Many fundamental concepts of China’s traditional legal culture date as early as the Zhou dynasty (1027-770 BC). One of the principal ideas is that the ruler rules by virtue of mandate of Heaven, and society is governed in accordance with li, which translates as propriety, rituals and moral standards. Western scholars have often drawn equivalents with the concept of natural law in early modern West with li. In contrast to that, fa indicates approximately what in a Western context coincides with laws, but in the narrower connotation of criminal sanctions. These two concepts have often been played against each other throughout China’s intellectual history. On
146
the one hand, Confucius (551–479 BC) and his followers endorsed a government by li: they believed society could naturally be regulated by moral standards and generally did not need punishment. The way li applied depended on one’s position within society and family; the Confucian ideal of society was a hierarchical one, characterized by a paternalistic vision of the ruler and a very strong sense of family as the main unit of society.236 The
government of the state was not any different from ruling over a family: in both cases harmony was achieved through the observance of li. The conceptual fusion of family and state realm elevated moral cultivation to the rank of state law (Chen 2008: 12). Confucianists believed in the possibility of educating human beings and deemed education, rather than punishment, to be the key to maintaining social order. In this context, law applied only to those who had crossed the boundaries of civilized conduct, and was generally considered a primitive stage of humankind, prior to that of a voluntary observation of morals.
The other leading cultural reference in China’s legal tradition is legalism, a school of thought which developed during the Warring States period (475- 221 BC). On the opposite side of Confucianism, legalists conceived the man as immoral by nature: hence, they advocated a strict reliance on law and punishments as the government’s main instrument to achieve political order. The harmony of the social order was reached by notably cruel punishments which in legalists’ mind functioned as a deterrent against committing crimes.
237 While the legalist school had its highest influence during Qin dynasty
(221-207 BC), succeeding dynasties kept the legal system created under the
236 According to Confucius, five fundamental relations existed in human interaction: the relationship
of ruler and minister; father and son; husband and wife; elder and younger brother; friend and friend. While three of these already pertain to the realm of the family, the remaining two referred to the same family logic: a ruler was conceived as a father to its minister and the hierarchy between brothers would apply to friendly relationships (Chen 2008:12).
237 Depending on the gravity of crimes, the punishment could range from tattooing, beating with
sticks, amputation of various parts of the body to death by strangulation or death by slicing (Chen 2004: 16-17).
147
Qin while reforming some of its crueller features, in favour of rule based on Confucian values of ethical and moral persuasion. The influence of Confucianism on the administration of law, peaked during the Tang Dynasty (618-907 AC) with the Tang Code, which merged both Confucian and legalist principles in the law.238 Within this system, moral teaching remained
the most important means of social control in imperial China: law was considered “secondary and supplementary to morality”, written codes were mainly related to criminal matters, while civil disputes were normally determined through mediation led by leaders or elders (Chen 2004: 15). The legal system was primarily aimed at handling criminal cases and law was “indisputably a tool to serve the interests of the state” (Peerenboom 2002: 41). Even though the terms and details of the categories of legislation changed from dynasty to dynasty, for about two millennia imperial China was characterized by a stable system of codes which were kept up to date and enacted through sub-statutes, edicts, or were decreed by the emperor himself (Ibid: 36).
This situation changed in the late Qing period (XIX-XX century), in which the inability of the imperial dynastic system to maintain power both internally and externally prompted demands for reformation. The humiliating defeats of the Qing Dynasty by the British and Japanese empires239 shattered the millennia-long assumption of the superiority of the
Chinese civilization and shook the confidence of both rulers and subjects (Ibid: 43). As a response to the crisis and to consolidate power, the Qing government introduced a range of new measures to reform China’s legal
238 From a legalist perspective, the Code contained a very detailed matching of instances of crimes
and punishments so that justice would be administered equally, and so that justice officers would be mere executors of the emperor’s will. The Tang Code nonetheless considered the family and clans as the essential units of society; accordingly, it gave the highest importance to clans and family heads, according to the Confucian tradition.
239China was defeated by Great Britain in the First Opium War (1839–1842) and the Second Opium
War (1856–1860), both involving disputes over British trade in China and Chinese sovereignty. The wars forcibly curtailed China's isolation from the rest of the world and weakened the Qing Dynasty. China also lost control over Korea to Japan in the First Sino-Japanese War (1894–1895).
148
system drawing on the experiences of Western legal systems. At the beginning of the 1900s, the first constitution was drafted, modelled on German and Japanese statutes. The courts were also modernized and efforts towards a professionalization of the judges and a bar were pursued (Huang 2001 in Peerenboom 2002:43). The aim of the Qing government was to use Western knowledge and technology but maintain Chinese identity. Legal reforms were conceived as a tool to achieve the emperor’s aims and the emperor remained the source of laws.240 The slogan at the time was
“Chinese learning as the body, Western learning as a means” (zhongxueweiti,
xixueweiyong). Nevertheless, as the legal reform process mainly entailed
changes in black letter law, it soon fell apart as irreconcilable with the existing social structure (Wang and Zhang 1999: 8). After the 1911 deposition of the last Qing emperor, the Nationalist government guided by Sun Yatsen continued to pursue legal reforms and drafted a number of new laws drawing on Western codes. Nevertheless, legal reforms during the Republic period (1911-1949) did not establish themselves durably due to the recurrent economic and political crises as well as the government’s lack of political and military control over the country.