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1 Dynastic Chinese Law J. W. Head (Kansas University) – Trento – March 2009 Introduction Buon giorno œ and apologies for not speaking Italian Some themes developed so far by Prof. Castellucci (as I interpret them): • Modello Pluralista œ not just civil / common / socialist / other • Stratificazione di tradizioni giuridiche in several Asian countries œ indigenous / philosophical + Islam + occidental (colonization) • Valori Asiatica (Asian Values) œ especially communitarian outlook • Distinctions between: rule of man / rule by law / rule of law These themes apply also to our study of Chinese law. • • • • Readings / Study Questions / Class Sessions (team teaching) Foundations of Dynastic Chinese Law SQ # 3 How old is the Chinese legal tradition? œ How old is the civil law tradition? (European law? Italian law?) œ three possible starting dates for the Chinese legal tradition: ≈ 1000 BCE [Before Common Era] 536 BCE ≈ 124 BCE œ two —lives“ of Roman (civil) law; three —lives“ of Chinese law œ a unique record of (legal) continuity œ how to make sense of Chinese history? ... the dynastic cycle. (see Readings page 6) 2 SQ # 1 About when in Chinese history did each of these dynasties occur? See Reading, pages 3, 4, 5 œ Xia œ Shang I (a) Zhou (b) Qin œ œ œ œ œ œ (c) Han œ Sui II (d) Tang (e) Song (f) Yüan (g) Ming (h) Qing œ œ œ œ œ œ œ Republic / PRC III SQ # 2 What sort of animals sing their song quite happily, and what animals just quarrel relentlessly? NOTE: monkey = scimmia SQ # 4 What role did each of these persons play in the early development of the Chinese legal tradition? (a) the “Duke of Chou” œ or —Zhou“ (digression on language) œ developed l Ⓕ (further digression on language) (see Castelluci on fa zhi ) (b) Confucius 500s BCE (c) Mengzi and Xunzi ≈ 325 œ 250 BCE (d) Shang Yang 400s BCE (e) Qin Shi Huangdi 200s BCE (f) Li Si in power 200s BCE 3 SQ # 5 What is the meaning of each of these terms? (a) Confucianism numerous variations & evolutions œ for Confucius (drawing from Ⓕand Duke of Zhou): A social and secular ideology based on an optimistic and egalitarian view of human nature and emphasizing the need for virtuous and educated leaders to govern the society (and its people) by enlightened example, following a strict (essentially unwritten) code of behavior that centered on the observance of ritual and respect for certain fundamental social relationships, such as that between father and son and that between emperor and subject. [ —rule by man“ / —rule by virtue“ ? ] œ for Mengzi and Xunzi (drawing from Confucius): * differing views on human nature * less egalitarian (static strict hierarchy) * including the use of punishment œ for later Confucianists -- see below (b) Legalism A governmental ideology based on a pessimistic (but still egalitarian) view of human nature and emphasizing the need for strong leaders applying firm and effective punishments to individuals in society. (See page 14.) [—rule by law“?] (c) xing [or hsing] punishment œ see page 9, Box #I-3 (d) l Ⓕœ see page 9, Box #I-3 (changes over time) see also pages 10-11 (for Confucius) (e) f œ see page 9, Box #I-3 (f) lü œ see page 9, Box #I-3 (g) lì œ see page 9, Box #I-3 4 SQ # 6 What was the key aim of the Legalists, and how did it motivate them to insist on the use of law as a means of social control? order (stability) —law“ f xing SQ # 9 What were the main values and aims of the Confucianists? order (harmony) SQ # 7 What (and when) was the earliest known Chinese officially-promulgated written law in China – something we might (with a stretch) call a “code”? œ differing views, but surely 536 BC œ xing shu, on bronze tripod vessels SQ # 8 On what grounds did some leaders in early Chinese society object to the promulgation of written laws, such as the xíng sh ordered inscribed on bronze tripod vessels in the sixth century BCE? SQ # 10 Why would members of traditional Chinese society be especially concerned about violations or disruptions of the social order? 5 SQ # 11 What is the relation between law and religion in traditional Chinese? SQ # 12 What is the origin of law, according to Chinese legend? 6from Bodde & Morris, on dynastic Chinese law] A striking feature of the early written law of several major civilizations of antiquity has been its close association with religion. Not all of these civilizations, to be sure, actually produced systems of written law. W hen they did so, however, they commonly signalized this achievement by attributing, at least initially, a divine origin to the law they used œ an origin signifying that such law had been given or revealed to mankind by a god or gods. [Bodde & Morris then make reference to Judaic and Islamic law, and also to the world‘s earliest written law as know to us from Mesopotamia œ specifically, the famed laws of Hammurabi (ca. 1728- 1686 B.C.), which were depicted at the time as having been received by Hammurabi from Shamash, god of justice. Bodde & Morris also cite Plato, Cicero, Blackstone for the proposition that law derives from god. ] The contrast [between] the Chinese attitude [and the belief in those other major civilizations regarding] a divine origin of the law is indeed striking, for in China no one at any time has ever hinted that any kind of written law œ even the best written law œ could have had a divine origin. [Instead,] the ancient Chinese viewed the origins of law [quite differently]. [In all of Chinese law, as in Chinese philosophy,] the atmosphere is secular. W hat is really arresting, however, especially when we remember the honored status of law in other civilizations, is the overt hostility with which its appearance is initially greeted in China œ seemingly not only as a violation of human morality, but perhaps even of the total cosmic order. An excellent example of this attitude is a story . providing probably the earliest explanation for the origin of fa, written law. [The story] attributes the invention of fa neither to a Chinese sage- king or even to a Chinese at all, but rather to a —barbarian“ people, the Miao, [who were] alleged to have flourished during the . twenty-third century B.C. [and whose use of law to impose cruel punishments on innocent people led ultimately to the extermination of the Miao, so that they had no descendents. 6 SQ # 13 Which side of the debate – the Confucianists or the Legalists – won that debate in 221 BCE? - see page 15 Qin Shi Huang-di Li Si harsh punishments burning of classical Confucianist literature SQ # 14 Why might we accurately refer to the “Legalist triumph but Confucianization of the law” in the Qin-Han period? - see page 16 collapse of the Qin dynasty establishment of the Han dynasty Gaozu (Liu Bang) œ —horseback“ but New Analects reintroduction of Confucian values but with the promulgation of a written code Emperor W udi (ruled 141-87 BCE) repealed the edict on book-burning 124 BCE œ founding of the imperial academy SQ # 15 What role did Dong Zhongshu play in the development of the Chinese legal tradition? - see page 18: Confucianism gained eminence during the Han period because of the meeting of minds of a monarch in search of a clear mandate from Heaven and a scholar with an ambition to dominate the current ideologies, which included earlier Legalist, Taoist and Confucian theories. Their formula was simple œ they interpreted the past to suit the present. The scholar Tung Chung-shu [Dong Zhongshu], hand-picked in an examination by Emperor W u [W udi] soon after his ascension to the throne [in 141 BCE], claimed authority from the Confucian ideal of a perfect social order and from the cosmological theory of the Book of Changes and the Yin-yang Five Elements School to support his own concept of the —Oneness of Heaven and Man.“ 7 - incorporation and accommodation of other influences: Daoism œ a philosophy of passivity (—action by inaction“) yin and yang forces (complementary negative and positive) concept of the five elements (wood, fire, soil, metal, water) significance of the number 3 ... in short, CCCC: a chaotic collection of competing concepts SQ # 16 What was “Imperial Confucianism”? - the —rationalization“ of the CCCC into a unified theory - see pages 19-20 - the important role of the Confucianist (legal) scholars SQ # 17 What were the most important codes in the Chinese legal tradition? - xing shu ? [536 BCE] (lost) - Li Kui‘s Canon of Laws? [400 BCE] (lost, or imaginary) - Qin Code (state, then empire) (a few fragments) - Han Code [200 BCE & later] (fragments & reports) - Sui Code [581 & 583 CE] (lost, but reports) - Tang Code [617 & 653 CE] (complete & translated) Tang Code – divided into 12 books, 30 chapters, and 502 articles. The names of the 12 books are: 1. General Principles 2. The Imperial Guard and Prohibitions 3. Administrative Regulations 4. The Household and Marriage 5. The Public Stables and Granaries 6. Unauthorized Levies 7. Violence and Robbery 8. Assaults and Accusations 9. Fraud and Counterfeit 10. Miscellaneous Articles 11. Arrest and Flight 12. Judgment and Prison - Song Code 8 - Yüan Laws (not —Code“ as such) - Ming Code - Qing Code SQ # 18 How much continuity was there from the codes of one dynasty to another? SQ # 19 How did the approach taken by the second “alien dynasty” (the Qing) differ from the approach taken by the first “alien dynasty” (the Yüan), in terms of the law? SQ # 20 What were some key features and characteristics of the dynastic Chinese law codes, and how much “civil law” did they cover? - focus on prescribed punishment for specified acts - — if œ then “ statements - addressed to imperial bureaucracy, esp.
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