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Traditional Chinese law refers to the laws, regulations and rules used in China up to 1911, when the last imperial dynasty fell. It has undergone continuous development since at least the 11th century BC. This legal tradition is distinct from the common law and civil law traditions of the West, and to a great extent, is contrary to the concepts of contemporary Chinese law. It incorporates elements of both Legalist and Confucian traditions of social order and governance. 1911 (MCMXI) was a common year starting on Sunday (click on link for calendar). ...
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This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...
Civil law is the predominant system of law in the world, with its origins in Roman law, and sets out a comprehensive system of rules, usually codified, that are applied and interpreted by judges. ...
For alternative meanings for The West in the United States, see the U.S. West and American West. ...
Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context. ...
Confucianism (儒家 Pinyin: rújiā The School of the Scholars), sometimes translated as the School of Literati, is an East Asian ethical, religious and philosophical system originally developed from the teachings of Confucius. ...
Two traditional Chinese terms approximate "law" in the modern sense. The first, fa (法), means primarily "norm" or "model". The second, lü (律), is usually rendered as "statute". It originally seems to have meant "standard pitchpipe", instruments used in Chinese cosmic magic.
History
Early development The laws of the aristocratic societies of early China put substantial emphasis on maintaining the distinct ranks and orders among the nobles, in addition to controlling the populace. As a result, li (禮), meaning ritual and etiquette, governed the conduct of the nobles whilst xing (刑), rules of punishment, governed the commoners and slaves. The early rulers of the Zhou Dynasty issued or enforced laws that already exemplified the values of a primogeniture regime, most notable of which is filial piety. The earliest document on law in China that is generally regarded as authentic is the Kang Gao (康誥), a set of instructions issued by King Wu of Zhou to a younger prince for the government of a fief. The Zhou Dynasty (Chinese: 周æœ; Hanyu Pinyin: ; Wade-Giles: chou chao; 11th century BC to 256 BC) followed the Shang (Yin) Dynasty and preceded the Qin Dynasty in China. ...
Filial piety is extended into the afterlife. ...
King Wu of Zhou (Chinese: 周武王; pinyin: ) or King Wu of Chou was the first sovereign of the Chinese Zhou Dynasty. ...
During the 6th century BC, several of the independent states into which the Zhou kingdom had fragmented codified their penal laws and inscribed them on bronze cauldrons. For example, at least two codifications from the state of Zheng survive, from 536 BC and 504 BC - the first on cauldrons and the second on bamboo. The codes of Wei, drafted by Li Kui, are also notable. Such codification was part of the process by which rulers attempted to make more effective the central administration of the state. They attracted criticism from orthodox statesmen, including Confucius, on the basis that they eroded the distinction between the "noble" and the "base". (2nd millennium BC - 1st millennium BC - 1st millennium) The 6th century BC started on January 1, 600 BC and ended on December 31, 501 BC. // Overview Monument 1, an Olmec colossal head at La Venta The 5th and 6th centuries BC were a time of empires, but more importantly, a...
Zheng (é„) was a Zhou city-state in the middle of ancient China, modern Henan Province. ...
Centuries: 7th century BC - 6th century BC - 5th century BC Decades: 580s BC - 570s BC - 560s BC - 550s BC - 540s BC - 530s BC - 520s BC - 510s BC - 500s BC - 490s BC - 480s BC Events and Trends 538 BC - Babylon occupied by Jews transported to Babylon are allowed to return to...
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The following details the state of Wei of the Warring States Period. ...
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Legalism and Qin In 221 BC, the state of Qin finally obtained supremacy over its rivals and founded the Qin Dynasty. One of the reasons for its success was the adoption, on the advice of Lord Shang Yang, of far-reaching penal and administrative codes in the 4th century BC. The laws imposed severe punishments for failure to comply with duties imposed by the state and on the whole punished all alike. During this stage, law was marked by a purely Legalist spirit, hostile to the moral values advocated by the Confucian school. Centuries: 4th century BC - 3rd century BC - 2nd century BC Decades: 270s BC 260s BC 250s BC 240s BC 230s BC - 220s BC - 210s BC 200s BC 190s BC 180s BC 170s BC Years: 226 BC 225 BC 224 BC 223 BC 222 BC - 221 BC - 220 BC 219 BC...
Qin or Chin (Wade-Giles) (秦), pronounced something like Shin, (778 BC-207 BC) was a state during the Spring and Autumn and Warring States Periods of China. ...
The Qin Dynasty (Chinese: 秦æœ; Pinyin: QÃn Cháo; Wade-Giles: Chin Chao) (221 BC - 206 BC) was preceded by the Zhou Dynasty and followed by the Han Dynasty in China. ...
Shang Yang (商鞅) (d. ...
(2nd millennium BC - 1st millennium BC - 1st millennium) The 4th century BC started on January 1, 400 BC and ended on December 31, 301 BC. // Overview Events Bust of Alexander the Great in the British Museum. ...
Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context. ...
The Legalist school, as represented by such thinkers as Han Fei Zi, insisted that the ruler must always rely on penal law and the imposition of heavy punishments as the main instrument of government. At the same time, moral considerations and social standing should be rigorously excluded. Another hallmark of Legalist thinking was that there should be equality before the law. On the question of legislative technique, the Legalists stressed that the rules enacted by the ruler for punishment of offences should be clear, intelligible to the ordinary people, and properly communicated to them. Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán Fēizǐ Wade-Giles: Han Fei-tzu Han Feizi 韓非子 (d. ...
Imperial law Legalism survived in a diluted form after the Han Dynasty succeeded the Qin. It was recognised that there was a need for complex penal and administrative codes that enabled the emperor to govern the country through a hierarchy of ministers and officials, all ultimately responsible to him. Imperial legal systems all retained the original Legalist insistence that the powers of officials be defined in detail and that punishments be prescribed for transgressions, whether inadvertent or not. Han law-makers took account of Confucian values and introduced rules designed to implement them. The Han Dynasty (Traditional Chinese: ; Simplified Chinese: ; Hanyu Pinyin: ; Wade-Giles: Han Chau; 206 BC–AD 220) followed the Qin Dynasty and preceded the Three Kingdoms in China. ...
This process continued throughout the Han and later dynasties, culminating in the Tang Dynasty. Ch'ü T'ung-tsu has shown that the "Confucianisation" of Chinese law was a slow process and that the amalgamation of the Confucian views of society with the law codes was completed only in the great Tang Code of CE 624. The code is regarded as a model of precision and clarity in terms of drafting and structure. To meet Wikipedias quality standards, this article or section may require cleanup. ...
The Tang Code (å”律) was the criminal or penal code established during the Tang Dynasty in China. ...
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The original Tang Code was promulgated in 624, by the founding Emperor (Gaozu) of the Tang Dynasty. It would become in modern times the earliest fully preserved legal code in the history of Chinese law. It was endowed with a commentary, known as Tanglu Shuyi, incorporated in 653, the fourth year of the reign of Perpetual Splendour, as part of the Tang Code of Perpetual Splendour.
The Tang Code was based on the Code of Northern Zhou (Bei Zhou Lu, 557-581), promulgated 89 years earlier in 564, which was in turn based on the earlier, less comprehensive and less elaborate Code of Cao Wei (Cao Wei Lu, 220-265) and the Code of Western Jin (Xi Jin Lu, 265-317) promulgated almost four centuries earlier in 268.
Confucian attitudes place low reliance on law and punishment for maintaining social order. Evidence of this can be found in the Aspiration (Zhi) section of the 200-volume Old Book on Tang (Jiu Tang Shu), a magnum opus of Tang historiography. The history classic was compiled under official supervision in 945 during the Late Jin Dynasty (Hou Jin, 936-946) of the era of Five Generations (Wudai, 907-960), some three centuries after the actual events. A single chapter on Punishment and Law (Xingfa) is placed last after seven chapters on Rites (Liyi), after which come four chapters on Music (Yinyue), three chapters on the Calendar (Li), two on Astronomy and Astrology (Tianwen), one on Physics (Wuheng), four on Geography (Dili), three on Hierarchy of Office (Zhiguan), one on Carriages and Costume (Yufu), two on Sutras and Books (Jingji), two on Commodities (Chihuo) and finally one single chapter on Punishment and Law, in that order.
The Confucian Code of Rites (Liji), not law, is expected to be the controlling document on civilised behaviour. In the Confucian world view, rule of law is applied only to those who have fallen beyond the bounds of civilised behaviour. Civilised people are expected to observe proper rites. Only social outcasts are expected to have their actions controlled by law. Thus the rule of law is considered a state of barbaric primitiveness, prior to achieving the civilised state of voluntary observation of proper rites. What is legal is not necessarily moral or just.
Under the supervision of Tang Confucian minister Fang Xuanling, 500 sections of ancient laws were compiled into 12 volumes in the Tang Code, titled:
Vol 1: Term and Examples (Mingli) Vol 2: Security and Forbiddance (Weijin) Vol 3: Office and Hierarchy (Zhizhi) Vol 4: Domestic Matters and Marriage (Huhun) Vol 5: Stables and Storage (Jiuku) Vol 6: Impeachment and Promotion (Shanxing) Vol 7: Thievery and Robbery (Zeidao) Vol 8: Contest and Litigation (Dousong) Vol 9: Deceit and Falsehood (Zhawei) Vol 10: Miscellaneous Regulation (Zalu) Vol 11: Arrest and Escape (Buwang) Vol 12: Judgment and Imprisonment (Duanyu)
The Tang Code lists five forms of corporal punishment: 1. Flogging (Chi) 2. Caning (Zhang) 3. Imprisonment (Tu) 4. Exile (Liu) 5. Death (Si)
Leniency is applied to Eight Considerations (Bayi): 1. Blood relation 2. Motive for the crime 3. Virtue of the culprit 4. Ability of the culprit 5. Past merits 6. Nobility status 7. Friendship 8. Diligent character
Confucianism in revised form (Neo-Confucianism) continued to be the state orthodoxy under the Song, Ming and Qing dynasties. This ensured that the Confucian foundations of the Tang code were retained, and in some respects they were even strengthened. By the Qing dynasty, however, the mass of legislation had increased to such an extent that it was doubtful even officials could adequately master the complex distinctions it came to contain. Neo-Confucianism (ç†å¸ Pinyin: LÇxué) is a term for a form of Confucianism that was primarily developed during the Song dynasty, but which can be traced back to Han Yu and Li Ao in the Tang dynasty. ...
The Song Dynasty (Chinese: ) was a ruling dynasty in China from 960-1279. ...
For other uses, see Ming. ...
The Qing Dynasty (Chinese: ; Pinyin: Qīng cháo; Wade-Giles: Ching chao; Manchu: daicing gurun), occasionally known as the Manchu Dynasty, is a Chinese term for the Empire of the Great Qing (Traditional Chinese: ; pinyin: dà qīngguó), founded by the Manchu clan Aisin Gioro, in what...
Varieties of law Traditional Chinese law can be divided into the "official" law and "unofficial law". The "official law" emanates from the authority of the emperor. The doctrine of separation of powers was unknown in China until the 20th century. In particular, judicial and administrative functions were performed by magistrates rather than by separate persons. The emperor delegated many of his administrative and judicial powers to his officials while reserving for himself the legislative function. The separation of powers (or trias politica, a term coined by French political, enlightenment thinker Montesquieu) is a model for the governance of democratic states. ...
(19th century - 20th century - 21st century - more centuries) Decades: 1900s 1910s 1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s As a means of recording the passage of time, the 20th century was that century which lasted from 1901–2000 in the sense of the Gregorian calendar (1900–1999...
A magistrate is a judicial officer. ...
Official law may itself be divided into two main components: penal law and administrative law. The former prescribed punishments for certain behaviour, and the latter defined the duties of the officials.
By contrast, "unofficial" law was the customary law of the people, rules that developed in localities or in merchant guilds for the handling of matters of common concern. Neither of the standard words for law - fa (法) or lü (律) - was ever applied to rules of this kind. In law, custom, or customary law consists of established patterns of behaviour that can be objectively verified within a particular social setting. ...
Of these varieties only penal law has been systematically studied by Western scholars. The complexity of the Chinese administrative system has made it difficult for Western students to acquire a general familiarity with the legal principles that govern it. The study of unofficial law has also been limited due in part to the fact that the data are contained in such a variety of source materials, most extremely difficult to access. The lack of access to source material gave earlier scholars, both Chinese and Western, the mistaken impression that Imperial China did not have a system of civil law.
Penal law The centrepiece of the penal law is the "code of punishments" issued by each dynasty at its inception. Although fragments of laws survive from the Qin and Han, the first surviving complete code was developed during the Sui Dynasty and completed by the Tang in 653. This code provided the model for all the later traditional penal codes. Only the Mongol Yuan Dynasty failed to issue a penal code, but the collections of legal materials from that dynasty still show the strong influence of the Tang code. The Sui Dynasty (Chinese: ; pinyin: suà cháo; 581-618) followed the Southern and Northern Dynasties and preceded the Tang Dynasty in China. ...
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Honorary guard of Mongolia. ...
The Yuan Dynasty (Chinese: ; pinyin: Yuáncháo; Mongolian: Dai Ön Yeke Mongghul Ulus) lasting officially from 1271 to 1368. ...
The penal codes contain only rules that prescribe punishments for specific offences, rules that define generally the allocation of punishment, or those that establish principles of interpretation. Each offence was allocated a specific punishment. The task of the magistrate was to identify the proper name of the offence disclosed by the facts. Determination of the correct punishment automatically followed.
The penal code was seen as indispensable part of government, yet punishments were still to be humane. The multilating punishments that had characterised earlier law were no longer used by the 8th century. The five regular punishments established by the Tang code were, in descending order of severity: death, life exile, penal servitude (forced labour), beating with a heavy stick, or beating with a light stick. They remained the regular punishments until the closing years of the Qing. (7th century — 8th century — 9th century — other centuries) Events The Iberian peninsula is taken by Arab and Berber Muslims, thus ending the Visigothic rule, and starting almost 8 centuries of Muslim presence there. ...
The penal codes were divided into a "General Principles" and a "Specific Offences" section. Each dynasty retained the same basic content, though the Ming and Qing codes introduced some variation in the classification of offences. The Tang and Song codes consisted of a number of articles (律), many of which were adopted, sometimes without alteration, by the Ming and Qing codes. Once the articles of the code had been established at the beginning of the dynasty, there was a reluctance on the part of the founding emperor or his successors to change them.
Consequently, to deal with the problem of changing circumstances, the Ming started the practice of adding substatutes (例) to the code. The practice grew extensively under the Qing, with the result that, by the end of the 19th century, the penal code had lost something of its internal coherence and become an unwieldy instrument. Substatutes tended to be more specific and detailed than articles. Explanatory commentaries were added to the penal codes. The most authoritative were those approved by the throne for inclusion in the code. These often themselves contained rules not found in the articles or substatutes. In cases where no ambiguous article or substatute could be invoked, previous decisions by the Board of Punishments might function as "precedents". Alternative meaning: Nineteenth Century (periodical) (18th century — 19th century — 20th century — more centuries) As a means of recording the passage of time, the 19th century was that century which lasted from 1801-1900 in the sense of the Gregorian calendar. ...
In law, a precedent or authority is a legal case establishing a principle or rule which a court may need to adopt when deciding subsequent cases with similar issues or facts. ...
Some rules in the penal codes, especially those relating to civil matters, were obsolete or not enforced. Jean Escarra, has suggested that the penal law as a whole was intended to function as a guide to model conduct and not as a set of enforceable rules. Whilst this view has largely been rejected, it is clear that many of the enforced rules on family relationships were retained on account of their symbolic value.
After the Han period, all rules of a code which were not lü were called ling (ordinances) and ge (rulings), sometimes shi (models), and often zhi (decrees).
Administrative law Administrative law was well developed in China very early - most of its basic framework being laid by the Qin Dynasty. In the administrative structure, the emperor was supreme and hence above the law. He could make the law, override existing laws, and upset administrative decisions taken in his name. Yet, although autocratic, the very existence of the complex bureaucratic machinery consistituted a check on his arbitrary exercise of power.
On occasion he might modify a capital sentence referred to him by the central judicial agencies for his approval, but he always did so with reference to the facts of the particular case and explained in his edict the reasons for the change he had made. Sometimes he would even accept a reomonstrance by his officials that the change was not proper and accept that he had to act in conformity with the existing law.
Civil law Customary law, dealt with what in the West is termed private law or civil law. In particular, it comprises rules governing matters of contract and property. In contrast with Western systems in which civil law preceded criminal law, in traditional Chinese law, the reverse was true. From the provisions of the penal code, magistrates could either derive principles of civil law either directly, if a matter was in stated in the penal code such as matters regarding such as that regarding debt and usury, dealings with land, the borrowing and pledging of property, and the sale of goods in markets, or indirectly reading into a criminal statute a basis for a private civil suit. To meet Wikipedias quality standards, this article or section may require cleanup. ...
In the common law, civil law refers to the area of law governing relations between private individuals. ...
A contract is a promise or an agreement made of a set of promises. ...
// Use of the term In common usage, property means ones own thing and refers to the relationship between individuals and the objects which they see as being their own to dispense with as they see fit. ...
For other uses, see Debt (disambiguation). ...
Usury (//, from the Medieval Latin usuria, interest or excessive interest, from Latin usura interest) was defined originally as charging a fee for the use of money. ...
Although the stereotypical view of Chinese magistrates was that they were reluctant to intervene as arbiters in any kind of civil dispute, more recent studies have argued that most of a magistrate's work involved the settlement of civil disputes. In this view, the reluctance of magistrates to take on case work had to do largely with the fact that the Chinese civil administration was small, and that the workload on magistrates was very large. Moreover, scholars in the early 21st century, such as Philip Huang, have argued that the traditional Chinese system of justice was fair, efficient, and frequently used in the settlement of disputes.
Procedure Suspects and criminals were arrested by the county police or the posthouse chiefs who were subordinate to the county chief of police. One important principle of traditional Chinese law was that a person could not be convicted of a crime without a confession. Because a confession was required for a conviction and sentence the use of torture was often used to elicit such a confession. A common tool was the bastinado, applied to the buttocks and thighs. A confession is where a suspect in a crime admits their guilt to the crime. ...
For other articles with similar names, see Torture (disambiguation). ...
Bastinado, originally, was a Spanish word for the act of caning in the literal sense of beating with a stick et cetera. ...
During the Qin and Han, local magistrates were fully authorised to apply the full scale of punishments, including the death penalty.
In principle all criminal cases, whatever their gravity, were heard first in the court of the district in which the facts occurred. The magistrate investigated the facts, determined guilt or innocence, and then proposed the sentence for the offence as prescribed by the code. Whenever a sentence of greater severity than a beating was applicable, it was necessary to forward the case to the next superior court in the hierarchy, that of the prefect, for rehearing. The prefect's decision was final only in cases of penal servitude. Cases of exile or death were automatically reviewed by the provincial governor. All homicide cases and all cases attracting the death sentence were sent to the capital for review by the highest judicial tribunal, the Board of Punishments. No sentence of death could be implemented, except in extreme circumstances, without express approval from the emperor himself.
Moral values and the law In contrast to the Legalists, the Confucian view of law was always centred on morality. Xun Zi, an early Confucian thinker, saw the necessity for legislation, but emphasised equally the importance of virtue on the part of the legislator and judiciary. There was a conviction that maintenance of the Confucian moral prescriptions through the apparatus of the state was essential for the preservation of a civilised society. Encouragement of the virtue of filial piety helped to strengthen the related duty of respect and submission to imperial authority. Xunzi Xún ZÇ (è€å, or Hsün Tzu c. ...
The codes signal their moral orientation by placing right at the beginning of the "General Principles" section a description of the offences known as the "Ten Abominations". These offences were regarded as the most abhorrent. As the official commentary of the Qing code states: "persons guilty of any of the Ten Abominations destroy human bonds (伦), rebel against Heaven (天), go against reason (理), and violate justice (义)." The Ten Abominations (åæ¶) were a list of offenses under traditional Chinese law which were regarded as the most abhorrent, and which threatened the well-being of civilized society. ...
Law-making and legal reasoning Where a new piece of legislation was being considered, care would be taken to assess its relationship to the existing law.
General characteristics Equality before law was never officially accepted as a legal principle and as a legal practice. For example, the system of exemption of eight categories or persons from criminal prosecution (ba yi) and the system of exemption from punishment by giving up official positions (guandang) are formally recognised legal device.
Unlike in the West, where secular and religious powers co-existed and fostered a tradition of plurality, the traditional Chinese legal system, as a tool of the sovereign, has never encountered strong counterparts, and therefore never tolerated the existence of any alien powers and legal rules other than those of the emperor. From a socio-cultural standpoint, however, it is interesting to note that while in the West, individuals have typically been intrinsically seen as linked to a single religious tradition (that is, a strong division traditionally existed between rival denominations, or between Christianity and Judaism), in Chinese culture, people have been able to simultaneously be adherents of Buddhism, Taoism, and Confucianism, or some combination of these. A plurality (or relative majority) is the largest share of something, which may or may not be a majority. ...
In contrast to many other peoples, the Chinese never attributed their laws to a divine lawgiver. The same is true for the rule which governed the whole of life, and which therefore might legitimately be called "laws"; no divine origin is found for li (rules of correct behaviour) either.
Further reading
General - Bodde, Derk, "Basic concepts of Chinese law: The genesis and evolution of legal thought in traditional China," Essays on Chinese civilisation, ed. Charles Le Blanc and Dorothy Borei. Princeton: Princeton University Press, 1981.
- Ch'ü T'ung-tsu, Law and society in traditional China. Paris and The Hague: Mouton, 1961.
- Escarra, Jean. Le droit chinois: Conception et evolution. Institutions legislatives et judicaires. Science et enseignement. Pekin: Henri Veitch, 1936.
- Huang, Philip, Civil Justice in China: Representation and Practice in the Qing Stanford, California, Stanford University Press, 1996.
Early Chinese law - Hulsewé, Anthony F. P. "The Legalist and the laws of Ch'in," Leyden studies in Sinology, ed. W. L. Idema. Leiden: E. J. Brill, 1981.
- Hulsewé, Anthony F. P. Remnants of Han Law. Vol. 1. Leiden: E.J. Brill, 1955
- Hulsewé, Anthony F. P. Remnants of Ch'in Law: An annotated translation of the Ch'in legal and administrative rules of the 3rd century B.C. discovered in Yünmeng Prefecture, Hu-pei Province in 1975. Vol. 1. Leiden: E.J. Brill, 1985
- Uchida Tomoo (內田智雄), Kanjo keishō shi (漢書刑法志). Kyoto: Dōshishia University, 1958.
Fiction - Van Gulik, Robert. Celebrated Cases of Judge Dee. New York: Dover Publications, 1976.
Robert van Gulik (August 9, 1910 - September 24, 1967) was a highly educated orientalist, diplomat and writer, best known for the Judge Dee mysteries. ...
See also In the religious sense, law can be thought of as the ordering principle of reality; knowledge as revealed by God defining and governing all human affairs. ...
To meet Wikipedias quality standards, this article or section may require cleanup. ...
The Law of China, for most of the history of China, was rooted in the Confucian philosophy of social control. ...
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