted to a large fine, which was far more useful to the empire than the ridiculous vision of a pampered imperial official trying to work on a road. Unfortunately, we do not have an adequate record of the typical fines, so it is difficult to tell exactly how harsh the punishment was, or how much revenue might have been generated by the collection of fines from disgraced officials.

 

C. Incentives – why sue?

            With no rewards, a rewards or money damages given only rarely, the legal system appears to offer little incentive to report a crime. In addition, often the Complainant as well as the Defendant were punished for bringing the case in the first place. The person bringing the complaint was often subject to a beating for the failure to be able to resolve the dispute amongst themselves. Resorting to the imperial system of justice was viewed by the officials as an admission of failure by the person bringing the complaint.[109]

1.     Reputation for Enforcement

            The enforcement mechanisms were exclusively public.  The complaining party relinquishes control over the case once it is submitted to the magistrate.  Since the complaining party could not reasonably expect to receive any damages, there was nothing for them to enforce. However, there is also an argument that the imperial legal system was itself an enforcement mechanism for private dispute resolution.  If the parties had tried to resolve their conflict using the local informal measures and failed, submitting a complaint was its own enforcement. Even if a person was found not to have committed a crime, the process was both financially and physically draining, since few accused escaped without at least a beating. Having submitted complaints in the past increased the value of a person’s threats to resort to the formal legal system.  Punishing someone could be a partial restoration of honor, which could be commercially valuable in a society where personal dignity was reflected by the character of those you conduct business with.

2.     Importance of Honor

The stigma of being “had” might be another incentive to use the formal legal system in a society where the concept of personal honor is so highly valued.  In some cases, the goal of punishing someone became more important than life itself. Since driving someone to commit suicide was a criminal offense, taking one’s own life, clearly indicating who had driven you to do so, was a way to extract vengeance from beyond the grave.[110] In addition to losing one’s own life, the traditional Chinese belief was that a person who had committed suicide could not rest in the afterlife.

            Public enforcement could backfire, however, when the stigma of the crime extended beyond the person to the family.  As we saw from the incident on page 24, having a family member whose crimes are aired before the magistrate was considered to bring shame upon the whole family. The actions of each individual are so closely tied to the honor of the family that it was worthwhile trying to resolve minor incidents within the family before resorting to the official system.

 

6.     Corruption in “The Plum in the Golden Vase”[111]

The novel “The Plum in the Golden Vase” was published anonymously around 1618 but takes place in the declining years of the Sung Dynasty (960-1279).[112] The novel chronicles the escapades of the wealthy and corrupt merchant His-men Ch’ing.  There are two significant interactions with the legal system in which Ch’ing manipulates the legal process to his advantage by taking advantage of corrupt officials.

a. The Death of Wu the Elder

            Hsi-men Ching, whose wealth is exceeded only by his unceasing appetite for women, begins an affair with P’an Chin-lien, the wife of Wu the Elder. When her husband discovers the affair the two lovers plot to poison him with the help of Dame Wu, the next-door neighbor who has been hosting the illicit assignations. After Chin-lien administers the poison, the coroner is called to administer to the body and “nail the coffin,” an official means of sealing the death as accidental. Ching bribes the coroner to declare the death accidental when it clearly isn’t.[113]  Some months later, the dead man’s brother, Wu the Second, returns home and hears of the suspicious circumstances of his brother’s death.

            Wu the Second arranges to meet a witness, who he has asked to “be prepared to testify,” outside the magistrate’s office. He then engages a scribe, Master Ch’en, to draft a complaint to submit to the magistrate. This is Master Ch’en’s only appearance in the novel.  Since Wu has presumably had little interaction with the legal system, Master Ch’en presumably has some input into content as well as form, but there is no mention of any advice given to Wu on his case. Wu proceeds directly from the scribe’s office to the magistrate, where he presents his written complaint and engages in a brief discussion with the official: “Taking (the witness) along with him, he went straight into the courtroom, knelt down, and began loudly to complain of a case of injustice.”[114]  He engages in a brief discussion with the magistrate, who takes the witness’s “verbal deposition,” and withdraws to discuss the case with his secretaries. It would seem then that the entire process of filing a complaint could take place in a day and that the officials were generally available to discuss the filing of a complaint.

            Unfortunately for Wu, Ch’ing hears that a complaint implicating him has been made and he sends a servant to the magistrate’s office to bribe the clerks. When the magistrate submits the complaint to his clerks for discussion, they convince him that it is far too difficult to take on a strong force in the community like Ching.  The magistrate berates Wu for having brought a charge he cannot prove:

“It has always been true that:

To prove adultery, you must nab both parties;

To prove theft, you must produce loot;

To prove homicide, you must find the wound.”

 

The witness is detained while the magistrate considers whether to bring charges against the powerful Ch’ing.  In the meantime, Ch’ing sends another bribe for the officials, including the magistrate. The next day, Wu returns to hear whether the magistrate will charge Ch’ing and his lover Chin-lien. The magistrate warns Wu in general terms of making rash accusations, particularly against someone as powerful as Ch’ing. Another official, referred to as the “docket officer,” tells Wu he has not met the requirements for the case: “In any case involving an accusation of homicide, there are five prerequisites that must be possessed by the prosecutor before he can proceed to trial: the corpse of the victim, the wound, the medical cause of death, the weapon, and evidence that implicates the accused.”[115] Although Wu is angry that the court will not take action, he says only, “…you must have your reasons.”

 

Wu, angry that he has not been able to get satisfaction from the justice system, goes out in a rage to find Ching. Ching is drinking with a character named Li Wai-ch’uan. “This man played the role of influence peddler in both the district and the prefecture, intervening in public business on people’s behalf, and keeping his ear to the ground as he ran back and forth, for a fee.  If two parties were engaged in a lawsuit, he would peddle his services as a conduit of confidential information. Or if anyone wished to offer a bribe to the officials or functionaries, he would take a cut from both sides. For this reason he was knows around the district yamen as Leaky Li.”[116] When Ching hears that Wu is coming to confront him, he escapes out the back, leaving Wai-ch’uan at the table. Wu demands to know where Ch’ing is and when Wai-ch’uan hesitates, throws him out the window, and, upon exiting, deals him a final kick that kills him.  Wu is arrested, charged with murder and sentenced to death by strangulation.  He is immediately arrested and brought before the same corrupt official who refused his complaint against Ch’ing. The corrupt officials sentence Wu to death by strangulation. Since it is a capital case, they are required to submit a report to the higher office. The report briefly summarizes the “facts” of the case. They invent a story that Wu was angry because his Li owed him money and killed him in a rage when Li was unable to repay him.  The report describes the procedures followed: “Depositions were taken, bond was posted for the witnesses, and the inquest report form was duly filled out and submitted.” It goes on to quote the penal code which proscribes death by strangulation as the sentence for “involuntary manslaughter.”  Five officials sign the report: the District Magistrate, the Vice-Magistrate, the Assistant Magistrate, the Docket Officer and a clerk from the Office of Punishment.[117]

            Wu, the original victim of Ching’s corruption, has himself become a victim of the legal system. Although he did commit homicide, the story is clearly written in a way sympathetic to Wu, and showing how the corruption of the system has allowed the guilty to go unpunished.  Fortunately for Wu, the official who reads the report is “an official of absolute integrity.”  He believes Wu’s version of events and transfers the conviction to a lesser sentence that carries only exile as a punishment.

            Although this episode would appear to demonstrate that the system was corrupt and did not operate successfully, Wu is clearly the protagonist here, and in the end everything turns out alright for him. He eventually returns from exile and extracts revenge for his brother’s murder by killing P’an Chin-lien.

Wu does not escape punishment altogether since he did kill Li. Although painted as an unsavory character, his murder nevertheless deserves some punishment. In addition, only the lowest level of officials are dishonest. The higher official who recognizes the truth of Wu’s story observes: “That district magistrate of yours doesn’t deserve to be in office. How can he have put justice up for sale so flagrantly?”[118] Even when his initial complaint against Ch’ing is thrown out, Wu is deferent to the judgment of the officials.

 

b. The False Contract with Chiang Chu-shan

            Another of Chiang’s extra-marital assignations gets him involved in the legal system, again as the manipulator from outside, controlling the events by bribes. Angry that a former lover has married, he plots revenge against her new husband, Chiang Chu-shan. Chu-shan operates a shop and is kind of a mix between a pharmacist and physician. Ch’ing bribes two locals to lodge a complaint against him for failure to repay a debt.  They go to his shop and accuse him of having borrowed thirty taels from one of them.[119]  Chu-shan angrily disputes that he ever borrowed money, pointing out that “there would have been a contract and a guarantor.”[120] When they persist in telling him he owes them money Chu-shan threatens, “I can’t take any more of this! I’ll go to court with him…”[121] But it is Chu-shan who is arrested, and Ch’ing sends “a personal note about the case” to the Judicial Commissioner. The two men Ch’ing has hired provide false testimony that Chu-shan borrowed the money and provide a contract, which purports to bind Chu-shan for the debt. The Commissioner orders Chu-shan to be flogged and to repay the debt: “Two runners were then dispatched to escort Chiang Chu-shan to his place of residence, and a bench warrant was issued authorizing the requisition of thirty taels of silver with which to make restitution to Lu Hua; failing which, the prisoner was to be remanded to the yamen for further detention.”[122] Although he obtains the money from his wife, she is disgusted with him and leaves him to become a concubine in Ch’ing house after all.  Ch’ing rewards the two men who provided false testimony with the amount that they accused Chu-shan of borrowing.

Although Chu-shan is a pathetic character, his story is told in a way that makes him appear sympathetic because he is abused to such a great degree.  Although the text refers to Ch’ing “sending a note” to the Judicial Commissioner, the operation of the case itself indicates bribery may not have been necessary to bring a false claim against someone. Chu-shan’s accusers have only a false document, with no mention of signature or print by Chu-shan, and the testimony of both of them against Chu-shan. It seems the system was not difficult to manipulate with false testimony, and bribing the officials may not have been necessary to have an innocent person convicted.

 

            The records left by those operating and observing the legal system reflect a system that can be contradictory and corrupt. Yet the efficiency of its operation, and its multiple checks against injustice, particularly against unnecessary or unjustified executions, is remarkable. The consistency of the content of the Codes from the Tang to the end of the Qing, as well as the operation of the same basic structure for almost a thousand years, is unprecedented among the other systems we studied.  To appreciate the operation of the imperial Chinese legal system, we must turn our own ideas about the goals of a legal system inside out. We are accustomed to using a legal system to enforce our individual rights – a civil suit in contract or punishment for a crime. Our laws are designed, ostensibly, to serve the rights of the individual, even where it conflicts with the power of the state.  The protection of individual rights is not the goal in Chinese law, the preservation of order, and therefore the state, is the ultimate objective. As a method of preserving a vast empire, and the continuation of a traditional set of societal norms, the imperial Chinese legal system was an amazing success.

 

 

 


APPENDIX

Extent of Qin Dynasty

Extent of Han Dynasty

 

 

 

 

 

 

 

 

 

Imprint of Yuan Government Statutes, 1320-1322


 



[1] The quotes that accompany the section title are traditional Chinese proverbs about the law.

[2] Hucker, Charles O. China’s Imperial Past Stanford University Press, Stanford © 1975, p . 70

[3] A note on romanization: There have been two methods of converting Chinese characters to Roman letters; Wade-Giles and pinyin. Pinyin is the more modern version – it is used by the U.S. government, the UN and the PRC. However, many of the materials I used in the paper used the Wade-Giles romanization. Where I have been confident in using the pinyin instead, I have made that substitution. In cases where I was unable to make a precise conversion to pinyin, I have made a notation accordingly. The Library of Congress has an excellent website devoted to conversion of romanized Chinese characters from Wade-Giles to pinyin. http://www.loc.gov/catdir/pinyin/difference.html

[4] Taoism was founded by Lao Tze (b. 640 BC), who according to legend was a historian/archivist in the Zhou dynasty. As the dynasty’s power waned, Lao Tze decided to leave the province and traveled West out of the boundaries of the empire. The guard at the province gate impressed by Lao Tze’s great wisdom, begged him to record the dogma he expounded. The volumes he left are called the Tao and Te. Tao is the “origin of all things” which regulates nature and is the source of universal harmony, the balance of Yin and Yang. Tao was adopted in 440BC as the official state religion. The importance of Tao is reflected in the supernatural beliefs that underlie many of the social customs.

[5] John W. Head, Codes, Cultures, Chaos and Champions: Features of Legal Codification Experiences in China, Europe, and North America, 13 Duke J. of Comp. & Int’l L. 1 (p. 10)

[6] Li is literally translated as “ritual.”

[7] Head, p.11

[8] Hucker, p. 77

[9] Only the Analects contains the original teaching of Confucius, and they are given to us with little context.

[10] Chen, Albert HY Legal System of the People’s Republic of China (Chapter 2: The Legal History of Traditional China)  © 1992 Butterworths Singapore. p. 9

[11] ibid, pp. 9-10

[12] ibid, pp. 10-11

[13] ibid, p. 10, 13

[14] ibid, p. 9

[15] ibid

[16] Bodde, Derek and Morris, Clarence (pp. 91-208) Basic Concepts of Chinese Law. Chapter 10 in Traditional China © 1970, Prentice-Hall, Inc. Englewood Cliffs, N.J. pp. 103-105

[17] Chen, p. 8

[18] Head, p. 16

[19] Hucker, p. 93

[20] Hucker, p. 94

[21] Chu, Tong-Tsu Law and Society in Traditional China © 1961 Mouton & Co. p.11

[22] Head, p. 32

[23] In Wade-Giles, “Chou.”

[24] Chen, p.8

[25] Bodde, p. 97

[26] Chen, p. 8

[27] In Wade-Giles, “Chin.”

[28] Head, p. 14

[29] ibid, p. 14 Unfortunately, the full text of these documents has not been translated into English.

[30] ibid, p. 10

[31] ibid, p. 13

[32] Although Qin Xioagong ruled the Qin state, he was not an emperor – his title was akin to “Duke.” The first Qin emperor was Qin Shi Huangdi (259-210 BC), formerly King of the Qin state (where his name was Ying Zheng). He is widely regarded as the first emperor of a centralized China. His reign lasted from 246-210 BC. His refusal to acknowledge his own mortality and lack of succession planning led to the total breakdown of the empire after his sudden death.

[33] Head, p. 13

[34] Mao Zedong would express admiration for Shang’s reforms, which were based on allocation of land by the state to soldiers and officials who had performed their services well.  Previously, the land was allocated as tenancies by the local nobility.

[35] Head, p. 13 The anti-Confucian efforts were prompted by a Confucian scholar’s criticism of the emperor’s reforms in land allocation.  The Emperor was outraged that a bureaucrat would have the audacity to question the Emperor, which Confucianists believed was the official’s duty. The Emperor was determined to rid his administration, and indeed the country, of Confucianists and gave the Legalist scholars the encouragement they needed to rid themselves of their enemies.

[36] See Appendix for maps comparing the size of the Qin and Han dynasties.

[37] Trade and law in early Chinese history, p. 13

[38] Chen, p. 9

[39] The other is Hongwu (1327-1398), first Emperor of the Ming Dynasty, who ruled from 1368 to 1398.  Gaozu was known before his ascension as Liu Bang. Head, p. 17

[40] ibid, p. 18

[41] “Culture and Talent: Recruiting Talent to Rejuvenate the Han Dynasty” Huo Jianying December 2001 China Today. http://www.chinavoc.com/history/xihan/talent.htm

[42] Only fragments of the Han Code remain. The rest we know of the Han laws is from scholarly writings about cases from that period.

[43] Head, p. 19

[44] ibid, p. 27

[45] ibid, p. 19

[46] p. 165

[47] Chen, p. 12

[48] Head, p. 26

[49] Liu, Lawrence S. “Fostering Competition Law and Policy: A Faćade of Taiwan’s Political Economy” 1 Washington University Global Studies Review 83 {vol. 1:77}

[50] Head, p. 28

[51] The titles of the twelve chapters are: 1. Terms and principles; 2. Prohibitions concerning security of the imperial palace; 3. Administrative regulations; 4. Family and marriage; 5. State stables and treasuries; 6. Coercive treatment of others; 7. Violence and theft; 8. Conflicts and contentions; 9. Deceptions and frauds; 10. Miscellaneous statutes; 11. Arrests and escapes; and 12. Trial and imprisonment

[52] Myazaki, Ichisada, “The Administration of Justice During the Sung Dynasty” from Essays on China’s Legal Tradition 1980 Princeton University Press, p. 57

[53] Chen, pp. 15-16

[54] Hucker pp.164-165

[55] See illustration in Appendix.

[56] Miyazaki, p. 57

[57] Head, p. 33

[58] ibid, p. 34

[59] ibid.

[60] Chen, p. 12

[61] The Mandate of Heaven was not tied to ethnicity – the Manchu and Mongol rulers incorporated the belief into their basis of power as well.

[62] Chen, p. 17

[63] Perhaps his excessive workload explains his bad temper!

[64] Huang, p. 22

[65] Shen Fu, Six Records of a Floating Life, trans. By Leonard Pratt and Chiang Su-hui. © 1983, Penguin Books, from the Introduction, p. 11

[66] Officials were not permitted to serve in their home area, for fear of corruption.

[67] Introduction to Six Records, p. 11

[68] Chu, T’ung-tsu “The Local Gentry in China Before Modernization” from Traditional China

[69] Unfortunately, we only have four of the “floating records” because two are missing and have never been found. There is no record of Shen Fu’s life after the publication of the book.

[70] Chronology in Six Records, p. 16

[71] Huang, Ray 1587, A Year of No Significance © 1986 Yale University Press, London and New Haven  Although Huang’s book is modern, I am incorporating the discussion of Hai Jui because there a copious records of that official’s life, including his own writings on his duties as a magistrate. Since Huang’s writing is based on those contemporary writings, I am confident enough that they reflect an accurate portrait of the operation of the system to be included.

[72] In November of 1965, a play based on his life, entitled “The Dismissal of Hai Jui” portrayed him as a loyal Confucian official betrayed by palace intrigue in his attempt to intercede on behalf of the peasants in a land dispute. Yao Wen-yuan, one of the notorious Gang of Four, wrote a criticism of the play in the Shanghai newspaper Wen Hui Pao, attacking the authors of the play as “modern revisionists” for painting an imperial official in a positive light. The publication of this criticism caused such a stir it has been called the catalyst for the Cultural Revolution.

 

[73] Chu, p. 311

[74] Chu, p. 310

[75] Although there was no code as such during the Yuan, the magistrate was expected to follow the Government Statutes, the compilation of edict and precedent as described in the section on the Yuan.

[76] Chen, p. 13

[77] Chen, p. 12

[78] The most detailed account of the operation of a case is during the Sung, because we have an account of the process from Li Yuan-pi, who published an account of his experiences as a magistrate in 1117. Miyazaki, pp.59-60

[79] ibid, p. 64

[80] Beating of witnesses was largely during the Qin and Han dynasties and was less common by the Tang, Ming and Qing, unless the witness had done something wrong themselves – for example, they were an eyewitness but they were drunk.

[81] Bodde, pp. 93-94

[82] Chen, p. 13

[83] ibid, p. 14

[84] ibid, p. 13

[85] ibid

[86] Chu, p. 186

[87] ibid, p. 191

[88] Mo, John, “Trade and Law in Early China” from A Brief History of International Commercial Law © 1997 Butterworths, Sydney, p. 14

[89] Chu, p. 187

[90] Mo, p. 14

[91] Trade and law in early China, p. 14

[92] Huang refers to the pirate arbitrators in his discussion of the 16th century battles with Japan, but to my great regret I could not find additional material on this interesting sub-set of commercial dispute resolution.

[93] The imperial government had attempted to use a separate currency to pay its own debts, but predictably this was not widely accepted, or was heavily discounted. The bronze coins the government eventually produced were easily counterfeited. The use of silver, verified as to weight and purity in each transaction, increased transaction costs. Huang, pp. 146-147. The currency problems were compounded by the holding of physical capital, with restricted currency on the market, credit for the peasants was limited.

[94] From the “Family Instructions of Yen” by Yen Chih-t’ui. as quoted in Chu, p. 21

[95] Huang, p. 149

[96] Chu, p. 20

[97] ibid, p. 20  fu4 qin1

[98] ibid, p. 21

[99] Chen, p. 17

[100] There are two obvious explanations for the lack of cases of parents killing daughters. First, the lower status of women meant a less serious crime had been committed, and second that since most daughters were married before they were 13 they were usually not in the household long enough to challenge the parental authority.

[101] Chu, p. 22

[102] Family and Tsu,  p. 39

[103] Chu, p. 24

[104] “Sing-song girls” were not prostitutes in that they were not paid for sex, but they were not strictly entertainers, either. They were generally looking for someone who would take them as a concubine.

[105] Six Records, p. 78

[106] Chen, p. 14

[107] Chu, p. 165

[108] Still a popular form of punishment in the PRC, enabling them to gain competitive advantage on certain manufactured products, particularly children’s toys.

[109] Chu, p. 165

[110] Huang, p. 150

[111] Trans. Roy, David Tod The Plum in The Golden Vase “Chin P’ing Mei tz’u hua,” © 1993 Princeton University Press, previously published as “The Golden Lotus.” The translation uses Wade-Giles romanization, which I have not changed to pinyin when referring to characters from the novel.

[112] Roy, Introduction, p. xxix

[113] The Coroner’s assistants point out that the deceased’s “face is purple, and there are tooth marks on his lips and signs of bleeding around his mouth” p. 115

[114] Roy, p. 181

[115] Roy, p. 183

[116] A yamen is a government office, usually at the lowest level of district (hsien).

[117] Roy, p. 192

[118] ibid. p. 192

[119] A tael is a silver ingot between 34 and 38 grams of silver, an unofficial form of currency. The value of a tael as compared to the official currency varied by time and province.

[120] The Plum in the Golden Vase, p. 387 A guarantor and contract is also referred to as a requirement for loans in Six Records.

[121] ibid.

[122] ibid. p. 390