《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）BASIC CONCEPTS OF CHINESE LAW：THE GENESIS AND EVOLUTION OF LEGAL THOUGHT IN TRADITIONAL CHINA

BASIC CONCEPTS OF CHINESE LAW:THE GENESIS AND EVOLUTION OF LEGAL THOUGHT IN TRADITIONAL CHINA DERK BODDE Professor of Chinese,Department of Oriental Studies,University of Pennsylvania (Read April 18,1963) 1.THE SCOPE AND SIGNIFICANCE OF Behind this last point,however,lie other more CHINESE LAW basic considerations:the fact that the written law WEsTERN scholars on China,with only a few of pre-modern China was overwhelmingly penal distinguished exceptions,have until recently in emphasis,that it was limited in scope to being shown but little interest in the study of Chinese primarily a legal codification of the ethical norms law.Today,especially in the United States,this long dominant in Chinese society,and that it was situation is changing,but the stimulus obviously nevertheless rarely invoked to uphold these norms comes much more forcibly from the China of Mao except when other less punitive measures had Tse-tung than from the law of pre-Republican failed.Chinese traditional society,in short,was (i.e.,pre-1912)China.It is the latter,especially by no means a legally oriented society,and this in its formal codified aspects,which is the subject despite the fact that,as we shall see,it produced of this article.1 a large and intellectually impressive body of codi- fied law. Good reasons can of course be found to explain the traditional indifference.They include the The penal emphasis of such law,for example, lack of legal training or interest among all but a meant that matters of a civil nature were either handful of former Western sinologists,the formi- ignored by it entirely (e.g.,contracts),or were dable difficulties in style and vocabulary of the given only limited treatment within its penal Chinese legal literature,and the fact that by format (e.g.,property rights,inheritance,mar- Chinese scholars themselves this literature was riage).The law was only secondarily interested usually regarded as utilitarian only and hence as in defending the rights-especially the economic little worthy of study on aesthetic or moral rights-of one individual or group against another individual or group,and not at all in defending grounds. such rights against the state.What really con- *This paper is an outgrowth of a collaborative course, cerned it-though this is to be surmised rather "Chinese Legal Thought,"given at the University of than explicitly discovered in the Chinese legal Pennsylvania Law School by Professor Clarence Morris literature-were all acts of moral or ritual impro- of the Law School,Professor W.A.Rickett of my de- partment,and myself.I am very grateful to Professor priety or of criminal violence which seemed in Morris for reading the paper in typescript and offering Chinese eyes to be violations or disruptions of the a number of very helpful suggestions. total social order.The mere existence of the law 1 In the pre-modern field,nontheless,a notable recent was intended to deter the commission of such acts, contribution is T'ung-tsu Ch'u,Law and Society in Tradi- tional China (Paris and The Hague,Mouton Co.. but once they occurred,the restoration of social 1961),which is a revised English version of the author's harmony required that the law be used to exact 1947 work in Chinese.The most comprehensive study in retribution from their doer.In the final analysis, a Western language of Chinese law generally is Jean a violation of the social order really meant,in Escarra,Le Droit chinois (Peiping,Henri Vetch,1936); Chinese thinking,a violation of the total cosmic English translation by Gertrude R.Browne,Chinese Law, Works Progress Administration,W.P.2799,University order,since,according to the Chinese world-view, of Washington,Seattle (Cambridge,Mass.Xerox reprint the spheres of man and nature were inextricably by Harvard University Law School and East Asian Re- interwoven to form an unbroken continuum.? search Center,1961).This,an important pioneer work, now stands in need of revision.Among several bird's-eye See especially M.H.van der Valk,Interpretations of sketches may be mentioned Karl Bunger,"Die Rechtsidee the Supreme Court at Peking,Years 1915 and 1916 in der chinesischen Geschichte,"Saeculum 3 (1952): (Batavia [Jakarta],University of Indonesia Sinological 192-217,and Franz Michael,'The Role of Law in Tradi- Institute,1949),pp.20-21,and M.J.Meijer,The Intro- tional,Nationalist and Communist China,"The China duction of Modern Criminal Law in China (Batavia Ouarterly,Jan.-March 1962:124-148. [Jakarta],Koninklijke Drukkerij de Unie,1949),pp. PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY,VOL.107,NO.5,OCTOBER,1963 375 This content downloaded by the authorized user from 192.168.82.206 on Thu,15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions

BASIC CONCEPTS OF CHINESE LAW: THE GENESIS AND EVOLUTION OF LEGAL THOUGHT IN TRADITIONAL CHINA * DERK BODDE Professor of Chinese, Department of Oriental Studies, University of Pennsylvania (Read April 18, 1963) 1. THE SCOPE AND SIGNIFICANCE OF CHINESE LAW WESTERN scholars on China, with only a few distinguished exceptions, have until recently shown but little interest in the study of Chinese law. Today, especially in the United States, this situation is changing, but the stimulus obviously comes much more forcibly from the China of Mao Tse-tung than from the law of pre-Republican (i.e., pre-1912) China. It is the latter, especially in its formal codified aspects, which is the subject of this article.' Good reasons can of course be found to explain the traditional indifference. They include the lack of legal training or interest among all but a handful of former Western sinologists, the formi￾dable difficulties in style and vocabulary of the Chinese legal literature, and the fact that by Chinese scholars themselves this literature was usually regarded as utilitarian only and hence as little worthy of study on aesthetic or moral grounds. * This paper is an outgrowth of a collaborative course, "Chinese Legal Thought," given at the University of Pennsylvania Law School by Professor Clarence Morris of the Law School, Professor W. A. Rickett of my de￾partment, and myself. I am very grateful to Professor Morris for reading the paper in typescript and offering a number of very helpful suggestions. 1 In the pre-modern field, nontheless, a notable recent contribution is T'ung-tsu Ch'iu, Law and Society in Tradi￾tional China (Paris and The Hague, Mouton & Co., 1961), which is a revised English version of the author's 1947 work in Chinese. The most comprehensive study in a Western language of Chinese law generally is Jean Escarra, Le Droit chinois (Peiping, Henri Vetch, 1936); English translation by Gertrude R. Browne, Chinese Law, Works Progress Administration, W.P. 2799, University of Washington, Seattle (Cambridge, Mass., Xerox reprint by Harvard University Law School and East Asian Re￾search Center, 1961). This, an important pioneer work, now stands in need of revision. Among several bird's-eye sketches may be mentioned Karl Biunger, "Die Rechtsidee in der chinesischen Geschichte," Saeculum 3 (1952): 192-217, and Franz Michael, 'The Role of Law in Tradi￾tional, Nationalist and Communist China," The China Quarterly, Jan.-March 1962: 124-148. Behind this last point, however, lie other more basic considerations: the fact that the written law of pre-modern China was overwhelmingly penal in emphasis, that it was limited in scope to being primarily alegal codification of the ethical norms long dominant in Chinese society, and that it was nevertheless rarely invoked to uphold these norms except when other less punitive measures had failed. Chinese traditional society, in short, was by no means a legally oriented society, and this despite the fact that, as we shall see, it produced a large and intellectually impressive body of codi￾fied law. The penal emphasis of such law, for example, meant that matters of a civil nature were either ignored by it entirely (e.g., contracts), or were given only limited treatment within its penal format (e.g., property rights, inheritance, mar￾riage). The law was only secondarily interested in defending the rights-especially the economic rights-of one individual or group against another individual or group, and not at all in defending such rights against the state. What really con￾cerned it-though this is to be surmised rather than explicitly discovered in the Chinese legal literature-were all acts of moral or ritual impro￾priety or of criminal violence which seemed in Chinese eyes to be violations or disruptions of the total social order. The mere existence of the law was intended to deter the commission of such acts, but once they occurred, the restoration of social harmony required that the law be used to exact retribution from their doer. In the final analysis, a violation of the social order really meant, in Chinese thinking, aviolation of the total cosmic order, since, according to the Chinese world-view, the spheres of man and nature were inextricably interwoven to form an unbroken continuum.2 2 See especially M. H. van der Valk, Interpretations of the Supreme Court at Peking, Years 1915 and 1916 (Batavia [Jakarta], University of Indonesia Sinological Institute, 1949), pp. 20-21, and M. J. Meijer, The Intro￾duction of Modern Criminal Law in China (Batavia [Jakarta], Koninklijke Drukkerij de Unie, 1949), pp. PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY, VOL. 107, NO. 5, OCTOBER, 1963 375 This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions

376 DERK BODDE [PROC.AMER.PHIL.SOC. For these reasons,the official law always oper- How law in imperial China became the embodi- ated in a vertical direction from the state upon the ment of the ethical norms of Confucianism will individual,rather than on a horizontal plane be discussed later.Here it should be stressed that directly between two individuals.If a dispute in China,perhaps even more than in most other involved two individuals,individual A did not civilizations,the ordinary man's awareness and bring a suit directly against individual B.Rather acceptance of such norms was shaped far more by he lodged his complaint with the authorities,who the pervasive influence of custom than by any then decided whether or not to prosecute individ- formally enacted system of law.The clan into ual B.No private legal profession existed to help which he was born,the guild of which he might individuals plead their cases,and even in the become a member,the group of gentry elders hold- government itself,because law was only the last ing informal sway in his rural community-these of several corrective agencies,officials exclusively and other extra-legal bodies helped to smooth the concerned with the law operated only on the inevitable frictions in Chinese society by inculcat- higher administrative levels.On the lowest level, ing moral precepts upon their members,mediating that of the hsien or county,which was the level disputes,or,if need arose,imposing disciplinary where governmental law impinged most directly sanctions and penalties. upon the people,its administration was conducted The workings of such unofficial agencies were by the hsien magistrate as merely one of several supplemented by complementary procedures on the administrative functions.This meant that,though part of the government itself which,despite their usually devoid of any formal legal training,he was official inspiration,functioned quite separately obliged to act as detective,prosecutor,judge,and from the formal legal system.These extra-legal jury rolled into one. organs and procedures,then,were what the Fortunately for the operation of the system, Chinese everyman normally looked to for guidance however,the magistrate was commonly assisted in and sanction,rather than to the formal judicial his judicial work by a legal secretary who did system per se.Involvement in the latter was possess specialized knowledge of the law,and who,popularly regarded as a road to disaster and there- on behalf of the magistrate,could prepare cases fore to be avoided at all cost."Win your lawsuit for trial,suggest appropriate sentences,or write and lose your money,"runs a Chinese proverb. the legal reports which went to higher govern- Or again:"Of ten reasons by which a magistrate mental levels.Yet it is indicative of the Chinese may decide a case,nine are unknown to the attitude toward law that this secretary did not public..”s himself belong to the formal administrative sys- From all this one might conclude that the real tem.He was merely a personal employee of the reason for the Western neglect of Chinese formal magistrate,who paid his salary out of his own law is that this law inherently does not deserve private purse.Hence the secretary was not per- much attention.Such a conclusion,however, mitted to try cases himself or even to be present would be unfortunate on several counts.In the at the trials.However,to avoid miscarriages of first place,law is an important touchstone for justice on this lowest administrative level,a very measuring any civilization,and its differing role carefully defined system of appeals existed which automatically took all but minor cases to higher Ch'ing (Cambridge,Mass.,Harvard University Press, 1962),chap.6,“Private Secretaries,”and chap.7,“Ad- levels for final judgment-in the case of capital ministration of Justice." crimes as far upward as the emperor himself.s These procedures,which were of a police nature (the pao-chia system of registration and crime-reporting), 3-4.For law and the Chinese concept of cosmic harmony, economic (the li-chia system for encouraging tax payment, see sect.11 below. governmental distribution of grain in times of need,etc.), a Good accounts of judicial procedure in imperial times and ideological (hortatory lectures on moral duties appear,inter alia,in R.H.van Gulik,T'ang-yin-pi-shih, ceremonies in honor of the aged),are described in great "Parallel Cases from under the Pear-Tree"(Leiden, detail in Kung-chuan Hsiao,Rural China,Imperial Con- E.J.Brill,1956),chap.3 of Intro.,and Sybille van der trol in the Nineteenth Century (Seattle,University of Sprenkel,Legal Institutions in Manchu China,London Washington Press,1960);also summarized in Dr.Hsiao's School of Economics Monographs on Social Anthropology article,"Rural Control in Nineteenth Century China," 24 (London,The Athlone Press,1962),chap.6.Par- Far Eastern Quarterly 12 (1953):173-181. ticularly valuable for its account of the legal secretary 6 See William Scarborough,4 Collection of Chinese and of the legal machinery which operated at the magis- Proverbs,revised and enlarged by C.Wilfred Allan trate's level and from there took cases up to higher levels (Shanghai,Presbyterian Mission Press,1926),pp.334 is T'ung-tsu Ch'u,Local Government in China under the and 335,as quoted in van der Sprenkel,op.cit.,p.135. 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376 DERK BODDE [PROC. AMER. PHIL. SOC. For these reasons, the official law always oper￾ated in a vertical direction from the state upon the individual, rather than on a horizontal plane directly between two individuals. If a dispute involved two individuals, individual A did not bring a suit directly against individual B. Rather he lodged his complaint with the authorities, who then decided whether or not to prosecute individ￾ual B. No private legal profession existed to help individuals plead their cases, and even in the government itself, because law was only the last of several corrective agencies, officials exclusively concerned with the law operated only on the higher administrative levels. On the lowest level, that of the hsien or county, which was the level where governmental law impinged most directly upon the people, its administration was conducted by the hsien magistrate as merely one of several administrative functions. This meant that, though usually devoid of any formalegal training, he was obliged to act as detective, prosecutor, judge, and jury rolled into one. Fortunately for the operation of the system, however, the magistrate was commonly assisted in his judicial work by a legal secretary who did possess specialized knowledge of the law, and who, on behalf of the magistrate, could prepare cases for trial, suggest appropriate sentences, or write the legal reports which went to higher govern￾mental levels. Yet it is indicative of the Chinese attitude toward law that this secretary did not himself belong to the formal administrative sys￾tem. He was merely a personal employee of the magistrate, who paid his salary out of his own private purse. Hence the secretary was not per￾mitted to try cases himself or even to be present at the trials. However, to avoid miscarriages of justice on this lowest administrative level, a very carefully defined system of appeals existed which automatically took all but minor cases to higher levels for final judgment-in the case of capital crimes as far upward as the emperor himself.3 3-4. For law and the Chinese concept of cosmic harmony, see sect. 11 below. 3 Good accounts of judicial procedure in imperial times appear, inter alia, in R. H. van Gulik, T'ang-yin-pi-shih, "Parallel Cases from under the Pear-Tree" (Leiden, E. J. Brill, 1956), chap. 3 of Intro., and Sybille van der Sprenkel, Legal Institutions in Manchu China, London School of Economics Monographs on Social Anthropology 24 (London, The Athlone Press, 1962), chap. 6. Par￾ticularly valuable for its account of the legal secretary and of the legal machinery which operated at the magis￾trate's level and from there took cases up to higher levels is T'ung-tsu Ch'ii, Local Government in China under the How law in imperial China became the embodi￾ment of the ethical norms of Confucianism will be discussed later. Here it should be stressed that in China, perhaps even more than in most other civilizations, the ordinary man's awareness and acceptance of such norms was shaped far more by the pervasive influence of custom than by any formally enacted system of law. The clan into which he was born, the guild of which he might become a member, the group of gentry elders hold￾ing informal sway in his rural community-these and other extra-legal bodies helped to smooth the inevitable frictions in Chinese society by inculcat￾ing moral precepts upon their members, mediating disputes, or, if need arose, imposing disciplinary sanctions and penalties. The workings of such unofficial agencies were supplemented by complementary procedures on the part of the government itself which, despite their official inspiration, functioned quite separately from the formal legal system.4 These extra-legal organs and procedures, then, were what the Chinese everyman normally looked to for guidance and sanction, rather than to the formal judicial system per se. Involvement in the latter was popularly regarded as a road to disaster and there￾fore to be avoided at all cost. "Win your lawsuit and lose your money," runs a Chinese proverb. Or again: "Of ten reasons by which a magistrate may decide a case, nine are unknown to the public" 5 From all this one might conclude that the real reason for the Western neglect of Chinese formal law is that this law inherently does not deserve much attention. Such a conclusion, however, would be unfortunate on several counts. In the first place, law is an important touchstone for measuring any civilization, and its differing role Ch'ing (Cambridge, Mass., Harvard University Press, 1962), chap. 6, "Private Secretaries," and chap. 7, "Ad￾ministration of Justice." 4 These procedures, which were of a police nature (the pao-chia system of registration and crime-reporting), economic (the li-chia system for encouraging tax payment, governmental distribution of grain in times of need, etc.), and ideological (hortatory lectures on moral duties, ceremonies in honor of the aged), are described in great detail in Kung-chuan Hsiao, Rural China, Imperial Con￾trol in the Nineteenth Century (Seattle, University of Washington Press, 1960); also summarized in Dr. Hsiao's article, "Rural Control in Nineteenth Century China," Far Eastern Quarterly 12 (1953): 173-181. 5 See William Scarborough, A Collection of Chinese Proverbs, revised and enlarged by C. Wilfred Allan (Shanghai, Presbyterian Mission Press, 1926), pp. 334 and 335, as quoted in van der Sprenkel, op. cit., p. 135. This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions

V0L.107,N0.5,1963] BASIC CONCEPTS OF CHINESE LAW 377 in China as compared with the West points to Most recent of these dynastic codes is that of basic societal differences between the two civiliza- the Ch'ing or Manchu dynasty,compiled in defini- tions which deserve detailed analysis.In the tive form in 1740 and consisting of 436 statutes second place,the various extra-legal bodies for and approximately 1,800 sub-statutes.10 For pre- social control mentioned above,despite their ob- vious dynasties there also exists a sequence of vious importance and the generalized remarks earlier codes going back to the T'ang code of 653, about them to be found in many writings,are very in 502 articles.1 Before this date,no codes sur- difficult to study with precision.This is because vive save for scattered quotations in other works. of their scattered and informal mode of operation, However,a study still in progress has already and the fact that what they did and said was often yielded a wealth of information on the code and either not written down at all,or,if written,not judicial procedure of the first lengthy imperial readily available in published form. dynasty,that of Han (206 B.C.-A.D.220).12 The literature on formal Chinese law,by con- Prior to the Han and its short-lived predecessor, trast,is large in quantity,fairly readily available, the Ch'in dynasty (221-207 B.c.),no centralized and covers a longer time span than that of any empire yet existed in China.At that time there other present-day political entity.It includes the were only a number of independent and mutually legal sections in various encyclopaedic compilations warring principalities.This pre-imperial age, of governmental institutions,the chapters on legal often called the age of Chinese feudalism owing to development in many of the dynastic histories,? its institutional similarities to medieval Europe,is and several large compendia of actual law cases,s also the age that saw the formative beginnings of and above all the voluminous law codes of succes- Chinese written law.Excluding unreliable myth sive dynasties.The latter,in particular,have a and legend,the earliest datable evidence of such continuity and authoritativeness which make them written law is the promulgation in 536 B.c.of cer- unrivaled instruments for precisely measuring, tain "books of punishment"in one of these prin- dynasty by dynasty,the shifting configurations of cipalities.About this we shall have more to say Chinese social and political values as officially in section 4. defined. So far this challenging task has hardly been attempted. 2.LAW,RELIGION,AND ECONOMICS e It is possible to study the rules of many large clans, A striking feature of the early written law of however,as preserved in their genealogies.See Hu Hsien several major civilizations of antiquity has been Chin,The Common Descent Group in China and Its Function (New York,Viking Fund,1948);Hui-chen 10 This is the Ta Ch'ing lii-li,available in two partial Wang Liu,The Traditional Chinese Clan Rules,Mono- translations:George Thomas Staunton,Ta Tsing Lew graphs of the Association for Asian Studies 7 (Locust Lee,Being the Fundamental Laws...of the Penal Code Valley,N.Y.,J.J.Augustin,1959);and the same,"An of China (London,T.Cadell W.Davies,1810),and Analysis of Chinese Clan Rules:Confucian Theories in Gui Boulais,Manuel du code chinois,Varietes sinologiques Action,"in D.S.Nivison and Arthur F.Wright,eds., series 55 (Shanghai,1924).The former translates all Confucianism in Action (Stanford,Stanford University of the statutes (li),but omits the sub-statutes (i); Press,1959),pp.63-96. the latter,which is more complete and includes the 7 Two of the most important of these have been trans- Chinese text,covers (sometimes in abbreviated form lated by Hulsewe and Balazs (see note 12). only)372 of the 436 statutes,and many but far from all 8 Notably the nineteenth-century Hsing-an hui-lan of the sub-statutes. (Conspectus of Penal Cases)which,with its supplements, 11 This,the Tang li shu-yi,is as yet untranslated contains over 7,600 cases dating mostly from the late Though traditionally said to contain 500 articles,the eighteenth and early nineteenth century. As part of the actual number is 502 according to Karl Bunger,Ouellen research on Chinese law currently being conducted at the sur Rechtsgeschichte der T'ang-Zeit,Monumenta Serica University of Pennsylvania with the financial assistance Monograph 9(Peiping,1946),p.31.The code has been of the Law School's Institute of Legal Research,an Eng- analyzed by Ou Koei-hing,La Peine dapres le code des lish translation of selected cases from this huge collection T'ang (Shanghai,Universite I'Aurore,1935). For a is now in course of preparation.A much smaller compila- study and partial translation of one of the codes between tion,made in 1211 of 144 cases,has been translated in full Ch'ing and T'ang,see Paul Ratchnevsky,Un Code des by van Gulik,Tang-yin-pi-shih (cited in note 3) Yuan (Paris,E.Leroux,1937). Save in Dr.Ch't's Law and Society in Traditional 12A.F.P.Hulsewe,Remnants of Han Law,Sinica China (cited in note 1),which,however,may be criticized Leidensia 9 (1 v.so far,Leiden,E.J.Brill,1955),to be on the grounds that it unduly emphasizes the unchanging followed by a second volume.For the dynasties between nature of these attitudes.A different approach might re- Han and T'ang,see the translation and commentary by veal significant,though less immediately evident,changes Etienne Balazs,Le Traite juridique du "Souei-chou" in attitudes. (Leiden,E.J.Brill,1954). 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VOL. 107, NO. 5, 19631 BASIC CONCEPTS OF CHINESE LAW 377 in China as compared with the West points to basic societal differences between the two civiliza￾tions which deserve detailed analysis. In the second place, the various extra-legal bodies for social control mentioned above, despite their ob￾vious importance and the generalized remarks about them to be found in many writings, are very difficult to study with precision. This is because of their scattered and informal mode of operation, and the fact that what they did and said was often either not written down at all, or, if written, not readily available in published form." The literature on formal Chinese law, by con￾trast, is large in quantity, fairly readily available, and covers a longer time span than that of any other present-day political entity. It includes the legal sections in various encyclopaedicompilations of governmental institutions, the chapters on legal development in many of the dynastic histories,7 and several large compendia of actual law cases,8 and above all the voluminous law codes of succes￾sive dynasties. The latter, in particular, have a continuity and authoritativeness which make them unrivaled instruments for precisely measuring, dynasty by dynasty, the shifting configurations of Chinese social and political values as officially defined. So far this challenging task has hardly been attempted.9 6 It is possible to study the rules of many large clans, however, as preserved in their genealogies. See Hu Hsien Chin, The Common Descent Group in China and Its Function (New York, Viking Fund, 1948); Hui-chen Wang Liu, The Traditional Chinese Clan Rules, Mono￾graphs of the Association for Asian Studies 7 (Locust Valley, N. Y., J. J. Augustin, 1959); and the same, "An Analysis of Chinese Clan Rules: Confucian Theories in Action," in D. S. Nivison and Arthur F. Wright, eds., Confucianism in Action (Stanford, Stanford University Press, 1959), pp. 63-96. 7 Two of the most important of these have been trans￾lated by Hulsewe and Balazs (see note 12). 8 Notably the nineteenth-century Hsing-an hui-lan (Conspectus of Penal Cases) which, with its supplements, contains over 7,600 cases dating mostly from the late eighteenth and early nineteenth century. As part of the research on Chinese law currently being conducted at the University of Pennsylvania with the financial assistance of the Law School's Institute of Legal Research, an Eng￾lish translation of selected cases from this huge collection is now in course of preparation. A much smaller compila￾tion, made in 1211 of 144 cases, has been translated in full by van Gulik, T'ang-yin-pi-shih (cited in note 3). 9 Save in Dr. Ch'ii's Law and Society in Traditional China (cited in note 1), which, however, may be criticized on the grounds that it unduly emphasizes the unchanging nature of these attitudes. A different approach might re￾veal significant,hough less immediately evident, changes in attitudes. Most recent of these dynastic codes is that of the Ch'ing or Manchu dynasty, compiled in defini￾tive form in 1740 and consisting of 436 statutes and approximately 1,800 sub-statutes.'0 For pre￾vious dynasties there also exists a sequence of earlier codes going back to the T'ang code of 653, in 502 articles.'1 Before this date, no codes sur￾vive save for scattered quotations in other works. However, a study still in progress has already yielded a wealth of information on the code and judicial procedure of the first lengthy imperial dynasty, that of Han (206 B.C.-A.D. 220).12 Prior to the Han and its short-lived predecessor, the Ch'in dynasty (221-207 B.C.), no centralized empire yet existed in China. At that time there were only a number of independent and mutually warring principalities. This pre-imperial age, often called the age of Chinese feudalism owing to its institutional similarities to medieval Europe, is also the age that saw the formative beginnings of Chinese written law. Excluding unreliable myth and legend, the earliest datable evidence of such written law is the promulgation in 536 B.C. of cer￾tain "books of punishment" in one of these prin￾cipalities. About this we shall have more to say in section 4. 2. LAW, RELIGION, AND ECONOMICS A striking feature of the early written law of several major civilizations of antiquity has been 10 This is the Ta Ch'ing Ii-li, available in two partial translations: George Thomas Staunton, Ta Tsing Leu Lee, Being the Fundamental Laws . . . of the Penal Code of China (London, T. Cadell & W. Davies, 1810), and Gui Boulais, Manuel du code chinois, Varietes sinologiques series 55 (Shanghai, 1924). The former translates all of the statutes (Nlu), but omits the sub-statutes (ii); the latter, which is more complete and includes the Chinese text, covers (sometimes in abbreviated form only) 372 of the 436 statutes, and many but far from all of the sub-statutes. 11 This, the T'ang lu shu-yi, is as yet untranslated. Though traditionally said to contain 500 articles, the actual number is 502 according to Karl Buinger, Quellen zur Rechtsgeschichte der T'ang-Zeit, Monumenta Serica Monograph 9 (Peiping, 1946), p. 31. The code has been analyzed by Ou Koei-hing, La Peine d'apres le code des T'ang (Shanghai, Universite l'Aurore, 1935). For a study and partial translation of one of the codes between Ch'ing and T'ang, see Paul Ratchnevsky, Un Code des Yuan (Paris, E. Leroux, 1937). 12 A. F. P. Hulsewe, Remnants of Han Law, Sinica Leidensia 9 (1 v. so far, Leiden, E. J. Brill, 1955), to be followed by a second volume. For the dynasties between Han and T'ang, see the translation and commentary by Etienne Balazs, Le Traiti juridique du "Souei-chou" (Leiden, E. J. Brill, 1954). This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions

378 DERK BODDE [PROC.AMER.PHIL.SOC. its close association with religion.Not all of these lived and failed to survive the political disruption civilizations,to be sure,actually produced systems following the death of King Asoka.Since that of written law.When they did so,however,they time,therefore,we are told that the "religious commonly signalized this achievement by attribut- basis of law predominates through the rest of ing,at least initially,a divine origin to the law Indian history until modern times." they used-one resting on the belief that such law Turning from Asia to Europe,we find Plato,in had been given or revealed to mankind by a god the famous opening passage of the Laws,making or gods.1a one of his protagonists unhesitatingly attribute the This belief so obviously underlies Judaic and origin of law "to a god."17 In Rome,similarly, Islamic law that for them it requires no further despite its early secularization of law,we find elaboration.It is equally apparent,however,in Cicero purporting to quote "the opinion of the the world's earliest written law as known to us wisest men of his day'”"to the effect that“Law is from Mesopotamia.On the stele bearing the not the product of human thought,nor is it any famed laws of Hammurabi (ca.1728-1686 B.c.), enactment of peoples,but something which rules for example,a sculptured relief shows Hammurabi the whole universe....Law is the primal and receiving from Shamash,god of justice,a divine ultimate mind of God."1s Even in eighteenth- commission for his writing of the laws.And in century England,indeed,after centuries of experi- the prologue to the laws themselves Hammurabi ence with a secularly-based common law,we find a tells us:"Anum [the sky-god]and Enlil [the similar conception persisting in legal theory. storm-god]named me to promote the welfare of Thus we are told concerning Sir William Black- the people,me,Hammurabi,the devout,god- stone,author of the famous Commentaries (1765), fearing prince,to cause justice to prevail in the that he"regarded divine law as the corner-stone of land,to destroy the wicked and the evil,that the the whole [legal]edifice,""declared that divine strong might not oppress the weak."1 law had been specifically revealed to men through In Egypt,on the other hand,no written law has inspired writings,"and "sought to make secular as yet been found,apparently because the pharoah,law approximate to the dictates of God and of as a living god on earth,needed no law other than nature."1 his own spoken utterance:"He,as a god,was the The contrast of China to all this is indeed strik- state....The customary law of the land was ing,for in China,as we shall see in the next sec- conceived to be the word of the pharoah.... tion,no one at any time has ever hinted that any The authority of codified law would have competed kind of written law-even the best written law- with the personal authority of the pharoah."15 could have had a divine origin. And in India,too,no real equivalent of our idea Another point worthy of more attention than of law existed in early times.The nearest ap-can be given it here is the possible relationship of proach was the concept of dharina,a word trans-law to economic growth in certain civilizations. latable as "law."but more properly signifying "religious law,"and hence ipso facto having a 1e Daniel H.H.Ingalls,"Authority and Law in Ancient divine connotation.Only later did the idea of a India,"in Authority and Law in the Ancient Orient, Supplement 17 (1954)of Journal of the American purely secular law appear in Kautilya's Arthasastra Oriental Society,34-45 (quotation on p.43). (ca.323 B.c.),but this development was short 17 The Athenian in the book asks his companions:"Do you attribute the origin of your legal system to a god or i This theme figures prominently in the excellent a man?"To which the Cretan replies:"To a god; study by William A.Robson,Civilisation and the Growth undoubtedly we ascribe our laws to Zeus,while in Sparta, of Law (New York,Macmillan,1935). the home of our friend here,I believe Apollo is regarded 14 See translation by Theophile J.Meek in James B. as the first law-giver."Quoted in J.Walter Jones,The Pritchard,ed.,Ancient Near Eastern Texts (Princeton, Lawu and Legal Theory of the Greeks (Oxford,Clarendon N.J.,Princeton University Press,1950),p.164.The Press,1956),p.95;see also Robson,op.cit.(note 13 same idea goes back to the earliest collection of laws so above),p.32. far discovered,that of Ur-Nammu (ca.2050 B.C.),the 18 Cicero,De Legibus,II,iv;translation by Clinton fragmentary prologue of which names Nanna,tutelary Walker Keyes in Loeb Classical Library edition (Cam- deity of the city of Ur,as the god through whose guidance bridge,Mass.,Harvard University Press,and London, Ur-Nammu "established justice in the land."See Samuel William Heinemann,1948 reprint),p.381.Also para- N.Kramer,"Ur-Nammu Law Code,"Orientalia,n.s. phrased in Robson,of.cit.,p.3. 23(1954):40-51(quotation on p.46). 19 Robson,op.cit.,pp.47-48,summarizing the ideas of 15 John A.Wilson,The Burden of Egvpt (Chicago, Blackstone as expressed in the Introduction to his Com- University of Chicago Press,1951),pp.49-50. mentaries. 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378 DERK BODDE [PROC. AMER. PHIL. SOC. its close association with religion. Not all of these civilizations, to be sure, actually produced systems of written law. When they did so, however, they commonly signalized this achievement by attribut￾ing, at least initially, a divine origin to the law they used-one resting on the belief that such law had been given or revealed to mankind by a god or gods.13 This belief so obviously underlies Judaic and Islamic law that for them it requires no further elaboration. It is equally apparent, however, in the world's earliest written law as known to us from Mesopotamia. On the stele bearing the famed laws of Hammurabi (ca. 1728-1686 B.C.), for example, a sculptured relief shows Hammurabi receiving from Shamash, god of justice, a divine commission for his writing of the laws. And in the prologue to the laws themselves Hammurabi tells us: "Anum [the sky-god] and Enlil [the storm-god] named me to promote the welfare of the people, me, Hammurabi, the devout, god￾fearing prince, to cause justice to prevail in the land, to destroy the wicked and the evil, that the strong might not oppress the weak." 14 In Egypt, on the other hand, no written law has as yet been found, apparently because the pharoah, as a living god on earth, needed no law other than his own spoken utterance: "He, as a god, was the state. . The customary law of the land was conceived to be the word of the pharoah.... The authority of codified law would have competed with the personal authority of the pharoah." 15 And in India, too, no real equivalent of our idea of law existed in early times. The nearest ap￾proach was the concept of dharma, a word trans￾latable as "law" but more properly signifying 4"religious law," and hence ipso facto having a divine connotation. Only later did the idea of a purely secular law appear in Kautilya's Arthas'&stra (ca. 323 B.C.), but this development was short 13 This theme figures prominently in the excellent study by William A. Robson, Civilisation and the Growth .of Law (New York, Macmillan, 1935). 14 See translation by Theophile J. Meek in James B. Pritchard, ed., Ancient Near Eastern Texts (Princeton, N. J., Princeton University Press, 1950), p. 164. The same idea goes back to the earliest collection of laws so far discovered, that of Ur-Nammu (ca. 2050 B.C.), the fragmentary prologue of which names Nanna, tutelary deity of the city of Ur, as the god through whose guidance Ur-Nammu "established justice in the land." See Samuel N. Kramer, "Ur-Nammu Law Code," Orientalia, n.s., 23 (1954): 40-51 (quotation on p. 46). 15 John A. Wilson, The Burden of Egypt (Chicago, University of Chicago Press, 1951), pp. 49-50. lived and failed to survive the political disruption following the death of King Asoka. Since that time, therefore, we are told that the "religious basis of law predominates through the rest of Indian history until modern times." 1" Turning from Asia to Europe, we find Plato, in the famous opening passage of the Laws, making one of his protagonists unhesitatingly attribute the origin of law "to a god." 17 In Rome, similarly, despite its early secularization of law, we find Cicero purporting to quote "the opinion of the wisest men of his day" to the effect that "Law is not the product of human thought, nor is it any enactment of peoples, but something which rules the whole universe. . . . Law is the primal and ultimate mind of God." 18 Even in eighteenth￾century England, indeed, after centuries of experi￾ence with a secularly-based common law, we find a similar conception persisting in legal theory. Thus we are told concerning Sir William Black￾stone, author of the famous Commentaries (1765), that he "regarded divine law as the corner-stone of the whole [legal] edifice," "declared that divine law had been specifically revealed to men through inspired writings," and "sought to make secular law approximate to the dictates of God and of nature." 19 The contrast of China to all this is indeed strik￾ing, for in China, as we shall see in the next sec￾tion, no one at any time has ever hinted that any kind of written law-even the best written law￾could have had a divine origin. Another point worthy of more attention than can be given it here is the possible relationship of law to economic growth in certain civilizations. 16 Daniel H. H. Ingalls, "Authority and Law in Ancient India," in Authority and Law in the Ancient Orient, Supplement 17 (1954) of Journal of the American Oriental Society, 34-45 (quotation on p. 43). 17 The Athenian in the book asks his companions: "Do you attribute the origin of your legal system to a god or a man ?" To which the Cretan replies: "To a god; undoubtedly we ascribe our laws to Zeus, while in Sparta, the home of our friend here, I believe Apollo is regarded as the first law-giver." Quoted in J. Walter Jones, The Law and Legal Theory of the Greeks (Oxford, Clarendon Press, 1956), p. 95; see also Robson, op. cit. (note 13 above), p. 32. 18Cicero, De Legibus, II, iv; translation by Clinton Walker Keyes in Loeb Classical Library edition (Cam￾bridge, Mass., Harvard University Press, and London, William Heinemann, 1948 reprint), p. 381. Also para￾phrased in Robson, op. cit., p. 3. 19 Robson, op. cit., pp. 47-48, summarizing the ideas of Blackstone as expressed in the Introduction to his Com￾mentaries. This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions

V0L.107,N0.5,1963 BASIC CONCEPTS OF CHINESE LAW 379 Mesopotamia,for example,early experienced a ments as nose-cutting,leg-cutting,castration,and very considerable commercial development,reflec- the like were current in China well before the en- tions of which appear conspicuously in the Ham- actment of any systems of written law (fa).Once murabi code. Mesopotamian civilization,in the written law came into existence,however,the words of a specialist,was characterized by "the meaning of hsing was extended to include not only ubiquitous recognition of private property,"and a the punishments per se,but also the written pro- concern for "the rights of the individual in rela- hibitions whose violation would result in these tion to society and the cosmos."The guess may punishments.In this important secondary usage, be hazarded that in part,at least,Mesopotamian therefore,hsing may be fairly understood in the law may have arisen in response to this insistence sense of "penal law"(or laws).The frequency of upon private property and individual rights. its occurrence in the early legal passages-both Here again the contrast with China is instruc- alone and as an alternative for fa-is indicative of tive.For in China the initial stimulus for law was the antiquity of the Chinese view which sees writ- no more economic than it was religious.Economic ten law,fa,as primarily signifying penal law, growth,to be sure,no doubt played a role in trans- hsing.Until as recently as the administrative forming the society of feudal China to the point reforms of 1906,this idea was perpetuated in the where it could no longer get along without a writ- name of the highest governmental legal organ,the ten law. When this law appeared,however,it Hsing Pu or Ministry of Punishments. was used neither to uphold traditional religious A third term,lii,though very important in the values nor to protect private property. Rather, law codes of imperial times (221 B.C.onward), its primary purpose was political:that of imposing appears only rarely in a legal sense in earlier texts. tighter political controls upon a society which was As used in these codes,it is the technical designa- then losing its old cultural values and being drawn tion for the major articles into which the codes are by inexorable new forces along the long road lead- divided,and as such may be translated as"statute." ing eventually to universal empire. It can also,however,refer to the entire body of such statutes as a collective entity,in which case 3.ANCIENT CHINESE THEORIES OF THE it may conveniently,though a little loosely,be ORIGIN OF LAW rendered as "code."Aside from its legal signifi- Before entering upon this topic,a brief dis- cance,lii is also the technical designation for the cussion of terms is necessary.By far the most individual "pitch-pipes"(li),twelve in number important word in the Chinese legal vocabulary and of graduated lengths,which were the basis for is fa.Fa is the usual generic term for positive or the Chinese twelve-tone scale.Since the word written law as an abstraction(“law”or“the will not appear again in our discussion,there is no law"),but it may also be used in the plural to need here to go into the thorny question of how, mean separate“laws.”The word was already in from this acoustical milieu,lii came to acquire its common use before its appearance in legal con- legal connotation.21 texts.Its root meaning is that of a model,pattern, With these definitions behind us,let us now see or standard;hence of a method or procedure to be how the ancient Chinese viewed the origins of law. followed.From this root meaning comes the A notable feature of Chinese historical and philo- notion,basic in Chinese legal thinking,that fa is sophical thinking,apparent already in early times, a model or standard imposed from above,to which is its strongly secular tone.In general,it prefers the people must conform. to explain human events in terms of the rational Another important word,perhaps even more (or what seems to it to be the rational)than in common than fa in early legal references,is hsing, terms of the supernatural.A good example is the signifying "punishment"(or punishments),but fate suffered by Chinese mythology already in the more specifically“corporal punishment..” That early literature:in case after case,as we read this the latter is its primary meaning is indicated, literature,the fragmentary evidence suggests that among other things,by the inclusion in the written 21 Answers to this problem are suggested by Hulsewe, character for hsing of the graph meaning "knife." Remnants of Han Law (cited in note 12)1:pp.30-31, There is every reason to believe that such punish- and by Joseph Needham,Science and Civilisation in China (4 v.so far,New York,Cambridge University 20 See E.A.Speiser,"Early Law and Civilization," Press,1954-1962)2:pp.229 and 550-552;in the latter The Canadian Bar Review Oct.1953:863-877 (quotations work (pp.229,544 ff.,and elsewhere)the various mean- on pp.873 and 875). ings of fa are also discussed at considerable length. This content downloaded by the authorized user from 192.168.82.206 on Thu,15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions

VOL. 107, NO. 5, 1963] BASIC CONCEPTS OF CHINESE LAW 379 Mesopotamia, for example, early experienced a very considerable commercial development, reflec￾tions of which appear conspicuously in the Ham￾murabi code. Mesopotamian civilization, in the words of a specialist, was characterized by "the ubiquitous recognition of private property," and a concern for "the rights of the individual in rela￾tion to society and the cosmos." 20 The guess may be hazarded that in part, at least, Mesopotamian law may have arisen in response to this insistence upon private property and individual rights. Here again the contrast with China is instruc￾tive. For in China the initial stimulus for law was no more economic than it was religious. Economic growth, to be sure, no doubt played a role in trans￾forming the society of feudal China to the point where it could no longer get along without a writ￾ten law. When this law appeared, however, it was used neither to uphold traditional religious values nor to protect private property. Rather, its primary purpose was political: that of imposing tighter political controls upon a society which was then losing its old cultural values and being drawn by inexorable new forces along the long road lead￾ing eventually to universal empire. 3. ANCIENT CHINESE THEORIES OF THE ORIGIN OF LAW Before entering upon this topic, a brief dis￾cussion of terms is necessary. By far the most important word in the Chinese legal vocabulary is fa. Fa is the usual generic term for positive or written law as an abstraction ("law" or "the law"), but it may also be used in the plural to mean separate "laws." The word was already in common use before its appearance in legal con￾texts. Its root meaning is that of a model, pattern, or standard; hence of a method or procedure to be followed. From this root meaning comes the notion, basic in Chinese legal thinking, that fa is a model or standard imposed from above, to which the people must conform. Another important word, perhaps even more common than fa in early legal references, is hsing, signifying "punishment" (or punishments), but more specifically "corporal punishment." That the latter is its primary meaning is indicated, among other things, by the inclusion in the written character for hsing of the graph meaning "knife." There is every reason to believe that such punish- 20 See E. A. Speiser, "Early Law and Civilization," The Canadian Bar Rcz'iez Oct. 1953: 863-877 (quotations on pp. 873 and 875). ments as nose-cutting, leg-cutting, castration, and the like were current in China well before the en￾actment of any systems of written law (fa). Once written law came into existence, however, the meaning of hsing was extended to include not only the punishments per se, but also the written pro￾hibitions whose violation would result in these punishments. In this important secondary usage, therefore, hsing may be fairly understood in the sense of "penal law" (or laws). The frequency of its occurrence in the early legal passages-both alone and as an alternative for fa-is indicative of the antiquity of the Chinese view which sees writ￾ten law, fa, as primarily signifying penal law, hsing. Until as recently as the administrative reforms of 1906, this idea was perpetuated in the name of the highest governmental legal organ, the Hsing Pu or Ministry of Punishments. A third term, Iii, though very important in the law codes of imperial times (221 B.C. onward), appears only rarely in a legal sense in earlier texts. As used in these codes, it is the technical designa￾tion for the major articles into which the codes are divided, and as such may be translated as "statute." It can also, however, refer to the entire body of such statutes as a collective entity, in which case it may conveniently, though a little loosely, be rendered as "code." Aside from its legal signifi￾cance, lii is also the technical designation for the individual "pitch-pipes" (1X), twelve in number and of graduated lengths, which were the basis for the Chinese twelve-tone scale. Since the word will not appear again in our discussion, there is no need here to go into the thorny question of how, from this acoustical milieu, lii came to acquire its legal connotation.2' With these definitions behind us, let us now see how the ancient Chinese viewed the origins of law. A notable feature of Chinese historical and philo￾sophical thinking, apparent already in early times, is its strongly secular tone. In general, it prefers to explain human events in terms of the rational (or what seems to it to be the rational) than in terms of the supernatural. A good example is the fate suffered by Chinese mythology already in the early literature: in case after case, as we read this literature, the fragmentary evidence suggests that 21 Answers to this problem are suggested by Hulsewe, Remnants of Han Law (cited in note 12) 1: pp. 30-31, and by Joseph Needham, Science and Civilisation in China (4 v. so far, New York, Cambridge University Press, 1954-1962) 2: pp. 229 and 550-552; in the latter work (pp. 229, 544 ff., and elsewhere) the various mean￾ings of fa are also discussed at considerable length. This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions