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Ancient China’s Legal Tradition andLegal ThoughtZhang Jinfan aa Institute of Legal History, China University of Political Scienceand LawPublished online: 29 Apr 2013.

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Social Sciences in China, 2013Vol. 34, No. 2, 134-151, http://dx.doi.org/10.1080/02529203.2013.787226

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SPECIAL ISSUE: TRADITION: THINGS THAT COULD BE INTERPRETED

Ancient China’s Legal Tradition and Legal ThoughtZhang Jinfan

Institute of Legal History, China University of Political Science and Law

中国古代法制历史经过4000多年的发展而从未中断。在这个漫长的过程中，形成

了特有的法律传统，比如重农主义的法律传统、重刑轻民的法律传统、重伦常的伦理

法传统、多元一体的民族法传统、德礼为本的儒家化的法律传统，等等。这些法律传

统是以深厚的法文化的积淀为基础的，体现了中华民族的智慧和创造力。同时也受到

中国固有国情的影响——农业为主导的经济结构、专制主义的政治体制、多民族的国

家结构、儒家思想的统治地位、政治经济文化发展不平衡的社会状态等，也都给中国

古代的法律传统打上了深刻的烙印。

关键词：以农立国 专制主义 伦理法 血缘地缘关系 法文化

China’s pre-modern legal system enjoyed a continuous history of more than four thousand years. In the course of this long process, it developed distinctive legal traditions, including a tradition that prioritized agriculture, a stress on criminal law at the expense of civil law, an ethical orientation that stressed the five Confucian relationships, an approach to the legal traditions of different ethnic groups that embraced diversity in unity, and a Confucianized legal system based on virtue and ritual. These legal traditions were all based on the accretion of a deep-rooted legal culture which embodied the wisdom and creativity of the Chinese people. At the same time, they bore the stamp of China’s national conditions: an economic structure dominated by agriculture, an autocratic political system, a multi-ethnic national structure, the preeminent position of Confucian thought, the uneven development of politics, culture and the economy, etc.

Keywords: founding the country on agriculture, autocracy, ethics-based law, kinship ties and geographical proximity, legal culture

Ancient Chinese civilization is famous throughout the world, and the ancient Chinese legal system had an unbroken history of more than four thousand years. Particular legal regulations

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and particular systems were both handed down over the generations. The system’s sources can readily be traced and its continuity, systematic nature and completeness have no equal in any other ancient civilization. Because the ancient Chinese legal system grew from the soil of China’s inborn culture, its form and development bear the stamp of China’s national conditions, and it has staked out its own course in a distinctive and exemplary way.

Despite its early origin, the ancient Chinese legal system developed slowly. It was transmitted downwards but had no interchange, comparisons or absorption, so that it became conservative and isolationist. Before the First Opium War in 1840, China still had a completely feudal legal system. At that time people with breadth of vision such as Gong Zizhen, Wei Yuan, Bao Shichen and Feng Guifen had already started to attack the laws of the Qing and demand legal reform. That meant that the ancient Chinese legal system had already encountered a severe crisis in which “change would occur regardless of anyone’s wishes.”

Over the four thousand year history of the Chinese legal system, a unique legal tradition grew up, one that contained both a democratic strand that represented the wisdom of the Chinese people and a strand marked by conservatism and feudalism. However we look at it, tradition is formed by history and exists objectively; we can study it scientifically and absorb its democratic essence, but we cannot change it at will. Tradition can make us proud and confident, and provide us with incentives to build a new tradition.

I. Agriculture-related Laws as an Important Part of a Country Established on Agriculture

The Chinese people dwelt, multiplied and developed from the Yellow River basin. The loamy soil, mild weather and plentiful rainfall of this region facilitated primitive agriculture, and because of the isolation of the natural geographical environment, agriculture became the basic form of the economy. This meant that each dynasty’s rulers adopted the basic state policy of founding the state on agriculture. Thinkers and politicians of successive generations all dealt with this. In Chapter 14 of The Analects of Confucius, it recorded that “Yu and Ji personally wrought at the toils of husbandry, and they became possessors of the kingdom.” In Guanzi, it is written: “walking over the cultivated and uncultivated land, watching the plowing, and assessing agriculture, one can know whether the people of a country have enough to eat.”1 The same text also says: “What is called encouraging benefits, means benefiting farming; what is called doing away with evils, means prohibiting what is harmful to farming.”2 All the basic content of Legalist reforms was related to agricultural affairs, as in Li Kui’s suggestions of making full use of cultivated land for Duke Wen of Wei and the incentives Shang Yang’s reforms provided for farming and war. In the “Agriculture and War” chapter of The Book of Lord Shang, Shang Yang emphasized “developing agriculture and building up a powerful army to make the country prosperous.”3

1　Guanzi, “Eight Views.”2　Guanzi, “Maintaining the State in Good Order.”3　Shang Yang, “Agriculture and War.”

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With the rise of the Han dynasty, a policy of encouraging agriculture and discouraging commerce was adopted. It was decreed that the descendants of merchants “could not become officials” and “could not dress in silk or ride in a carriage.”4 Emperor Wen issued an edict saying, “Agriculture is the foundation of all under heaven and is what the people’s lives depend on.”5 In the Eastern Han, in “Attending to the Basics” in his Comments of a Recluse, Wang Fu expounded the importance of encouraging the fundamental and discouraging the subsidiary, saying “in terms of the principle of governance, nothing is better than discouraging the subsidiary and encouraging the fundamental, and nothing is worse than departing from the fundamental and attending to the subsidiary.”6 In his “Order to Garrisons to Grow Their Own Food,” Cao Cao dealt with the way emphasizing the basics contributed to the rise or decline of a state by summarizing historical experience: “The art of stabilizing the state lies in having a strong army and sufficient food. By giving priority to agriculture, Qin obtained the empire, and by having garrisons grow their own food, Emperor Wu of Han pacified the Western Regions. There were the good strategies of earlier generations.”7 The policy of establishing the state by developing agriculture, encouraging the fundamental and discouraging the subsidiary continued until the late Qing.

Together with successive dynasties’ policy of encouraging the fundamental and discouraging the subsidiary, the policy of regarding agriculture as the fundamental economic form of the state represented the particular national conditions of traditional China. It found legal expression in the fact that law related to agriculture was an important component of the legal structure: in judicial practice, laws were issued to limit litigation at times when agriculture demanded attention.

The Qin bamboo slips excavated at Yunmeng fully reflect the high proportion of legislation related to agriculture as early as 300s B.C.E., when emerged the Law on Cultivated Land, Law on Warehouses, and Law on Stables and Gardens. These are amazingly detailed: for example, the Law on Warehouses specifies, “Planting Seeds: two and two thirds dou of seeds should be used for every mu of the field of rice and hemp, one dou for standing rice grain and wheat, two thirds dou for millet and red beans, and half a dou for beans.”8 This specified the amount of seeds to be spread in every mu of land.

The most important part of agricultural legislation is land legislation. After China became a class society, all land was state-owned; what was called “All land under heaven belongs to the king.”9 In the 15th year of Duke Xuan of Lu, in the Spring and Autumn period, the Duke was “first to tax land,” indicating the state’s recognition of private ownership of land; the tax was levied based on the amount of cultivated land. After Qin unified the country, the government

4　Sima Qian, “The Book of Pingzhun.”5　Ban Gu, “Annals of Emperor Wen.”6　Wang Fu, “Attending to the Basics.”7　Chen Shou, “The Book of Wei.”8　Shuihudi Qin Tomb Bamboo Slips, p. 43.9　“North Mountain,” in “Xiaoya.”

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“ordered that land owners should report the amount of their land to the government,” and allowed private ownership nationwide. But once private ownership had been established, the phenomenon of land amalgamation appeared. At the time of Emperor Wu of the Han dynasty, it was said that “The land of the rich stretches for miles, while the poor have not enough land to stick an awl into.”10 After the Han, the Jin practiced a land occupation policy and the Sui and Tang dynasties adopted the equal fields system. During the reign of Emperor Gaozu of the Tang dynasty, his “Order on Cultivated Land” specified: “All adult and juvenile male laborers will be given one qing of land, the sick and disabled will be given forty mu of land, and widows and widowed concubines will be given thirty mu of land, and twenty more if they are doorkeepers. The land they receive is divided into two categories: twenty percent is inheritable and eighty percent is for subsistence. After the owner dies, the former goes to the heir; the latter is taken back by the government and reallocated.”11 In the year of 719, a regulation was issued specifying that “Difference principle is practiced on bestowing cultivated land: adult and juvenile male laborers will receive one qing of cultivated land (juveniles over the age eighteen will receive the same as adult males), old, sick and disabled males will receive forty mu of cultivated land, widows and widowed concubines will receive thirty mu of cultivated land, with those who are doorkeepers receiving half of what an adult male laborer receives. Cultivated land is of two kinds, one is heritable property, the other is for subsistence. With the land of adult male laborers, twenty percent is heritable and eighty percent is for subsistence.”12 The land equalization policy was made possible by the fact that at the beginning of the Tang dynasty, the state had at its disposal a large amount of unowned land due to the great peasant revolt at the end of the Sui dynasty. This led to a period of peace and prosperity, making possible the prosperity in Zhenguan and Kaiyuan periods. From the Song dynasty on, there was no land system and no limits on land annexation.

Closely related to the system of cultivated land was the law on wasteland reclamation. In the Song dynasty the policy of reclaiming wasteland was actively promoted to increase tax revenues and settle refugees. The law allowed settlers to own the newly cultivated land as their permanent property, and the amount of cultivated land was used as a criterion for examining the achievements of local officials. In the Ming and Qing dynasties the government also promoted the policy of encouraging wasteland reclamation, and evaluated local officials according to the amount of cultivated land. The criminal law punished those who abandoned their land without a reason. Newly cultivated land would also not be taxed for a certain number of years.

Moreover, laws governing irrigation works, which were closely related to agricultural production, were highly advanced. In the Han dynasty, the government set up a Water Ordinance. In the Tang dynasty, Miscellaneous Laws had a regulation stating that “watering

10　Ban Gu, “Treatise on Food and Money.”11　Noboru Niida, Addendum to Tang Dynasty Ordinances, p. 540.12　Ibid., p. 542.

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the land should start from the lower reaches of a river.”13 The laws of the Tang, Ming and Qing dynasties also contained regulations related to water conservancy and related punishments for offenders. For example, there were regulations concerning “Illegally breaching an embankment” and “Not repairing an embankment in a timely fashion” in the Laws and Precedents of the Great Qing. Its “Ministry of Works: Water Conservation” stated that “In the case of those who do not carry out repairs in river flood prevention activities or do not carry them out in a timely fashion, each supervising official will be flogged with a bamboo stick fifty times…. Those who do not repair embankments or do not repair them in a timely fashion will be flogged thirty times, and those whose actions cause all grain to be submerged in the fields will be flogged fifty times.”

Because agricultural production is seasonal, the ancient calendrical system was relatively advanced. As early as the Xia dynasty, the earliest calendar was issued for the needs of agricultural production. Ancient books wrote of “implementing the calendar of Xia,” illustrating the influence of calendrical system of the Xia dynasty on later generations. The lunisolar calendar of the Shang dynasty already clearly divided spring, summer, autumn and winter, and a special government official was placed in charge of the calendar. In the Zhou dynasty, the Zhou kings issued laws and decrees according to the farming seasons and seasonal changes; these are recorded in detail in the Book of Rites’ “Proceedings of Government in the Different Months.” The Qin issued the first nationwide calendrical system, the Zhuanxu Calendar. In the Han dynasty, the most outstanding achievement in this field was the making of the Taichu Calendar. Subsequently, the famous scientist Zu Chongzhi of the Northern and Southern dynasties made the Daming Calendar. The Tang produced the Wuyin Yuan Calendar and the Dayan Calendar, the Yuan produced the Shoushi Calendar and the Ming the Datong Calendar. In the Kangxi reign of the Qing dynasty, Western missionaries were employed to make the Kangxi Perpetual Calendar, and the famous calendar expert Mei Wending composed A General Examination of Ancient and Contemporary Calendars. To sum up, the ancient Chinese calendar began very early, had a rich content and was quite scientific, and was in the forefront of contemporary astronomical and calendrical systems across the world. That was related to the China’s particular conditions: the fact that agriculture had begun early and had been established as the basis of the country. For that reason, the law specified that people who made their own private calendars would be sentenced to death.

The basic state policy that agriculture was the foundation of the country had an important influence on the judicial practice. “Proceedings of Government in the Different Months” of the Book of Rites records that “in the second month of spring… Orders are given to the (proper) officers to examine the prisons; to remove fetters and handcuffs; that there shall be no unspecified infliction of the bastinado; and that efforts shall be made to stop criminal actions and litigations… In the first month of summer… they decide cases for which the punishments

13　Ibid., p. 785.

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are light; they make short work of small crimes, and liberate those who are in prison for slight offences … In the first month of autumn … orders are given to the proper officers to revise the laws and ordinances, to put the prisons in good repair, to provide handcuffs and fetters, to repress and stop villainy, to maintain a watch against crime and wickedness, and to endeavor to capture criminals. Orders are (also) given to the managers (of prisons) to look at wounds, examine sores, inspect broken limbs, and judge particularly of dislocations. The determination of cases, both criminal and civil, must be correct and just … In the second month of autumn…orders are given to the proper officers to revise with strict accuracy (the laws about) the various punishments. Beheading and (the other) capital executions must be according to (the crimes) without excess or defect.”14

The Tang dynasty, which had the reputation of having “the most complete historical records, decrees and regulations,” explicitly specified in its official regulations: “Lawsuits involving land, housing, marriage and debts are heard from the first day of the tenth month until the thirtieth day of the third month of the next year, and not outside those days. The only exceptions are if documents were lodged in advance or infringement claims against each other was involved.”15 The law explicitly specified a “system for limiting litigation in the agricultural season.” That order had a direct impact on the “Song Penal Code: Family and Marriage” which specified, under “Limitations on Cases involving Marriage and Land” that “all lawsuits involving land, housing, marriage and debts, with debts here referring to cases where the law allows someone to ask for justice, will be accepted from the first day of the tenth month until the thirtieth day of the first month of the following year, at which time cases will cease to be accepted. Cases should be settled by the thirtieth day of the third month. If they are not, the penalties should be held over and the case memorialized. If the case involved people’s infringement claims against each other or similar proceedings, but does not interfere with the peasants, then it can be accepted and judged at any time, without the time restrictions given above.” In the “Legislative articles from the Comprehensive Regulations” of the Yuan dynasty it was recorded that “from the first day of the tenth month until the first day of the third month of the following year, cases can be accepted; if a case involves many people and cannot be settled, it should wait until litigation is open again.” With regard to “not accepting a case for hearing,” the “Ministry of Justice: Lawsuits” in the Laws and Precedents of the Great Qing specified that “from the first day of the fourth month until the thirtieth day of the seventh month every year is the busiest time for agriculture. With cases among the people, serious offences such as plotting rebellion, rebelling, robbery, murder and bribery as well as cases involving deception and fraud, will be heard as usual provided there is substantial evidence. Minor cases involving households, marriage or fields, should not be accepted during this time. After the first day of the eighth month these cases can be heard. If minor cases are accepted during the busy time for farming, the governor should record that and impeach the official

14　“Proceedings of Government in the Different Months.”15　Noboru Niida, Addendum to Tang Dynasty Ordinances, p. 788.

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who heard the case.”Synthesizing the above, we can see that the high status accorded to agriculture and the

policy of making agriculture the foundation of the state determined the position occupied by agricultural legislation within legislation as a whole, as well as its impact on the judicial system. Due to the conservative self-sufficiency of the physiocratic economic form, legislation relating to agriculture was handed down through the generations. It was only when the country opened up during the late Qing that the capitalist economy took off and the tradition of encouraging agriculture and discouraging commerce finally disintegrated. The measures and regulations that ancient China adopted to enhance agricultural production in order to consolidate the basis of the country and ensure a plentiful supply of food played a positive role over quite a long period of time.

II. The Supreme Legislative and Judicial Power of Monarchs under the Autocratic System

After China entered into a class society and established the state, an autocratic system emerged centered on the ruler. This was an enduring system with roots in remote antiquity. In documents from the Shang and Zhou dynasties, “I, the one man” was the way the ruler referred to himself, symbolizing his possession of a position of supreme privilege. State activities related to military expeditions and sacrifices were called “affairs of the king,” to show that the king was the state and the two were one. On oracle bones, inscriptions such as “the king orders,” “the king commands” and “the king asks” appear frequently in the records of divination, showing that the significant affairs of the country would be decided by royal command. The ruler not only had supreme executive and military power, but also supreme legislative and judicial power.

The Qin dynasty unified the empire and established the imperial system. Thereafter, the autocratic form of government grew ever stronger in an upward spiral until the late Qing dynasty. Dong Zhongshu, the famous Han Confucian scholar, constructed an integrated system of politics and ethics using the theory of the “Three Cardinal Guides and Five Constant Virtues.” Song Confucians gave their blessing to the feudal order of autocratic centralism from the heights of divine principle, saying that what are called “(the relationships between) fathers and sons and rulers and ministers are axiomatic everywhere; there is nowhere between heaven and earth where one can escape from them.”16 They constructed the intellectual environment needed by autocracy through their ethical doctrine of “preserving heavenly principles and extinguishing human desires.”

Under the autocracy, legislative power was highly centralized in the court and the emperor. The statutory laws of the state were issued “by imperial decree,” and imperial orders, edicts, and commands were not only important components of the law but also had supreme legal

16　Cheng Hao and Cheng Yi, The Remnant Books of the Two Cheng Brothers, vol. 5.

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force; what we call “the ruler’s word is law.” He directed the operation of the organs of state. Since the ruler had complete control over legislation, there were no bodies in the country that possessed legislative power or were in charge of legislative affairs. Because the law was an instrument of governance and served to maintain the fortunes of the state, the ruler not only placed importance on the law of the state but also personally sponsored or participated in forming that law. For example, seeing that “If laws and regulations are insufficient, treacherous officials would use law for their own ends and apply differential standards to similar cases,”17 Emperor Xiaowen of the Northern Wei dynasty not only amended the law many times, but also drafted the revisions personally. History records that “Emperor Xiaowen used Chinese dominant customs to change the customs of his own people, he composed laws and regulations in his own hand, and if there were any doubtful points, he would decide the matter himself. Later generations praised him for this.”18 When drafting the Laws of the Ming dynasty, Zhu Yuanzhang, the first Ming emperor, ordered Li Shanchang and others “to provide him everyday with the drafted categories of penalty” so that “I can deliberate on them myself.”19 When, in the year of 1397, the Laws of the Ming dynasty was completed, Liu Weiqian, who was in charge of revising them, said in the “Memorial to the Emperor for Submitting the Laws of the Ming,” “When each chapter was ready, it was copied, memorialized and posted on the wall of the west verandah; the emperor would rule on them in his own hand… he would give them deep thought; looking up, he took into account the heavenly principles, looking down he took into account human feelings; he set standards that will last for a hundred generations.”

Under an autocracy, imperial power is higher than law. Not only are rulers are not restrained by any law, but they can freely change established laws. Du Zhou, a Commandant of Justice in the Han dynasty, said: “What the former rulers approved was written down as statutes; what the later rulers approved was written down as ordinances. What is now is what is right, so what’s the use of the old laws?”20 But enlightened rulers would observe and respect the law for the sake of the country’s long-term peace and order. In the early reign of the Emperor Taizong of Tang, he insisted that “If anyone commits a crime, it will be decided by law,” a statement praised by succeeding generations. Emperor Wen of the Han dynasty accepted advice from Zhang Shizhi and the Emperor Taizong of Tang accepted advice from Dai Zhou; these are famous historical examples of obeying and respecting the law.

The emperor possessed not only supreme legislative power, but also supreme judicial power. In particular, he had the power to decide on capital punishment. Tang procedure required that the death sentence could be carried out only after three or five memorials had gone up to the throne and the emperor’s consent had been received. Even then, it was

17　Wei Shou, “Records of Punishments.”18　Cheng Shude, Research on the Laws of the Nine Dynasties, p. 333.19　Zhang Tingyu et al., “Records of Punishments and Laws.”20　Ban Gu, “Biography of Du Zhou.”

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necessary to wait a further three days, otherwise the official in charge would be punished: “Anyone who executes a criminal sentenced to death without waiting for the memorials to be sent up and the emperor’s order to come down will be exiled two thousand li away. Even if the memorial recommends the death sentence, officials should wait for three days before carrying out the sentence. Anyone who carries it out before the three days are up will be imprisoned for a year; anyone who waits longer than three days will be flogged one hundred times for a delay of one day, and twice that number for a delay of two days.”21 Even in the last feudal dynasty, the Qing, the Emperors Kangxi and Qianlong endeavored to achieve judicial justice to maintain the stability of society. An edict of the fortieth year of the Kangxi reign (1701), reveals the importance the emperor attached to the autumn assizes and his criticism of the Board of Punishments: “I have carefully read the cases of serious crimes in the autumn assizes. There are many mistakes in the wording of the judgments which were not picked up by the court. The Board of Punishments is extremely careless, and I suggest that they be punished.”22 On the twentieth day of the fifth month of the third year of the Yongzheng reign (1725), Emperor Yongzheng said in an imperial edict: “Since I have taken office, I have carefully meted out punishment, and every time I come across legal officials memorializing on those recently found guilty, I carefully check them more than once for fear that there is something that was not agreed to.”23 In the fourteenth year of the Qianlong reign (1749), the Qianlong Emperor issued an edict changing the triple memorials at the autumn assizes to a single memorial, saying emphatically that “Every province memorialized three times at the autumn assizes in order to be careful with the people’s lives, and in ancient times, there was a custom of criticizing three times and forgiving three times, which meant they would examine the case carefully, not overlooking the slightest thing, before executing someone. However, that does not mean it is necessary to examine each case three times. Whenever criminals are about be executed, I put the register of their confessions next to me, inspect it carefully five or six times until there isn’t the slightest doubt, and when the time comes that I have to decide, I will definitely discuss the matter with grand secretaries, etc., and consider the matter again and again before deciding. This is more than ‘three times.’ If three memorials are sent up, the officials in charge will report hastily and there will be errors. Moreover because of the time limit they frequently do not check the full record. Hereafter, each province will only send one memorial.”24

The main reason emperors were very careful about the death sentence was the importance of human life. If hearings and verdicts were not appropriate, disturbances might break out among the people. However, this did not preclude an emperor’s executing people at will. Emperor Wen of the Sui dynasty once “executed people in the sixth month of the year,”

21　“Memorializing the Emperor Regarding Criminals Awaiting Execution,” in “On Criminal Cases.”22　Zhao Erxun et al., “Biography of Emperor Kangxi.”23　Wu Tan, A General Survey of the Laws and Precedents of the Qing Dynasty, vol. 1.24　Imperially Endorsed Regulations, vol. 14.

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disregarding the tradition of carrying out executions in the autumn and winter. The Vice Minister of Justice Zhao Chuo argued, “In the summer months, heaven and earth are in the season of growth, and it is not appropriate to carry out executions.” But the Emperor replied, “Even though the sixth month is the month of growth, there are always thunderbolts at this time, which means that the Way of the Heaven displays its anger even when the sun is hot. I follow Heaven. What can be wrong?” “So he carried out the executions.”25

The autocratic form of government determined the unbroken feudal legal tradition, and in this legal tradition, because “power outranked law,” there was a conflict between power and law. It has to be said that enlightened emperors who respected and followed the law were few, and in any case they did not change the basic fact that law emanated from the ruler and depended on power. In most cases, rulers used their supreme power to ride roughshod over the law.

Within this legal tradition, because criminal offenses that endangered national security were emphasized, there was an inclination to emphasize criminal law and overlook civil law. Criminal offenses that endangered the country and imperial power were listed as the “ten evils,” and violators would be heavily punished without mercy. Civil cases such as land, dwellings, marriages and inheritance were treated as trivial matters which could not be ranked alongside major criminal offenses. This emphasis on criminal law at the expense of civil law delayed the development of the latter, which was only codified when the law was revised in the late Qing dynasty.

Shackled by autocratic cultural and intellectual policies, this legal tradition lacked any free and open inquiry into jurisprudence. From the Qin and Han dynasties on, law was mainly concerned with annotating and interpreting existing legal codes. The wide-ranging open debate of the pre-Qin Legalists no longer existed.

III. An Ethically Based Legal System That Prioritized Confucian Human Relationships

As ancient China moved along the path from family to state and entered a class society, the kinship ties of the patriarchal clan system strongly influenced many aspects of society and the state. In particular, the high degree of integration of patriarchy and politics gave rise to a unique system in which the family and the state were one and relationship and rank were joined together. As early as the Western Zhou dynasty, patriarchal kinship ties, which mandated honor to those who should be honored and closeness to one’s kin, had already been systematized, and political system acquired a strongly patriarchal character. The family was a microcosm of the state and the state was a magnification of the family. The formation, political structure and activities of the state were all based on the twofold principle of the nobility’s kinship and political ties. After China entered the stage of feudalism, the political clout of the patriarchal clan system weakened, but its spirit and principles still had a strong binding

25　Wei Zheng et al., “Records of Punishments and Laws.”

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force. This was especially so in the theoretical teachings of the Confucian Three Cardinal Guides and Five Constant Virtues, which defined the normative human relationships: ruler and subject, father and son, husband and wife, older and younger brother, and friend and friend. As the most important relationships in society, these received the double protection of law and morality. Against the historical background of prioritizing the normative human relationships of Confucianism, ethically based law played an important role in the whole legal system.

The ethical law of the feudal era underwent a development from simplicity to complexity. From the Han dynasty, when feudal law began to be influenced by Confucianism, it was used to maintain the patriarchal family, to adjust relationships between fathers and sons, husbands and wives, and older and younger brothers, and to establish the dominant position of paternal and husbandly authority, in the hope of achieving harmonious relationships characterized by “benevolence from the father, filial piety from the son; gentleness from the elder brother, obedience from the younger; uprightness from the husband, submission from the wife; benevolence from elders, deference from juniors.”26 By the time of the Jin dynasty, the law was increasingly influenced by Confucianism. Emperor Wu of the Jin dynasty composed and amended the Taishi Law, the first Confucianized legal code in China’s feudal society. It “strictly protected Confucianism,” took ritual as its basis and strictly marked people’s status. Thus it established the moral principles of the patriarchal system as part of the statutory law of the state. For example, “determining punishments based on the status and kinship of people involved” was officially written into the law. The Tang dynasty was the time when ethically based law that took the family as its standard was made complete. The Tang Code: With a Commentary served as the model for feudal law in China. It inherited and developed the principles and regulations of ethically based law handed down since the time of the Qin and Han dynasties, and marked the maturing of family-centered ethically based law. Nearly all the fundamental elements of patriarchal power and clan power were written into law. Crimes that gravely injured familial ethics and morality, such as beating or killing one’s parents, being unfilial, unjust and inharmonious, causing civil strife, etc., were listed as the ten most serious crimes. From the Song to the Qing, many famous and influential clans composed their family rules and clan regulations to restrain their descendants. Because the requirements of these rules and regulations were consistent with national statutes, the government acknowledged their legitimacy, and this undoubtedly provided a further legal guarantee of the normative Confucian relationships and moral duties.

From the above, we can see that the main content of ethically based law was to use legal forms to affirm the order of seniority within the clan according to the normative Confucian relationships, to establish the dominant role of the head of the family and head of the clan, and to regulate the relationships of rights and obligations of clan members. Such law functioned to unify legal and moral obligations. With the support of morality, the law tended to be stable and encountered less resistance to its application, while morality gained greater binding

26　“The Conveyance of Rites.”

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force because of the coercive guarantee provided by law. Ancient China’s ethically based legal system was an indigenous system that grew from the Chinese people and exhibited the distinctive characteristics of Chinese legal culture, a phenomenon rarely seen in legal culture worldwide. This relates to the self-sufficiency of agriculture, because a family is actually a production unit, and patriarchal power is needed for reproduction. Confucianism maintained that “ In heaven there are not two suns; in a country there are not two kings; in the seasonal sacrifices, and those to Heaven and Earth, there are not two who occupy the highest place of honor.”27 This offered spiritual support to ethically based law, and the main content of such law was in fact the legal form of the moral norms put forward by Confucianism. The experience of governing acquired by successive generations of rulers meant that they realized the special role of patriarchal and clan power in maintaining the country’s stability, so they took great pains to implement the task of consolidating the feudal state through the cellular organizations making up society, namely families. In short, there were indeed social, historical and cultural sources behind the continuation of ethically based ancient Chinese law over thousands of years and its development into an important tradition.

IV. Kinship Ties and Geographical Proximity That Provided Space for Customary Law

Under the ancient Chinese patriarchal clan system, members of a clan tended to live together. The same village would usually be occupied by people in the same clan and with the same surname, who would build their economic life jointly over a long period, thus ensuring the clan’s fruitfulness and development. Moreover, the conservatism of agricultural production gave rise to the idea of being attached to one’s native place and unwilling to leave it, so people lived in the same region for generations. These place-based relationships, in which several generations lived next to each other, were usually connected to stable kinship ties. The famous sociologist Fei Xiaotong said “Kinship ties are a stable force, and in stable societies localities are no more than a projection of kinship ties; they cannot be separated.”28 If clan members were also neighbors, it would be easy for them to form a stable community. For example, the Collection of Enlightened Judgments by Celebrated Judges of the Song dynasty says, “Generally speaking, neighbors in rural areas should live together harmoniously. If they are harmonious, they can exchange what they have and supplement what they lack, help each other in emergencies and support the sick, so that both sides can benefit from the arrangement.”29

Ties of blood and place are also connected with the unbalanced development of politics and the economy in ancient China. Almost all the villages with stable ties of this kind were in underdeveloped areas with little population mobility or in ethnic minority areas. Such remote

27　“Questions of Zengzi.”28　Fei Xiaotong, Earthbound China: System of Reproduction, p. 70. 29　“Neighborhood.”

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villages or minority areas were usually places where national laws could not be enforced, so they offered space for the existence of common law.

In economically backward and isolated villages and minority areas, questions of how to maintain production and daily life, solve conflicts and disputes, punish property violations and personal injuries, etc., all relied on fixed conventions. Some of these rules constituted written customary law, some were unwritten customs. Their form was determined by the clan and family rules, local regulations set by villagers, or the teachings of deceased ancestors. All of these had considerable authority and binding force, so they were long able to survive and develop. Customary law and customs of this kind were practiced for a long time; in fact, they are a component of the ancient legal system that cannot be ignored. For this very reason, when the late Qing government began to draft its civil and commercial law, it carried out a large-scale survey of such customs.

In addition, stable ties of blood and place were conducive to social harmony. This can be seen in the use of mediation to solve disputes. Beginning in the Han dynasty, mediation was used to settle civil cases and minor criminal cases, and because it helped reduce the number of lawsuits and increase social harmony, it continued to develop. In the Song dynasty, mediation and withdrawal of lawsuits are often seen in historical records. In the Qing dynasty, meditation was continuously normalized, and even though it did not appear in the legal codes, it was still practiced by local officials. Qing mediation fell into two categories: mediation in court, practiced by governors and county magistrates, and mediation outside court. The latter can be divided into clan mediation, mediation by the quasi-official town chief, and mediation by neighbors. Since the mediator and those involved in the dispute were either related or were neighbors, and they were familiar with each other, mediation was facilitated by mediators’ knowledge of the issues and ability to prevent lawsuits. Methods of mediation were varied, as were the grounds for mediation, but none could run counter to national laws, nor were people allowed to opportunistically instigate lawsuits. Because mediation reduced the burden of lawsuits on the parties concerned, facilitated resolution of the point at issue, and could be counted as meritorious official performance on the part of the governor or the county magistrate, it was promoted extensively. If mediation did not solve the problem, the parties could still file a lawsuit in the courts.

In short, stable ties of kinship and locality offered room for the application of common law and customs. They became an indispensable supplement to national statutory law and also facilitated the use of mediation in the administration of justice, thereby attaining the goal of facilitating social harmony.

V. A Legal Culture of Unity in Diversity in a United Multi-ethnic Country

As early as the second century B.C.E., the state of Qin annexed six other states and formed a unified country composed of multiple minorities. Since that time, China’s territory and her

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material and spiritual civilization have been created and developed by the different peoples of China together. This includes the creation of China’s legal culture.

The period from remote antiquity to pre-Qin China saw the beginning of the enterprise of intermingling and unifying various Chinese ethnic groups. The Han Chinese, who formed the main body, intermingled with what the old histories called the eastern, southern, western and northern “barbarians” (i.e., the Yi, Man, Rong and Di), etc., forming a national community of some size. It was due to the success of this intermingling that that the unified and prosperous feudal empires of the Qin and Han came into being. This process involved the initial blending of the legal wisdom of each ethnic group. History records that before the Chinese created laws, the San Miao, who were active in the Yangzi River basin, had already made laws, so there was the saying: “The Miao people did not use the power of goodness, but rather the restraint of punishments. They made the five punishments mechanisms of oppression, calling them laws. They slaughtered the innocent, and were also the first to employ the extremes of cutting off the nose, cutting off the ears, castration, and branding. All who became subject to those punishments were dealt with without distinction, no leniency being given even in extenuating circumstances.”30 Ancient writings have been confirmed by archeological evidence. The areas where the San Miao were active were better suited to primitive agriculture than the Yellow River basin of the Han Chinese. Because of this, private property and the division between rich and poor appeared among them very early. Du Yu’s commentary to Zuo Zhuan notes that, “The mythical beast Tao symbolizes greed for wealth and the mythical beast Tie symbolizes gluttony; these are embodied in the San Miao people.”31 To suppress the resistance of the exploited, the earliest punishments emerged. Later the Yellow Emperor (Huangdi) and the Flame Emperor (Yandi) defeated the people of the San Miao. They extinguished their clans but adopted their punishments. On the basis of the San Miao system of punishments developed the five punishments used in the slave societies of the Xia, Shang and Zhou dynasties and all the way up to the early Han. The punishments comprised tattooing the face, cutting off the nose, cutting off the feet or toes, castration, and the death penalty. This proves that early Chinese legal civilization is the result of the blending of the legal wisdom of different ethnic groups.

In the later years of the Western Jin dynasty, “the immigration of the five nomadic northern peoples” began. To the big family of the Chinese people were joined peoples such as the Xiongnu, Xianbei, Di, Qiang and Jie. At the same time, the legislation of ethnic groups was highly developed. In particular, the Northern Wei dynasty under the Xianbei made a swift transition from customary law to written law. With the help of Han Chinese thinkers and jurists, and taking “regularizing people’s behaviors through the law and leading them through ritual”32 as their guiding thought, the Northern Wei issued the famous Taihe Law in the year of 481.

30　“Marquis Lü on Punishments.”31　Kong Yingda et al., “The 18th Year of Duke Wen.”32　Wei Shou, “Records of Punishments.”

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This law not only merged the legal thought and legislative achievements of Confucian legal thinking from the Han, Wei and Jin dynasties, but also retained certain aspects of the old system of the Northern Wei, and hence can be regarded as the product of the great intermingling of the nomadic and agricultural legal cultures. After the Northern Wei, there is a clear line of descent from the layout and system of punishment of the Northern Qi Law to the legal systems of the Sui and Tang dynasties. It was only because of the unrelenting efforts of the different ethnic groups to create legal systems and exchange legal cultures that the mature legal systems of the Sui and Tang developed.

Under the Sui and the Tang, minorities who held political power on the boundaries of China, such as the Tubo, Turks, Nanzhao, etc., all had their own effective legal systems. Although these laws had a strong local character and were mixed with minority customs and religious regulations, it cannot be denied that all of them are important components of Chinese legal civilization, and all represent each minority’s high regard, thought and creativity in relation to the legal system.

The Song dynasty faced the most issues related to other ethnic groups. The Song rulers attached considerable importance to the use of legal measures in regulating their dealings with the Fanzu (foreign peoples) of the northwest, making laws and regulations such as the Law on Foreign Officials, Law on Foreign Soldiers, Law on Foreign Laborers, Law on Tea and Horses, etc. During the Song the Khitan, Tanguts and Jurchen successively rose to power and established the Liao, Jin and Western Xia dynasties respectively. These dynasties crafted the New Regulations in the Chongxi Era (Liao), the Law of the Taihe Reign (Jin), and the Newly Revised Laws and Revised Regulations of the Tiansheng Reign (Western xia), etc.

The Song dynasty was a period of ethnic antagonism and conflict but at the same time, one of intermixing between different peoples. In particular, legislation by non-Han peoples enjoyed a period of unprecedented development, resulting in a new product influenced by the legal culture of the Han Chinese of the central plains. It constituted a special component of Chinese legal civilization and became the historical source for the construction of the legal system of the following Yuan dynasty.

The Yuan dynasty established nationwide unified political power in which the Mongol minority constituted the main force and leadership was in the hands of the Mongol aristocracy. On the basis of the legacy of Tang, Song and Jin laws, and with the reference to the Mongol system, a dynastic legal system with certain Mongol features grew up. Among them were distinctive forms of legislation, changes in the system of criminal law, emphasis on the supervisory system, development of civil litigation, etc.

When the Qing dynasty was first developing, before the Manchus invaded through the Shanhai Pass, its rulers noted and absorbed the advanced Ming legal system. They established the Later Jin (Qing) legal system and developed a legislative approach involving “making reference to the Han and considering the Jin” with the help of their Han Chinese officials. In the sixth year of the Chongde reign (1633), Ning Wanwo, the minister in charge of civil

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affairs, proposed “Making reference to the Han and considering the Jin, with attentive planning, we should craft a Jin legal code on the scale demanded by the present.”33 The phrase “making reference to the Han and considering the Jin” was how the Qing emperor Huang Taiji summed up actively absorbing the legal system of the Ming dynasty; it constituted the guiding thought underlying the blending of the legal cultures of different peoples.

After expanding into the interior of China, the Qing promoted the legislative approach of “making reference to the Han and considering the Jin” nationwide. Laws of the Great Qing with Collected Commentaries and Appended Precedents, from the third year of the Shunzhi reign, is almost a reprint of Laws of the Ming dynasty. As the exchange of legal culture between the Manchu and the Han deepened, Laws and Precedents of the Great Qing, revised in the fifth year of the Qianlong reign (1740), essentially became the orthodox feudal legal canon in the same way as Tang and Ming laws earlier; the only exception was certain special regulations that confirmed Manchu rights and interests.

Here we should especially note that the Qing government, in which the Manchu nobility was the main force, strongly emphasized adapting legislation for the minority areas. It formulated the famous Rules for the Ministry of Minority Affairs, Rules for the Hui Minority Border Regions, Tibet Statutes, Ordinances for the Miao Border Regions, etc. This represents the culmination of legislation for China’s ethnic minorities and enriched Chinese legal culture.

In brief, both Han Chinese and non-Han ethnic groups have made their own contribution to the development of the Chinese legal civilization. Each member of the big family of China’s different peoples is open-minded, and interchange between their different legal cultures has been followed by amalgamation, resulting in the ultimate enrichment of Chinese legal culture in which the Han Chinese dominate. It can be seen that the principle of unity in diversity characterizes both the formation of Chinese legal culture and its later development. This is primarily because some minorities moved from a nomadic or hunting and fishing culture to an agricultural culture, thus establishing an economic basis for a legal culture of unity in diversity. Second, the unified and centralized state offered the political conditions for such a legal culture. Third, Han legal culture was not only advanced and all-embracing but showed strong and enduring powers of cohesion, amalgamation and assimilation Non-Han legal cultures would eventually become commingled with the legal culture dominated by the Han Chinese and guided by Confucianism, becoming an important constituent of Chinese legal culture.

Some capable politicians and thinkers also played a role in advancing this process. For example, Emperor Xiaowen of the Northern Wei took great pains, as mentioned above, to develop the legal system. Without his efforts, construction of the Northern dynasties’ legal system would not have been possible.

Emperor Shizu of the Jin systematically revised the law during his reign, completing the twelve volumes and 1190 items of the Revised Statutes of the Dading Reign. This legal

33　Ning Wanwo, “Memorial Urging Changes in the Collected Statutes of the Ming Dynasty to Establish Six Ministries.”

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code had drawn on Han Chinese laws because the latter was widely adopted in practice.34 In the reign of Emperor Zhangzong of the Jin dynasty, a time witnessing socio-economic development, stable politics, and ethnic intermingling, Confucian-centered Han culture was widely accepted by the Jurchens. Emperor Zhangzong implemented a policy of thorough conversion to the Han culture. He summed up the experience of the legal system, and, on the basis of weighing the advantages and disadvantages of the Han and non-Han laws, tended to introduce more Tang and Song laws. In so doing, he created the glorious legal civilization of the Jin dynasty.

At the recommendation of his Han Chinese ministers, Emperor Shizu of the Mongol Yuan dynasty explicitly proclaimed, in an edict on his ascent to the throne, that “following ancestral injunctions but being flexible” would be his overall governing strategy. Here, “following ancestral injunctions” refers to “examining the regulations of our sage ancestors,” and “being flexible” refers to “referring to the systems laid down by previous (Han Chinese) dynasties.”35 From this developed the strikingly distinctive legal system of the Yuan dynasty.

In the Chinese people’s legal culture of unity in diversity, diversity not only does not obstruct unity but is a component of unity; similarly, unity does not negate the value of diversity, but on the contrary recognizes and absorbs diversity to varying extents. The legal culture of unity in diversity is suited to the reality of Chinese conditions and is conducive to giving free reign to spurring the initiative of every ethnic group, thus reinforcing the harmony of this big family of different ethnic groups and consolidating the ruling of a united multi-ethnic nation.

Notes on Contributor

Zhang Jinfan is Professor and Doctoral Supervisor of the China University of Political Science and Law and Honorary President of the Institute of Legal History, China University of Political Science and Law. His main research fields are history of the Chinese legal system and Chinese legal culture. His representative works include: Late Qing and Republican Chinese Society and Legal Civilization (中国近代社会与法制文明, Beijing: China University of Political Science and Law Press, 2003), The Constitutional History of China (中国宪法史, Changchun: Jilin People’s Publishing House, 2004), and The History of Chinese Legal Civilization (中华法制文明史, Beijing: Law Press · China, 2013), among others. E-mail: ydd-ld@163.com.

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34　Liu Qi, Record of Returning Home to Retire, vol. 12.35　Song Lian et al., “Biography of Emperor Shizu,” Part 2.

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—Revised by Sally Borthwick

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