China - A Legal History is published in three parts. You may return to Part 1 or Part 2.

Tang Code

The Tang Code (Tanlü Shuyi) developed during the dynasty of the same name, circa 624, and as substantially revised in a second edition which issued in 637 (legal historians disagree over the actual date of the Tang Code, some suggesting it was only published in 652).

The Tang Code, with some 502 articles of law, purported to fully reconcile traditional legal rules with the principles of Confucius.

The Code revised earlier existing Chinese codes and standardized procedures. For examples, there were only two ways to perform capital punishment on a convicted criminal: beheading or hanging.

The Tang Code influenced the law in many nations surrounding China and is the oldest legal code in the history of Chinese law of which a full copy has been found.

In 924, the Jiu Tang Shu (Old Book on Tang) was published of which but a small part spoke of law and punishment.

Between 1260 and 1360, China suffered occupation by the Mongols, and a Mongolian Emperor, starting with the grand-son of Genghis Khan, Kublai, and a period of time in their history that the Chinese call the Yuan Dynasty. The Mongols introduced their Yasak to the Chinese but little remained of it when the Chinese beat out the hated invaders in 1360.

The Ming Codes were a succession of  consolidations of the criminal law in China, developed during the Ming Dynasty of 1368-1644.

The Ming Code was Confucian through and through, instilling extreme social discipline. One example was the moral duty women had towards their husbands or grooms. Even if their fiancé died before they could be married, they were expected to remain chaste. The highest honours went to widows that took their own lives in those circumstances.

flag of ChinaQing Code

In 1644, Chinese law was again altered by the publication of the Qing Code, the last of the great law codes of the Chinese dynasties.

Over the years, some 30 revisions of the Qing Code gradually overwhelmed Chinese legal institutions as it grew to some 1,900 statutes. Some of the Qing Code survived the Communist revolution and remains in place today. The Qing Code was translated into English in 1810 by George Thomas Staunton.

Some Confucian features of the Qing Code included deference to the family hierarchy where even the accidental death of an elder meant death. Conversely, if a child cursed an elder and the child was then beaten to death, the punishment to the offender was relatively mild.

1912 and 1949

The Qing Code was substantially revoked at the time of the creation of the Republic of China in 1912.

Surprising to most Westerners is the fact that China had little companion codification of its civil law. Indeed, China believed heavily in using criminal law as a means to control public morality. Some of their historic legal beliefs strike as odd such as the requirement of a confessions before conviction could follow. This led to torture. Another was the common use of public shame, not unlike the medieval English stock.

In 1949, China turned a corner in law and adopted a Communist form of government, with all that entails in terms of law and the vindication of the legalists. Chen wrote:

"The traditional legal system, which continued from one dynasty to another for several thousands of years, was seemingly deliberately broken off by modern legal reforms at the turn of the century. It was further repudiated as being a feudalist remnant, from 1949 onwards."

China struggles to match modern standards of law such as an independent judiciary, independent advocates, the presumption of innocence and individual rights.

When European society was first introduced to Chinese law, it was much marvelled at as the law in Europe at the time was hardly more advanced.

However, the legal system in China did not evolve as did that of Europe and its colonies, exacerbated by the policy of isolation of the 20th Century Communist regime.

Still, as China gradually worked in the European civil law system, that change was just another step in the oldest continuously operating legal system in the world.

REFERENCES:

  • Bell, D., East Meets West – Human Rights and Democracy in East Asia (Princeton: Princeton University Press, 2000).
  • Bodde, D. and Morris, C., Law in Imperial China (Cambridge, Mass. : Harvard University Press, 1967).
  • Chao, Charles Liu, China's Lawyer System: Dawning upon the World through a Tortuous Process, 23 Whittier L. Rev. 1037 (2001-2002)
  • Chen, J., Chinese Law (London: Kluwer Law International, 1999).
  • Duhaime, Lloyd, Crime and Punishment in Ancient China, published at duhaime.org/LawMuseum/LawArticle-367/Crime-and-Punishment-in-Ancient-China.aspx
  • Ebrey, P., The Cambridge Illustrated History of China (Cambridge: Cambridge University Press, 1996).
  • Elisseeff, D, and I., La Civilisation de la Chine Classique (Paris: Arthaud, 1979).
  • Gray, J. H., China - A History of the Laws, Manners, and Customs of the People (London: Macmillan and Co., 1878).
  • Lewis, M., The Early Chinese Empires – Qin and Han (London : Belknap Press, 2007).
  • Liu, Y., Origins of Chinese Law (Oxford : Oxford University Press, 1998).

  China - A Legal History is published in three parts. You may return to Part 1 or Part 2.