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Traditional Chinese law refers to the laws, regulations, and rules used in
China China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's List of countries and dependencies by population, most populous country, with a Population of China, population exceeding 1.4 billion, slig ...
up to 1911, when
the last The Last may refer to: *The Last (band) The Last is an American, Los Angeles-based, early pop/punk band, formed in 1976 by Joe Nolte with high school bandmates Vitus Matare and Dave Harbison. By 1978 the band included three brothers: Joe (guitar ...
imperial dynasty fell. It has undergone continuous development since at least the 11th century BCE. This legal tradition is distinct from the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
and civil law traditions of the
West West or Occident is one of the four cardinal directions or points of the compass. It is the opposite direction from east and is the direction in which the Sun sets on the Earth. Etymology The word "west" is a Germanic word passed into some ...
– as well as
Islamic law Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...
and
classical Hindu law Classical Hindu law is a category of Hindu law (dharma) in traditional Hinduism, taken to begin with the transmittance of the Vedas and ending in 1772 with the adoption of "A Plan for the Administration of Justice in Bengal" by the Bengal gover ...
– and to a great extent, is contrary to the concepts of contemporary
Chinese law Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches. For most of the history of China, its legal syste ...
. It incorporates elements of both
Legalist Legalist, Inc. is an investment firm that specializes in alternative assets in the private credit industry. Today the firm manages approximately $750 million across three separate strategies: litigation finance, bankruptcy ( debtor-in-possession ...
and
Confucian Confucianism, also known as Ruism or Ru classicism, is a system of thought and behavior originating in ancient China. Variously described as tradition, a philosophy, a religion, a humanistic or rationalistic religion, a way of governing, or ...
traditions of social order and governance. One feature of the traditional Chinese
criminal procedure Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail o ...
is that it was an
inquisitorial system An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
where the judge, usually the
district magistrate A District Collector-cum-District Magistrate (also known as Deputy Commissioner in some states) is an All India Service officer of the Indian Administrative Service (IAS) cadre who is responsible for ''land revenue collection'', ''canal revenu ...
, conducts the public investigation of a crime. This is comparable to the system used in civil law jurisdictions, but contrary to
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
which uses an
adversarial system The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to det ...
where the judge decides between attorneys representing the prosecution and defense. "The Chinese traditionally despised the role of advocate and saw such people as parasites who attempted to profit from the difficulties of others. The magistrate saw himself as someone seeking the truth, not a partisan for either side." Two traditional Chinese terms approximate "law" in the modern Western sense. The first, (), means primarily "norm" or "model". The second, (), is usually rendered as "statute".


History


Early development

Laws were developed by government officials to regulate ancient Chinese society. The laws of the aristocratic societies of early China put substantial emphasis on maintaining distinct ranks and orders amongst the nobles, in addition to controlling the populace. As a result, ''lǐ'' (禮), meaning "ritual" or "etiquette," governed the conduct of the nobles, whilst ''xíng'' (刑), the rules of punishment, governed the commoners and slaves. The early rulers of the
Zhou dynasty The Zhou dynasty ( ; Old Chinese ( B&S): *''tiw'') was a royal dynasty of China that followed the Shang dynasty. Having lasted 789 years, the Zhou dynasty was the longest dynastic regime in Chinese history. The military control of China by th ...
issued or enforced laws that already exemplified the values of a primogeniture regime, most notable of which is
filial piety In Confucianism, Chinese Buddhism, and Daoist ethics, filial piety (, ''xiào'') (Latin: pietas) is a virtue of respect for one's parents, elders, and ancestors. The Confucian '' Classic of Filial Piety'', thought to be written around the lat ...
. The earliest document on the law in China that is generally regarded as authentic is the ''
Kang Gao Kang may refer to: Places * Kang Kalan, Punjab * Kang District, Afghanistan * Kang, Botswana, a village * Kang County, Gansu, China * Kang, Isfahan, Iran, a village * Kang, Kerman, Iran, a village * Kang, Razavi Khorasan, Iran, a village * K ...
'' (康誥), a set of instructions issued by
King Wu of Zhou King Wu of Zhou () was the first king of the Zhou dynasty of ancient China. The chronology of his reign is disputed but is generally thought to have begun around 1046 BC and ended three years later in 1043 BC. King Wu's ancestral name was ...
to a younger prince for the government of a fief. The Kang Gao is a chapter of the
Book of Documents The ''Book of Documents'' (''Shūjīng'', earlier ''Shu King'') or ''Classic of History'', also known as the ''Shangshu'' (“Venerated Documents”), is one of the Five Classics of ancient Chinese literature. It is a collection of rhetoric ...
. 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. Additionally, other notable codes include the codes of
Wei Wei or WEI may refer to: States * Wey (state) (衛, 1040–209 BC), Wei in pinyin, but spelled Wey to distinguish from the bigger Wei of the Warring States * Wei (state) (魏, 403–225 BC), one of the seven major states of the Warring States per ...
, drafted by Li Kui. Such codification was part of the process by which rulers attempted to make the central administration of the state more effective. However, they attracted criticism from orthodox statesmen, including
Confucius Confucius ( ; zh, s=, p=Kǒng Fūzǐ, "Master Kǒng"; or commonly zh, s=, p=Kǒngzǐ, labels=no; – ) was a Chinese philosopher and politician of the Spring and Autumn period who is traditionally considered the paragon of Chinese sages. C ...
, on the basis that they eroded the distinction between the "noble" and the "base." The Five Punishments dated from this time.


Legalism and Qin

In 221 BC, the state of Qin finally obtained supremacy over its rivals and thus the
Qin dynasty The Qin dynasty ( ; zh, c=秦朝, p=Qín cháo, w=), or Ch'in dynasty in Wade–Giles romanization ( zh, c=, p=, w=Ch'in ch'ao), was the first dynasty of Imperial China. Named for its heartland in Qin state (modern Gansu and Shaanxi), ...
was founded. One of the reasons for its success was the adoption, on the advice of Lord
Shang Yang Shang Yang (; c. 390 – 338 BC), also known as Wei Yang () and originally surnamed Gongsun, was a Chinese jurist, philosopher, and politician.Antonio S. Cua (ed.), 2003, p. 362, ''Encyclopedia of Chinese Philosophy'"The fifth important legali ...
, 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 Legalist, Inc. is an investment firm that specializes in alternative assets in the private credit industry. Today the firm manages approximately $750 million across three separate strategies: litigation finance, bankruptcy ( debtor-in-possession ...
spirit, hostile to the moral values advocated by the Confucian school of thought. 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 the government. At the same time, moral considerations and social standing should be rigorously excluded. Another hallmark of Legalist thinking was that equality should be 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 and intelligible to the ordinary people, and they should be properly communicated to the populace. Multiple corporal punishments were implemented by the Qin, such as death by boiling, chariots, beating, and permanent mutilation in the form of tattooing and castration. People who committed crimes were also sentenced to hard labor for the state. Legalism survived in a diluted form after the
Han dynasty The Han dynasty (, ; ) was an Dynasties in Chinese history, imperial dynasty of China (202 BC – 9 AD, 25–220 AD), established by Emperor Gaozu of Han, Liu Bang (Emperor Gao) and ruled by the House of Liu. The dynasty was preceded by th ...
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 lawmakers took account of Confucian values and introduced rules designed to implement them. By 167 BC the law had changed so that castration was not used as a punishment itself; instead becoming an optional replacement for execution.


Tang Code

The Tang code saw the creation of what could be termed the first judiciary - mandarin officials who specialized in interpretation of law. Qualifications for this position required demonstration of the 3 Qis believed to produce a perfectly balanced individual: knowledge, demonstrated by study of legal scripture, wisdom and fairness demonstrated by many years of apprenticeship, and virility, demonstrated by physical fitness and sexual conquest. This process continued throughout the Han and later dynasties, culminating in the
Tang dynasty The Tang dynasty (, ; zh, t= ), or Tang Empire, was an Dynasties in Chinese history, imperial dynasty of China that ruled from 618 to 907 AD, with an Zhou dynasty (690–705), interregnum between 690 and 705. It was preceded by the Sui dyn ...
. 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 The ''Tang Code'' () was a penal code that was established and used during the Tang Dynasty in China. Supplemented by civil statutes and regulations, it became the basis for later dynastic codes not only in China but elsewhere in East Asia. The Cod ...
of CE 624. The code is regarded as a model of precision and clarity in terms of drafting and structure. 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 Fang Qiao (; 579 – 18 August 648), courtesy name Xuanling, better known as Fang Xuanling, posthumously known as Duke Wenzhao of Liang, was a Chinese statesman and writer who served as a chancellor under Emperor Taizong in the early Tang dynas ...
, 500 sections of ancient laws were compiled into 12 volumes in the Tang Code, titled: Vol 1: Terms 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 the five forms of corporal punishment for serfs as: # Flogging () # Caning () # Imprisonment () # Exile () # Death () Leniency is applied according to the
Eight Deliberations Eight Deliberations (), also translated as Eight Considerations, Eight Discussions, Eight Discussed Cases or Eight Precedents, was a set of principles used by traditional Chinese law in order to lessen legal punishment on the royals, nobles and me ...
: # Blood relation # Motive for the crime # Virtue of the culprit # Ability of the culprit # Past merits # Nobility status # Friendship # Diligent character Confucianism in its revised form (
Neo-Confucianism Neo-Confucianism (, often shortened to ''lǐxué'' 理學, literally "School of Principle") is a moral, ethical, and metaphysical Chinese philosophy influenced by Confucianism, and originated with Han Yu (768–824) and Li Ao (772–841) ...
) continued to be the state orthodoxy under the
Song A song is a musical composition intended to be performed by the human voice. This is often done at distinct and fixed pitches (melodies) using patterns of sound and silence. Songs contain various forms, such as those including the repetiti ...
,
Ming The Ming dynasty (), officially the Great Ming, was an imperial dynasty of China, ruling from 1368 to 1644 following the collapse of the Mongol-led Yuan dynasty. The Ming dynasty was the last orthodox dynasty of China ruled by the Han pe ...
and
Qing The Qing dynasty ( ), officially the Great Qing,, was a Manchu-led imperial dynasty of China and the last orthodox dynasty in Chinese history. It emerged from the Later Jin dynasty founded by the Jianzhou Jurchens, a Tungusic-speak ...
dynasties. This ensured that the Confucian foundations of the Tang code were retained, and in some respects they were even strengthened. By the time of the Qing dynasty however, the mass of legislation had increased to such an extent that it was doubtful whether even officials could adequately master the complex distinctions it came to contain.


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 Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typi ...
was unknown in China until the 20th century. In particular, judicial and administrative functions were performed by
magistrate The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judic ...
s 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. 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 A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...
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. 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 the
Kaihuang Code The Kaihuang Code () was a series of laws formulated in China at the time of Sui dynasty Emperor Wen of Sui (r. 581-604 CE). Containing twelve chapters with 500 provisions, the code reconfirmed the legal institutions of the Five Punishments, Eigh ...
developed during the
Sui dynasty The Sui dynasty (, ) was a short-lived imperial dynasty of China that lasted from 581 to 618. The Sui unified the Northern and Southern dynasties, thus ending the long period of division following the fall of the Western Jin dynasty, and la ...
and adopted by later dynasties including the Tang in 653. This code provided the model for all the later traditional penal codes through its definition of the Five Punishments and
Ten Abominations The Ten Abominations (十惡) 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. They are listed below. The first three were capital offences ...
. Only the
Mongol The Mongols ( mn, Монголчууд, , , ; ; russian: Монголы) are an East Asian ethnic group native to Mongolia, Inner Mongolia in China and the Buryatia Republic of the Russian Federation. The Mongols are the principal member ...
Yuan dynasty The Yuan dynasty (), officially the Great Yuan (; xng, , , literally "Great Yuan State"), was a Mongol-led imperial dynasty of China and a successor state to the Mongol Empire after its division. It was established by Kublai, the fif ...
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 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 rules, yet punishments were still to be humane. The mutilating 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. 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 code The Great Qing Legal Code (or Great Ching Legal Code), also known as the Qing Code (Ching Code) or, in Hong Kong law, as the ''Ta Tsing Leu Lee'' (大清律例), was the legal code of the Qing empire (1644–1912). The code was based on the Ming ...
s 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 "
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
s". 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 Zhou 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 constituted 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 remonstrance 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 A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...
, dealt with what in the West is termed
private law Private law is that part of a civil law legal system which is part of the '' jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ...
or civil law. In particular, it comprises rules governing matters of
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
and
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
. 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 stated in the penal code (such as matters regarding
debt Debt is an obligation that requires one party, the debtor, to pay money or other agreed-upon value to another party, the creditor. Debt is a deferred payment, or series of payments, which differentiates it from an immediate purchase. The ...
and
usury Usury () is the practice of making unethical or immoral monetary loans that unfairly enrich the lender. The term may be used in a moral sense—condemning taking advantage of others' misfortunes—or in a legal sense, where an interest rate is c ...
, 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. 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 (黃宗智), have argued that the traditional Chinese system of justice was fair, efficient, and frequently used in the settlement of disputes. Use of property was divided into topsoil ('' tianpi'') and subsoil ('' tiangu'') rights. Landlords with subsoil rights had a permanent claim to the property if they paid taxes and received official seals from the government, but did not have rights to actively use the land. Instead, those with topsoil rights paid the subsoil landlord a fixed rent (or part of the proceeds of what was produced on the land) for not only the right to farm and live on the land, but the right to independently sell or lease the topsoil rights to another party. So as long as another party held topsoil rights, the party holding subsoil did not have right to actively use the land or evict the topsoil owner. Land, like other forms of property, was seen as being held collectively by the family and not individuals within the family. Another concept in imperial Chinese property rights was ''dianmai'' (典賣/典卖), more commonly known as ''huomai'' (活賣/活卖), or conditional sales of property that allowed the seller (i.e., his family) to buy back the land at the original price (without interest). The assumption was that land, having been held by a family for generations, should stay with the same family. From the
Sui dynasty The Sui dynasty (, ) was a short-lived imperial dynasty of China that lasted from 581 to 618. The Sui unified the Northern and Southern dynasties, thus ending the long period of division following the fall of the Western Jin dynasty, and la ...
onwards, women could not hold property directly and, for land to stay in the same family, it had to pass between male heirs following the rule of
primogeniture Primogeniture ( ) is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relativ ...
.


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,
torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts ...
was often used to elicit such a confession. A common tool was the
bastinado Foot whipping, falanga/falaka or bastinado is a method of inflicting pain and humiliation by administering a beating on the soles of a person's bare feet. Unlike most types of flogging, it is meant more to be painful than to cause actual injury ...
, applied to the buttocks and thighs. 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 Xun Kuang (; BCE), better known as Xunzi (; ), was a Chinese philosopher of Confucianism who lived during the late Warring States period. After his predecessors Confucius and Mencius, Xunzi is often ranked as the third great Confucian philosop ...
, 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. 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 The Ten Abominations (十惡) 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. They are listed below. The first three were capital offences ...
". 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 (倫), rebel against Heaven (天), go against reason (理), and violate justice (義)."


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. Laws were made through the Government Officials then shown to the Emperor to get laws changed and made for people to obey.


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 pluralism, 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, 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. 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.


See also

*
Religious law Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas othe ...
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Comparative law Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
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Chinese law Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches. For most of the history of China, its legal syste ...
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List of ancient legal codes The legal code was a common feature of the legal systems of the ancient Middle East. Many of them are examples of cuneiform law. The Sumerian Code of Ur-Nammu (c. 2100–2050 BCE), then the Babylonian Code of Hammurabi (c. 1760 BCE), are amongst ...
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Great Qing Legal Code The Great Qing Legal Code (or Great Ching Legal Code), also known as the Qing Code (Ching Code) or, in Hong Kong law, as the ''Ta Tsing Leu Lee'' (大清律例), was the legal code of the Qing empire (1644–1912). The code was based on the Min ...
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Law of the People's Republic of China The Law of the People's Republic of China, officially referred to as the Socialist legal system with Chinese characteristics, is the legal regime of China, with the separate legal traditions and systems of mainland China, Hong Kong, and Macau. ...
* Law of Taiwan * Five Punishments *
Ten Abominations The Ten Abominations (十惡) 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. They are listed below. The first three were capital offences ...


References


Further reading

*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 évolution. Institutions législatives 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. *{{cite book, title=The Mandate of Heaven and The Great Ming Code (Asian Law Series), issue=Issue 21 of Asian law series, first=Yonglin, last=Jiang, year=2011, publisher=University of Washington Press, url=https://books.google.com/books?id=w68uObIhx9MC, isbn=978-0295990651, access-date=24 April 2014


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.


External links


Chinese Law CodesMain Codes of Ancient China
China China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's List of countries and dependencies by population, most populous country, with a Population of China, population exceeding 1.4 billion, slig ...
Legal history of China