► China - A Legal History is published in three parts. You may return to Part 1 or go on to Part 3.
Confucius
Confucius’ life, from 551-479 BC is the harbinger of the far-reaching Confucian legal philosophy: low reliance on law and harsh punishment. Social order was thought best enhanced by family values and leaving responsibility in every person and their conscience. Confucius (pictured, left) had a code but it one of rigid personal ritual and morality – not one based on fear-based law, with enforceable and punishable elements.
Confucius described the fundamental philosophy behind his model of law:
“Lead the people by regulations, keep them in order by punishments and they flee from you and lose all self-respect.
“But lead them by virtue and keep them in order by the established morality, and they will keep their self-respect and come to you.”
His real name was Kung Chiu-Tzu and he was, to the end of his days, a detail person. He was, his whole life, heavily engaged in political intrigue and it was when he found himself on the outside looking in, that he found the time to do most of his writing (similar to what would happened with Cicero 500 years later).
Confucius was appointed a judge and then, when he was about 51, minister of justice in the state of Lu. This experience enhanced his standing and his subsequent teachings, which were spread by his many pupils, as it was by his voluminous writings.
In 400 BC, the Fa Jing (Canon of Laws) was published. No copy has ever been found although the document is mentioned in other writings which have survived (fa is the Chiese word for law and the script of the term is pictured)
In 350 BC, (date approximate), the Code of Li k’vei was published. The code of laws dealt with theft, robbery, prison, arrest and general rules. It served as a model for the subsequent Tang Code.
Han Fei (280-233 BC)
Han Fei Tze 280-233 BC was a Chinese jurist of long-lasting repute and contribution.
He picked up on the writing of Chang Yang (d., 330 BC) and became the leader of the fledging legalist movement, a legal philosophy called fa jia or fa kia, and which placed the state at the centre of law and order. Fa kia law schools were set up to expand the thinking.
He noted that Confucius’ policy of “family first” left the king second fiddle. One of his favourite put-downs of Confucius was the legend of a Confucian soldier running away from battle to return home and care for an elder.
Han Fei (pictured, right) criticized Confucius’ philosophy as naive, comparing reliance on a man’s conscience no better than expecting an infant to do the right thing. He wrote:
“Order and strength (of a state) spring from the observance of law. Disorder and weakness (of a state) spring from the disregard of it.”
He wrote a book on governance and his influence was great on the kings of Chinese states. He scared many Confucians to whispers. He successfully promoted strict laws and harsh penalties as the best and most efficient way to govern.
Li Si
The Ch’in chief justice was Li Si (aka Li Ssu, 280-208 BC, dates approximate), who picked up where Han Fei left off (he was a former schoolmate of Han Fei), and made sure the Qin Code was applied throughout China.
Li Si, too, was a legalist as he wrote:
“Only an intelligent ruler is capable of applying heavy punishments to light offenses. If light offenses carry heavy punishments, one can imagine what will be done against a serious offense. Thus, the people will not dare to break the laws."
Under the Qin Code, the punishment for publicly criticizing the law was death and citizens had a legal obligation to inform on each other. The teaching of history was banned, most books were burned resulting in a monumental loss of historical documents, for which he is infamous.
When he fell into disfavour, Li Si felt the thrust of his "heavy punishment".
He was executed in 208 BC by the rare but barbaric method of being cut in half in public.
Qin Code
During the Chin or Qin Dynasty of 221-206 BC, the King of Qin (aka Ch’in) managed to defeat most of the other kings and was able to consolidate power over much of the modern-day territory of China. Indeed, the nation of China takes its name from Ch’in.
The emperor of Ch’in heeded Han Fei’s advice and consolidated his rule with a harsh penal code for all – the Qin Code (also called the Chin Code).
Author Liu writes:
“The Qin Code (was) excavated in 1975 from Qin tombs in Yunmeng county, Hubei province (written on) bamboo slips ....”
The Qin Code eroded the Confucian base from which most Chinese law had benefited to date. This was a clear reflection of a Han Fei’s influential legalist policy change in China where rulers sought to shape and direct societal behaviour through tough criminal law, including, as corporal punishments, castration or amputation of the nose or legs.
Han Code
In 206 BC, the Han Dynasty began and Confucius legal policy was reinvented with a vengeance and thereafter remained as the “dominant force” behind Chinese law right up 1949.
The legal reform was led by the benevolent spirit of Liu Pang (aka Liu Bang), emperor of China from 206-195 BC. He stated publicly that there were far too many laws. So he whittled it down to three; prohibitions against murder, injury and theft.
But that did not last. Even the Han Code grew and grew as the jurists tried to cover all cases, an exercise which eventually failed.
Historian Lewis wrote:
“By the late first century AD, (the Han Code) had grown into tens of thousands of articles totalling more than seven million characters. Legal documents filed tables and cupboards, so even knowledgeable officials could not examine them all.”
The profusion of law was a problem was not that dissimilar to that faced by Justinian in 533.
One thing which did change was an alteration in corporal punishment. In about 167 BC, tattooing and cutting off of the nose and feet were replaced by hard labour and caning. But what Chinese law give with one hand, they took away with the other: by the time the Han Dynasty collapsed in 220, the number of offences for which the penalty was death, in the latter years of the Han Dynasty, was more than a thousand.
Continued ....
► China - A Legal History is published in three parts. You may return to Part 1 or go on to Part 3.