《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

380 DERK BODDE [PROC.AMER.PHIL.SOC. what at one time must have been the gods,demi- sage-king nor even to a Chinese at all,but rather gods,or monsters of full-fledged myth have since to a"barbarian"people,the Miao,alleged to have become "euhemerized"or "historicized"into the flourished during the reign of the (legendary) denatured sage-kings,heroes,or rebels of pseudo- sage Shun (trad.twenty-third century B.c.). history.22 Thus the key sentence tells us:"The Miao people When we turn to the legal sphere,therefore,it made no use of spiritual cultivation,but controlled should not surprise us that here too the atmos- by means of punishments (hsing),creating the phere is entirely secular.What is really arresting, five oppressive punishments,which they called law however,especially when we remember the hon- (fa)."Then the text goes on to say that many ored status of law in other civilizations,is the overt innocent people were executed by the Miao,who hostility with which its appearance is initially were the first to administer such punishments as greeted in China-seemingly not only as a viola- castration,amputation of the nose or legs,etc. tion of human morality,but perhaps even of the Shang Ti or the“Lord on High”(the supreme total cosmic order.23 god of the ancient Chinese),seeing the resulting An excellent example of this attitude is a story disorder among the people,felt pity for the inno- -apparently the historicized fragment of what cent and hence exterminated the Miao,so that they was once a longer myth-providing probably the had no descendants.25 earliest explanation for the origin of fa,written The abhorrence of law expressed in this story law.The story appears in a short text entitled Li hsing (Punishments of Lu),itself a section of no doubt reflects a period in legal development the important classic known as the Shu ching (sixth or fifth century B.c.)when written law was (Document Classic),where it is placed in the still a novelty and hence viewed with suspicion. mouth of a king who reigned around 950 B.C. In later centuries,when law became more preva- Its actual date of composition must surely be sev- lent and the need for its existence became increas- eral centuries later,but just how much later is ingly recognized,various nonmythological and hard to say with exactness.However,the fact soberly "sociological"explanations of its origin that it is quoted and mentioned by name in another appeared.Though their attitude toward law is text of the fourth century B.c.provides us with no longer hostile,they all agree with the unknown at least a terminus ante quem.24 author of the Miao legend in explaining the origin The remarkable feature of this story is that it of law in strictly secular terms.The following attributes the invention of fa neither to a Chinese are three representative examples,the first of 22 See D.Bodde,"Myths of Ancient China,"in Samuel which dates from the pre-imperial age (third N.Kramer,ed.,Mythologies of the Ancient World (New century B.c.),and the other two from the Han York,Doubleday Anchor Books,and Chicago,Quad- empire (second century B.C.and first century A.D., rangle Books,.1961),pp.369-408,esp.372-376. 23 The relationship of Chinese law to the cosmic order respectively): will be discussed further in sect.11.Here it should be mentioned that in purportedly early literature there ap- In the days of antiquity,before the time when there pears a well-known tradition about a legendary adminis- were rulers and subjects,superiors and inferiors,the trator of justice,Kao Yao,which at first sight seems to people were disorderly and badly governed.Hence run counter to the hostile attitude just mentioned.Closer the sages made a division between the noble and examination,however,shows that the relationship of the humble,regulated rank and division,and estab- this tradition to actual written law is a questionable one. lished names and appellations,in order to distinguish See appendix:“Kao Yao and Early Chinese Law.” the ideas of ruler and subject,of superior and in- 24 For translation of the story that follows,see James ferior....As the people were numerous and wick- Legge,The Chinese Classics (5 v.,Hong Kong Univer- edness and depravity arose among them,they [the sity Press reprint,1960)3:pp.591-593;also Bernhard sages]therefore established laws (fa)and controls Karlgren (whose version is followed here with modifica- tions),"The Book of Documents,"Bulletin of the Mu- 2b Further fragments of this myth,as found in this and seum of Far Eastern Antiquities 22 (Stockholm,1950): other texts,state that the Lord on High then separated 74.The work in which the Li hsing is later quoted is the Heaven from Earth so that people could no longer pass Mo-taw (compiled by followers of the philosopher of the from one to the other;also that the Miao,instead of being same name,who lived sometime between 479 and 381 exterminated,were banished to the extreme northwestern B.C.);see Y.P.Mei,transl.,The Ethical and Political corner of the world,where they continued to exist as a Works of Motse,Probsthain's Oriental Series 19 (Lon- race of winged beings who,despite their wings,were don,1929),pp.45-46,51,and esp.64 (quoting the same unable to fly.See Bodde,op.cit.(cited in note 22), sentence which appears below). Dp.389394. 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

380 DERK BODDE [PROC. AMER. PHIL. SOC. what at one time must have been the gods, demi￾gods, or monsters of full-fledged myth have since become "euhemerized" or "historicized" into the denatured sage-kings, heroes, or rebels of pseudo￾history.22 When we turn to the legal sphere, therefore, it should not surprise us that here too the atmos￾phere is entirely secular. What is really arresting, however, especially when we remember the hon￾ored status of law in other civilizations, is the overt hostility with which its appearance is initially greeted in China-seemingly not only as a viola￾tion of human morality, but perhaps even of the total cosmic order.23 An excellent example of this attitude is a story -apparently the historicized fragment of what was once a longer myth-providing probably the earliest explanation for the origin of fa, written law. The story appears in a short text entitled Lii hsing (Punishments of Lu), itself a section of the important classic known as the Shu ching (Document Classic), where it is placed in the mouth of a king who reigned around 950 B.C. Its actual date of composition must surely be sev￾eral centuries later, but just how much later is hard to say with exactness. However, the fact that it is quoted and mentioned by name in another text of the fourth century B.C. provides us with at least a terminus ante quem.24 The remarkable feature of this story is that it attributes the invention of fa neither to a Chinese 22 See D. Bodde, "Myths of Ancient China," in Samuel N. Kramer, ed., Mythologies of the Ancient World (New York, Doubleday Anchor Books, and Chicago, Quad￾rangle Books, 1961), pp. 369-408, esp. 372-376. 23 The relationship of Chinese law to the cosmic order will be discussed further in sect. 11. Here it should be mentioned that in purportedly early literature there ap￾pears a well-known tradition about a legendary adminis￾trator of justice, Kao Yao, which at first sight seems to run counter to the hostile attitude just mentioned. Closer examination, however, shows that the relationship of this tradition to actual written law is a questionable one. See appendix: "Kao Yao and Early Chinese Law." 24 For translation of the story that follows, see James Legge, The Chinese Classics (5 v., Hong Kong Univer￾sity Press reprint, 1960) 3: pp. 591-593; also Bernhard Karlgren (whose version is followed here with modifica￾tions), "The Book of Documents," Bulletin of the Mu￾seum of Far Eastern Antiquities 22 (Stockholm, 1950): 74. The work in which the Lii hsing is later quoted is the Mo-tzu (compiled by followers of the philosopher of the same name, who lived sometime between 479 and 381 B.C.) ; see Y. P. Mei, transl., The Ethical and Political Works of Motse, Probsthain's Oriental Series 19 (Lon￾don, 1929), pp. 45-46, 51, and esp. 64 (quoting the same sentence which appears below). sage-king nor even to a Chinese at all, but rather to a "barbarian" people, the Miao, alleged to have flourished during the reign of the (legendary) sage Shun (trad. twenty-third century B.C.). Thus the key sentence tells us: "The Miao people made no use of spiritual cultivation, but controlled by means of punishments (hsing), creating the five oppressive punishments, which they called law (fa)." Then the text goes on to say that many innocent people were executed by the Miao, who were the first to administer such punishments as castration, amputation of the nose or legs, etc. Shang Ti or the "Lord on High" (the supreme god of the ancient Chinese), seeing the resulting disorder among the people, felt pity for the inno￾cent and hence exterminated the Miao, so that they had no descendants.25 The abhorrence of law expressed in this story no doubt reflects a period in legal development (sixth or fifth century B.C.) when written law was still a novelty and hence viewed with suspicion. In later centuries, when law became more preva￾lent and the need for its existence became increas￾ingly recognized, various nonmythological and soberly "sociological" explanations of its origin appeared. Though their attitude toward law is no longer hostile, they all agree with the unknown author of the Miao legend in explaining the origin of law in strictly secular terms. The following are three representative examples, the first of which dates from the pre-imperial age (third century B.C.), and the other two from the Han empire (second century B.C. and first century A.D., respectively): In the days of antiquity, before the time when there xvere rulers and subjects, superiors and inferiors, the people were disorderly and badly governed. Hence the sages made a division between the noble and the humble, regulated rank and division, and estab￾lished names and appellations, in order to distinguish the ideas of ruler and subject, of superior and in￾ferior. . . As the people were numerous and wick￾edness and depravity arose among them, they [the sages] therefore established laws (fa) and controls 25 Further fragments of this myth, as found in this and other texts, state that the Lord on High then separated Heaven from Earth so that people could no longer pass from one to the other; also that the Miao, instead of being exterminated, were banished to the extreme northwestern corner of the world, where they continued to exist as a race of winged beings who, despite their wings, were unable to fly. See Bodde, op. cit. (cited in note 22), pp. 389-394. 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 381 and created weights and measures,in order thereby the sixth century B.c.,a combination of social, to prevent these things.26 political,economic,and technological forces was Law (fa)has its origin in social rightness (yi). Social rightness has its origin in what is fitting for bringing about an accelerating dissolution of the the many.What is fitting for the many is what old order. accords with the minds of men.Herein is the essence The new forces included,among others,new of good government... Law is not something sent agricultural techniques which made increases in down by Heaven,nor is it something engendered by Earth.It springs from the midst of men themselves, population possible;the growth of commerce and and by being brought back to men]it corrects rise of a money economy;the buying and selling itself.27 of land and partial freeing of the peasants from The sages,being enlightened and wise by nature, their former serfdom;a growing administrative inevitably penetrated the mind of Heaven and Earth. complexity in the state governments;and the ap- They shaped the rules of proper behavior (li), created teachings,established laws (fa),and insti- pearance of competing schools of philosophy and tuted punishments (hsing),always acting in accord- politics.The final centuries of the Chou dynasty, ance with the feelings of the people and patterning and appropriately known as the Period of the Warring modeling themselves on Heaven and Earth.28 States (403-221 B.C.),saw increasingly bitter warfare between the few large states still surviv- 4.THE EARLIEST CHINESE“CODE” ing,till one of them,the state of Ch'in,succeeded From myth and social theory it is time to turn in swallowing up its rivals one by one,and in 221 to the concrete beginnings of Chinese written law B.C.finally created the first centralized empire in as recorded in authentic history.The Chou dy- Chinese history.20 nasty (ca.1027-221 B.c.)functioned during its Such is the background of interrelated changes early centuries under a political system which has against which should be viewed the creation of often been compared to European feudalism.At the first "codes"of written law in the late sixth the top were the Chou kings,who exercised nomi- century B.C.The earliest reliably known to us is nal sovereignty over the entire Chinese cultural the“books of punishment'”(hsing shu)which world.Under them were vassal lords who held as Tzu-ch'an,prime minister of the state of Cheng, fiefs from the Chou house a multitude of small ordered to be inscribed in 536 B.c.on a set of principalities.The latter were subdivided in turn bronze tripod vessels.His action was followed by into the estates of subordinate lords and officials, similar steps in this and other states in 513,501, while at the bottom of the pyramid came the and later.Though the texts of these "codes"have peasant serfs,hereditarily attached to these estates. in every case been lost,we may judge of the oppo- In the course of time,however,the vassal princi- sition they aroused from the famed letter of protest palities broke away from the Chou overlordship which the high dignitary of a neighboring state, and became completely independent states.By Shu-hsiang,sent to Tzu-ch'an upon the promulga- tion of the Cheng laws:3o 26 Shang chiin shu,chap.23.This is a third century B.C.work belonging to the Legalist school (on which see Originally,sir,I had hope in you,but now that is below). See translation (here slightly modified)by all over.Anciently,the early kings conducted their J.J.L.Duyvendak,The Book of Lord Shang,Probs- administration by deliberating on matters [as they thain's Oriental Series 17 (London,1928),pp.314-315. arose];they did not put their punishments and penal- 27 Huai-nan-taw (The Master of Huai-nan),9/20a ties [into writing],fearing that this would create a (edition of Liu Wen-tien,Huai-nan hung-lieh chi-chieh, contentiousness among the people which could not be checked. Shanghai,Commercial Press,1933).This is an eclectic Therefore they used the principle of social philosophical work,composed by scholars attached to the rightness (yi)to keep the people in bounds,held them court of Liu An,Prince of Huai-nan (died 122 B.c.). together through their administrative procedures,ac- The chapter here quoted represents the Legalist school. tivated for them the accepted ways of behavior (li), 28 Han shu (History of the [Former]Han Dynasty), chap.23 (Treatise on Punishments and Law),written by 20 For a survey of these developments,see D.Bodde, "Feudalism in China,"in Rushton Coulborn,ed.,Feudal- Pan Ku around A.D.80.See translation (here slightly modified)in Hulsewe,Remnants of Han Law (cited in ism in History (Princeton,N.J.,Princeton University note 12)1:pp.321-322.Though the sages are here said Press,1956),pp.49-92. to have "penetrated the mind of Heaven and Earth," s0 The letter is preserved in the Tso chuan history (probably compiled mostly in the third century B.c.from they surely did so through their own intelligence and not with the aid of divine revelation.Chinese thinking regu- earlier records).See translation of Legge (here modi- fied),Chinese Classics (cited in note 24)5:p.609. larly attributes the creation of civilization to the intel- For a rather similar criticism by Confucius of the promul- ligence of the ancient sages,but never suggests that they received divine revelation. gation of penal laws in the state of Chin in 513 B.c., see ibid.,p.732. 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VOL. 107, NO. 5, 1963] BASIC CONCEPTS OF CHINESE LAW 381 and created weights and measures, in order thereby to prevent these things.26 Law (fa) has its origin in social rightness (yi). Social rightness has its origin in what is fitting for the many. What is fitting for the many is what accords with the minds of men. Herein is the essence of good government. . . Law is not something sent down by Heaven, nor is it something engendered by Earth. It springs from the midst of men themselves, and by being brought back [to men] it corrects itself.27 The sages, being enlightened and wise by nature, inevitably penetrated the mind of Heaven and Earth. They shaped the rules of proper behavior (ii), created teachings, established laws (fa), and insti￾tuted punishments (hsing), always acting in accord￾ance with the feelings of the people and patterning and modeling themselves on Heaven and Earth.28 4. THE EARLIEST CHINESE "CODE" From myth and social theory it is time to turn to the concrete beginnings of Chinese written law as recorded in authentic history. The Chou dy￾nasty (ca. 1027-221 B.C.) functioned during its early centuries under a political system which has often been compared to European feudalism. At the top were the Chou kings, who exercised nomi￾nal sovereignty over the entire Chinese cultural world. Under them were vassal lords who held as fiefs from the Chou house a multitude of small principalities. The latter were subdivided in turn into the estates of subordinate lords and officials, while at the bottom of the pyramid came the peasant serfs, hereditarily attached to these estates. In the course of time, however, the vassal princi￾palities broke away from the Chou overlordship and became completely independent states. By 26 Shiang chiin shit, chap. 23. This is a third century B.C. work belonging to the Legalist school (on which see below). See translation (here slightly modified) by J. J. L. Duyvendak, The Book of Lord Shang, Probs￾thain's Oriental Series 17 (London, 1928), pp. 314-315. 27 Huiai-nan-tzu (The Master of Huai-nan), 9/20a (edition of Liu Wen-tien, Huai-nan huing-lieh chi-chieh, Shanghai, Commercial Press, 1933). This is an eclectic philosophical work, composed by scholars attached to the court of Liu An, Prince of Huai-nan (died 122 B.C.). The chapter here quoted represents the Legalist school. 28 Han shu (History of the [Former] Han Dynasty), chap. 23 (Treatise on Punishments and Law), written by Pan Ku around A.D. 80. See translation (here slightly modified) in Hulsewe, Remniiants of Han Law (cited in note 12) 1: pp. 321-322. Though the sages are here said to have "penetrated the mind of Heaven and Earth," they surely did so through their own intelligence and not with the aid of divine revelation. Chinese thinking regu￾larly attributes the creation of civilization to the intel￾ligence of the ancient sages, but never suggests that they received divine revelation. the sixth century B.C., a combination of social, political, economic, and technological forces was bringing about an accelerating dissolution of the old order. The new forces included, among others, new agricultural techniques which made increases in population possible; the growth of commerce and rise of a money economy; the buying and selling of land and partial freeing of the peasants from their former serfdom; a growing administrative complexity in the state governments; and the ap￾pearance of competing schools of philosophy and politics. The final centuries of the Chou dynasty, appropriately known as the Period of the Warring States (403-221 B.C.), saw increasingly bitter warfare between the few large states still surviv￾ing, till one of them, the state of Ch'in, succeeded in swallowing up its rivals one by one, and in 221 B.C. finally created the first centralized empire in Chinese history.29 Such is the background of interrelated changes against which should be viewed the creation of the first "codes" of written law in the late sixth century B.C. The earliest reliably known to us is the "books of punishment" (hsing shu) which Tzu-ch'an, prime minister of the state of Cheng, ordered to be inscribed in 536 B.C. on a set of bronze tripod vessels. His action was followed by similar steps in this and other states in 513, 501, and later. Though the texts of these "codes" have in every case been lost, we may judge of the oppo￾sition they aroused from the famed letter of protest which the high dignitary of a neighboring state, Shu-hsiang, sent to Tzu-ch'an upon the promulga￾tion of the Cheng laws: 30 Originally, sir, I had hope in you, but now that is all over. Anciently, the early kings conducted their administration by deliberating on matters [as they arose]; they did not put their punishments and penal￾ties [into writing], fearing that this would create a contentiousness among the people which could not be checked. Therefore they used the principle of social rightness (yi) to keep the people in bounds, held them together through their administrative procedures, ac￾tivated for them the accepted ways of behavior (li), 29 For a survey of these developments,ee D. Bodde, "Feudalism in China," in Rushton Coulborn, ed., Feudal￾ism in History (Princeton, N. J., Princeton University Press, 1956), pp. 49-92. 30 The letter is preserved in the Tso chuan history (probably compiled mostly in the third century B.c. from earlier records). See translation of Legge (here modi￾fied), Chinese Classics (cited in note 24) 5: p. 609. For a rather similar criticism by Confucius of the promul￾gation of penal laws in the state of Chin in 513 B.C., see ibid., p. 732. 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

382 DERK BODDE PROC.AMER.PHIL.SOC. maintained good faith (hsin)toward then,and tional'feudal"scale of values.Hence it is natural presented them with [examples of]benevolence that they should be bitterly hostile to the new law, (jem).,,. But when the people know what the penalties are, especially in its early stages.Later,however,as they lose their fear of authority and acquire a con- it became increasingly apparent that law had come tentiousness which causes them to make their appeal to stay,the Confucians softened their attitude to to the written words [of the penal laws],on the the point where they accepted law-although chance that this will bring them success [in court cases].. .Today,sir,as prime minister of the grudgingly-as a necessary evil.Even then,how- state of Cheng,you have built dikes and canals,set up ever,they remained Confucian in their insistence an administration which evokes criticism,and cast that the public enacting of law is not necessary in [bronze vessels inscribed with]books of punishment. the ideal state,and that even in the inferior admin- Is it not going to be difficult to bring tranquility to istrations of their own times,government by law the people in this way?...As soon as the people know the grounds on which to conduct disputation should always be kept secondary to government they will reject the [unwritten]accepted ways of by moral precept and example.31 behavior (li)and make their appeal to the written Opposed to the Confucians were men who,be- word,arguing to the last over the tip of an awl or cause of their ardent advocacy of law,eventually knife.Disorderly litigations will multiply and bribery will become current.By the end of your era,Cheng came to be known as the Legalists or School of will be ruined.I have heard it said that a state which Law (Fa Chia).Most of them were less theoreti- is about to perish is sure to have many governmental cal thinkers than tough-minded men of affairs who, regulations as administrators,diplomats,and political econo- To this criticism,Tzu-ch'an's brief reply was mists,sought employment from whatever state polite but uncompromising: would use their services.Their aim was direct and simple:to create a political and military appa- As to your statements,sir,I have neither the talents ratus powerful enough to suppress feudal privilege nor ability to act for posterity.My object is to save at home,expand the state's territories abroad,and the present age.Though I cannot accept your in- structions,dare I forget your great kindness? eventually weld all the rival kingdoms into a single empire.Toward this goal they were ready to use This letter is eloquent testimony to the un- every political,military,economic and diplomatic changing spirit of conservatism throughout the technique at their disposal.Their insistence on ages.Shu-hsiang's criticisms of dike and canal law,therefore,was motivated by no concern for building and of bigness in government are recog- "human rights,"but simply by the realization that nizably those of any conservative legislator today law was essential for effectively controlling the whenever he attacks public spending and demands growing populations under their jurisdiction. In a balanced budget.What is uniquely Chinese and thinking and techniques they were genuine totali- therefore most significant about the letter,how- tarians,concerned with men in the mass,in ever,is its insistence upon the moral and political contrast to the Confucians,for whom individual, dangers involved in the public promulgation of family,or local community were of paramount legal norms.This view of law seems to have no importance.Yet it would be unfair to regard real parallel in any other civilization. them merely as unscrupulous power-hungry poli- It should not surprise us that Shu-hsiang's let- ticians,for they sincerely believed that only ter is strongly Confucian in tone,notably in its through total methods could eventual peace and use of such Confucian terms as yi,li,hsin and jen. unity be brought to their war-torn world.If For though Confucius was but fifteen when the asked why they did what they did,they would no letter was written,these terms and the ideas they doubt have echoed Tzu-ch'an's dictum:"My ob- connoted were surely already "in the air"when ject is to save the present age." he was young,and were not complete innovations with himself 6.CONFUCIAN VIEWS OF LI AND LAW As against the Legalists'fa or law,the key Con- 5.CONFUCIANS AND LEGALISTS fucian term is li.This is a word with an extra- Though Shu-hsiang himself cannot be formally ordinarily wide range of meanings.In its narrow- accounted a Confucian,his letter nevertheless epit- omizes what may be termed the“purist”Confu- 31 This shift in Confucian attitude,which it is easy to overlook,is rightly stressed by T'ung-tsu Ch't,Law cian view of law.As we shall see shortly,the and Society in Traditional China (cited in note 1),chap. Confucians were staunch upholders of the tradi- 6,sect.3,"The Confucianization of Law,"pp.267 f. 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

382 DERK BODDE [PROC. AMER. PHIL. SOC. maintained good faith (hsin) toward then, and presented them with [examples of] benevolence (jen). . . . But when the people know what the penalties are, they lose their fear of authority and acquire a con￾tentiousness which causes them to make their appeal to the written words [of the penal laws], on the chance that this will bring them success [in court cases]. . . . Today, sir, as prime minister of the state of Cheng, you have built dikes and canals, set up an administration which evokes criticism, and cast [bronze vessels inscribed with] books of punishment. Is it not going to be difficult to bring tranquility to the people in this way? . . . As soon as the people know the grounds on which to conduct disputation, they will reject the [unwritten] accepted ways of behavior (ii) and make their appeal to the written word, arguing to the last over the tip of an awl or knife. Disorderly litigations will multiply and bribery will become current. By the end of your era, Cheng will be ruined. I have heard it said that a state which is about to perish is sure to have many governmental regulations. To this criticism, Tzu-ch'an's brief reply was polite but uncompromising: As to your statements, sir, I have neither the talents nor ability to act for posterity. My object is to save the present age. Though I cannot accept your in￾structions, dare I forget your great kindness ? This letter is eloquent testimony to the un￾changing spirit of conservatism throughout the ages. Shu-hsiang's criticisms of dike and canal building and of bigness in government are recog￾nizably those of any conservative legislator today whenever he attacks public spending and demands a balanced budget. What is uniquely Chinese and therefore most significant about the letter, how￾ever, is its insistence upon the moral and political dangers involved in the public promulgation of legal norms. This view of law seems to have no real parallel in any other civilization. It should not surprise us that Shu-hsiang's let￾ter is strongly Confucian in tone, notably in its use of such Confucian terms as yi, li, hsin and jen. For though Confucius was but fifteen when the letter was written, these terms and the ideas they connoted were surely already "in the air" when he was young, and were not complete innovations with himself. 5. CONFUCIANS AND LEGALISTS Though Shu-hsiang himself cannot be formally accounted a Confucian, his letter nevertheless epit￾omizes what may be termed the "purist" Confu￾cian view of law. As we shall see shortly, the Confucians were staunch upholders of the tradi￾tional "feudal" scale of values. Hence it is natural that they should be bitterly hostile to the new law, especially in its early stages. Later, however, as it became increasingly apparent that law had come to stay, the Confucians softened their attitude to the point where they accepted law-although grudgingly-as a necessary evil. Even then, how￾ever, they remained Confucian in their insistence that the public enacting of law is not necessary in the ideal state, and that even in the inferior admin￾istrations of their own times, government by law should always be kept secondary to government by moral precept and example.81 Opposed to the Confucians were men who, be￾cause of their ardent advocacy of law, eventually came to be known as the Legalists or School of Law (Fa Chia). Most of them were less theoreti￾cal thinkers than tough-minded men of affairs who, as administrators, diplomats, and political econo￾mists, sought employment from whatever state would use their services. Their aim was direct and simple: to create a political and military appa￾ratus powerful enough to suppress feudal privilege at home, expand the state's territories abroad, and eventually weld all the rival kingdoms into a single empire. Toward this goal they were ready to use every political, military, economic and diplomatic technique at their disposal. Their insistence on law, therefore, was motivated by no concern for "human rights," but simply by the realization that law was essential for effectively controlling the growing populations under their jurisdiction. In thinking and techniques they were genuine totali￾tarians, concerned with men in the mass, in contrast to the Confucians, for whom individual, family, or local community were of paramount importance. Yet it would be unfair to regard them merely as unscrupulous power-hungry poli￾ticians, for they sincerely believed that only through total methods could eventual peace and unity be brought to their war-torn world. If asked why they did what they did, they would no doubt have echoed Tzu-ch'an's dictum: "My ob￾ject is to save the present age." 6. CONFUCIAN VIEWS OF LI AND LAW As against the Legalists' fa or law, the key Con￾fucian term is ii. This is a word with an extra￾ordinarily wide range of meanings. In its narrow- 31 This shift in Confucian attitude, which it is easy to overlook, is rightly stressed by T'ung-tsu Ch'iu, Law and Society in Traditional China (cited in note 1), chap. 6, sect. 3, "The Confucianization of Law," pp. 267 f. 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 383 est (and probably original)sense,it denotes the wise be drawn between Legalist fa and Western correct performance of all kinds of religious ritual: positive law.s2 sacrificing to the ancestors at the right time and Finally,and this is an important point,the place and with the proper deportment and attitude early li were the product of a society in which is li;so is the proper performance of divination. hierarchical difference was emphasized.That is In this sense li is often translated as ritual or to say,the li prescribed sharply differing patterns rites.In a broader sense,however,li covers the of behavior according to a person's age and rank entire gamut of ceremonial or polite behavior, both within his family and in society at large (one secular as well as religious.There are numerous pattern when acting toward a superior,another rules of li for all customary situations involving toward an inferior,still a third toward an equal). social relationships,such as receiving a guest,ac- This idea of hierarchical difference,with resulting quiring a wife,going into battle,and the many differences in behavior and privilege,has remained other varied duties and activities of polite society. alive in Confucianism throughout imperial times, In this sense,li is often translated as ceremonial, despite the disappearance of the pre-imperial politeness,etiquette,or rules of proper conduct. feudal society that first gave it birth.sa Finally,li in its broadest sense is a designation for Keeping these ideas in mind,let us now examine all the institutions and relationships,both political the main Confucian arguments in the controversy and social,which make for harmonious living in a between them and the Legalists.For the sake of Confucian society.The li,in short,constitute both clarity and brevity,we shall use our own words the concrete institutions and the accepted modes of to summarize these arguments,trying,however, behavior in a civilized state. to express them as accurately as possible and keep- The Confucians believed that the li had been ing to what might be called a "purist"Confucian created by the ancient sages,and that the disorder position: of their own age resulted from men's failure to understand or live according to these li.A prime 1.Man is by nature good (Mencius,371?-289? Confucian duty,therefore,was to study and inter- B.C.),or at least is a rational being capable of pret the li as handed down from antiquity so as to learning goodness (Hsuin Tzu,ca.298-ca.238 make them meaningful for the present day.This B.C.).It is by inculcating the li that society shapes idea led the Confucians to prepare several written the individual into a socially acceptable human compilations of li which,however,did not assume being.The li are thus preventive in that they turn final form until near the end of the feudal age and the individual away from evil before he has the during the early part of the age of empire.Dur- chance of committing it,whereas law (fa)is ing most of the Chou dynasty,consequently,the punitive in that it only comes into action to punish li were transmitted in unwritten form only.At the individual for evil already committed. the same time,their large number,complexity, 2.A government based on virtue can truly win and refinement meant that they were largely an the hearts of men;one based on force can only gain their outward submission.The li are suasive upper-class monopoly.Indeed,what most readily distinguished the Confucian ideal gentleman (the and hence the instrument of a virtuous govern- ment;laws are compulsive and hence the instru- chiin-tst or "Superior Man")from ordinary men ment of a tyrannical government. was his mastery of the li. 3.The li derive their universal validity from the On the other hand,the Confucians believed that fact that they were created by the intelligent sages underlying the minutiae of the specific rules of li of antiquity in conformity with human nature and are to be found certain broad moral principles with the cosmic order.Law has no moral validity which are what give the li their validity.This is because it is merely the ad hoc creation of modern so because these principles are rooted in innate men who wish by means of it to generate political human feeling;in other words,they represent power. what men in general instinctively feel to be right. 4.The five major relationships of Confucianism It is this interpretation of li which has caused 32 See especially Needham,Science and Civilisation in some modern scholars to suggest that a parallel China (cited in note 21)2:pp.519,530-532,544 ff. may be drawn between Confucian li and the West- as This point is stressed by T'ung-tsu Chi,op.cit.,in ern concept of natural law on the one hand,in his excellent discussion of li on p.230,note 11.See also his entire chap.6,"The Confucian School and the Legal apposition to a counter parallel which may like- School." 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VOL. 107, NO. 5, 19631 BASIC CONCEPTS OF CHINESE LAW 383 est (and probably original) sense, it denotes the correct performance of all kinds of religious ritual: sacrificing to the ancestors at the right time and place and with the proper deportment and attitude is li; so is the proper performance of divination. In this sense 1i is often translated as ritual or rites. In a broader sense, however, 1i covers the entire gamut of ceremonial or polite behavior, secular as well as religious. There are numerous rules of 1i for all customary situations involving social relationships, such as receiving a guest, ac￾quiring a wife, going into battle, and the many other varied duties and activities of polite society. In this sense, 1i is often translated as ceremonial, politeness, etiquette, or rules of proper conduct. Finally, 1i in its broadest sense is a designation for all the institutions and relationships, both political and social, which make for harmonious living in a Confucian society. The li, in short, constitute both the concrete institutions and the accepted modes of behavior in a civilized state. The Confucians believed that the 1i had been created by the ancient sages, and that the disorder of their own age resulted from men's failure to understand or live according to these ii. A prime Confucian duty, therefore, was to study and inter￾pret the 1i as handed down from antiquity so as to make them meaningful for the present day. This idea led the Confucians to prepare several written compilations of 1i which, however, did not assume final form until near the end of the feudal age and during the early part of the age of empire. Dur￾ing most of the Chou dynasty, consequently, the 1i were transmitted in unwritten form only. At the same time, their large number, complexity, and refinement meant that they were largely an upper-class monopoly. Indeed, what most readily distinguished the Confucian ideal gentleman (the chiin-tzu or "Superior Man") from ordinary men was his mastery of the ii. On the other hand, the Confucians believed that underlying the minutiae of the specific rules of 1i are to be found certain broad moral principles which are what give the 1i their validity. This is so because these principles are rooted in innate human feeling; in other words, they represent what men in general instinctively feel to be right. It is this interpretation of 1i which has caused some modern scholars to suggest that a parallel may be drawn between Confucian 1i and the West￾ern concept of natural law on the one hand, in apposition to a counter parallel which may like￾wise be drawn between Legalist fa and Western positive law.32 Finally, and this is an important point, the early 1i were the product of a society in which hierarchical difference was emphasized. That is to say, the 1i prescribed sharply differing patterns of behavior according to a person's age and rank both within his family and in society at large (one pattern when acting toward a superior, another toward an inferior, still a third toward an equal). This idea of hierarchical difference, with resulting differences in behavior and privilege, has remained alive in Confucianism throughout imperial times, despite the disappearance of the pre-imperial feudal society that first gave it birth.33 Keeping these ideas in mind, let us now examine the main Confucian arguments in the controversy between them and the Legalists. For the sake of clarity and brevity, we shall use our own words to summarize these arguments, trying, however, to express them as accurately as possible and keep￾ing to what might be called a "purist" Confucian position: 1. Man is by nature good (Mencius, 371 ?-289? B.C.), or at least is a rational being capable of learning goodness (Hsiun Tzu, ca. 298-ca. 238 B.C.). It is by inculcating the 1i that society shapes the individual into a socially acceptable human being. The 1i are thus preventive in that they turn the individual away from evil before he has the chance of committing it, whereas law (fa) is punitive in that it only comes into action to punish the individual for evil already committed. 2. A government based on virtue can truly win the hearts of men; one based on force can only gain their outward submission. The 1i are suasive and hence the instrument of a virtuous govern￾ment; laws are compulsive and hence the instru￾ment of a tyrannical government. 3. The 1i derive their universal validity from the fact that they were created by the intelligent sages of antiquity in conformity with human nature and with the cosmic order. Law has no moral validity because it is merely the ad hoc creation of modern men who wish by means of it to generate political power. 4. The five major relationships of Confucianism 32 See especially Needham, Science and Civilisation in China (cited in note 21) 2: pp. 519, 530-532, 544 ff. 33 This point is stressed by T'ung-tsu Chii, op. cit., in his excellent discussion of Ii on p. 230, note 11. See also his entire chap. 6, "The Confucian School and the Legal School." 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

384 DERK BODDE PROC.AMER.PHIL.SOC. -those of father and son,ruler and subject, Goodness alone [without law]does not suffice for husband and wife,elder and younger brother, handling government.Law (fa)alone [without friend and friend-are instinctive to man and es- goodness]cannot succeed in operating of itself.ss sential for a stable social order.The li reinforce To have good laws (fa)and yet experience dis- order-examples of this have indeed existed.But to these and similar relationships by prescribing have a Superior Man (chiin-feu)and yet experience modes of behavior differing according to status, disorder-this is something which from antiquity un- whereas law obliterates the relationships by im- til today has never been heard of.89 posing a forced uniformity. Laws (fa)cannot stand alone,and analogies cannot 5.The li(meaning at this point primarily rites act of themselves.When they have the proper man, they survive;when they lack the proper man,they and ceremony)give poetry and beauty to life. disappear.Law is the basis of good government,but They provide channels for the expression of hu- the Superior Man (chiin-tsu)is the origin of the man emotion in ways that are socially acceptable. law. Therefore when there is a Superior Man,the Law,on the contrary,is mechanistic and devoid of laws,though they may be sparing,succeed in being all-pervading.When there is no Superior Man,the emotional content. laws,though they may be complete,lose their power 6.A government based on li functions harmoni- of orderly enforcement,are unable to respond to the ously because the li,being unwritten,can be flex- changes of affairs,and suffice only to bring con- ibly interpreted to meet the exigencies of any par- fusion.40 ticular situation.A government based on law The Legalists (Fa Chia)make no distinction be- tween kindred and strangers,nor do they differentiate creates contention because its people,knowing in the noble from the humble.All such are judged by advance what the written law is,can find means to them as one before the law (fa),thereby sundering circumvent it,and will rest their sophistical argu- the kindliness expressed in affection toward kindred ments on the letter rather than the spirit of the and respect toward the honorable.Their program law (see Shu-hsiang's letter). might perhaps be followed a single time,but it is not one to be used for long.Hence I say of them that 7.Laws are no better than the men who create they are stern and deficient in kindliness,41 and execute them.The moral training of the A good government is one that takes benevolence ruler and his officials counts for more than the (jen)and social rightness (yi)as its basic roots,and devising of clever legal machinery. laws (fa)and regulations (tu)as its lesser twigs. He who gives priority to the roots,but only To give the flavor of the Confucian spokesmen secondary place to the twigs,is termed a Superior themselves,the following are offered as a few Man (chin-tsu),whereas he who lets his concern representative quotations.Included,however,are for the twigs result in damage to the roots is termed two of non-Confucian origin,illustrative of the a petty man (hsiao jen)....To ignore cultivation of the roots while devoting effort to the twigs is to fact that the Confucian distrust of law was shared neglect the trunk while giving water to the branches. by other schools of thought,though sometimes for Law,moreover,has its birth in the upholding of different reasons:84 benevolence and social rightness,so that to lay great weight on law while discarding social rightness is to In hearing cases I am as good as anyone else,but what is really needed is to bring about that there are a8 Mencius (ca.371-ca.289 B.C.),in the work bearing no cases！85 his name,IVa,1,where he quotes this as a saying of his Lead the people by regulations,keep them in order time.This and the following passages belong to an age by punishments (hsing),and they will flee from you when law was coming into wider use.While grudgingly and lose all self-respect.But lead them by virtue and accepting it as inevitable,they emphasize its secondary keep them in order by established morality (li),and role in the government of the Confucian ruler. they will keep their self-respect and come to you.ae 30 Hsin Tzu (ca.298-ca.238 B.c.),chap.9 of the work The more laws (fa)and ordinances (ling)are bearing his name:see translation of H.H.Dubs (here promulgated,the more thieves and robbers there will modified),The Works of Hsiintse,Probsthain's Oriental be.8T Series 16 (London,1928),p.123.Repeated in chap.14 (not translated by Dubs). a+For another list of such quotations,see Balazs,Le 40 Hsiin-tsu,beginning of chap.12 (not translated by Traite juridique du "Souei-chou"(cited in note 12), Dubs). appen.9. 41 Ssu-ma T'an (died 110 B.c.),in his essay on the six 35 Confucius (551-479 B.C.),as quoted in the Analects, schools of philosophy,as quoted in the great history begun XII,13. by himself and completed by his son,Ssu-ma Ch'ien (ca. se Confucius in Analects,II,3. 145-86 B.C.).This is the Shih chi (Records of the His- s7 Lao Tzu,in his chap.57.Though he is traditionally torian),chap.130.See translation of Burton Watson said to have been an elder contemporary of Confucius, (here modified),Ssu-ma Ch'ien,Grand Historian of most scholars today believe that the book bearing his name China (New York,Columbia University Press,1958), (known also as the Tao-te ching)dates from the late p.46. Ssu-ma T'an,though something of an eclectic,was fourth or early third century B.c. more inclined toward Taoism than Confucianism. 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

384 DERK BODDE [PROC. AMER. PHIL. SOC. -those of father and son, ruler and subject, husband and wife, elder and younger brother, friend and friend-are instinctive to man and es￾sential for a stable social order. The 1i reinforce these and similar relationships by prescribing modes of behavior differing according to status, whereas law obliterates the relationships by im￾posing a forced uniformity. 5. The li (meaning at this point primarily rites and ceremony) give poetry and beauty to life. They provide channels for the expression of hu￾man emotion in ways that are socially acceptable. Law, on the contrary, is mechanistic and devoid of emotional content. 6. A government based on 1i functions harmoni￾ously because the li, being unwritten, can be flex￾ibly interpreted to meet the exigencies of any par￾ticular situation. A government based on law creates contention because its people, knowing in advance what the written law is, can find means to circumvent it, and will rest their sophistical argu￾ments on the letter rather than the spirit of the law (see Shu-hsiang's letter). 7. Laws are no better than the men who create and execute them. The moral training of the ruler and his officials counts for more than the devising of clever legal machinery. To give the flavor of the Confucian spokesmen themselves, the following are offered as a few representative quotations. Included, however, are two of non-Confucian origin, illustrative of the fact that the Confucian distrust of law was shared by other schools of thought, though sometimes for different reasons: 34 In hearing cases I am as good as anyone else, but what is really needed is to bring about that there are no cases ! 35 Lead the people by regulations, keep them in order by punishments (hsing), and they will flee from you and lose all self-respect. But lead them by virtue and keep them in order by established morality (li), and they will keep their self-respect and come to you.86 The more laws (fa) and ordinances (ling) are promulgated, the more thieves and robbers there will be.3 34For another list of such quotations, see Balazs, Le Traite juridique du "Souei-chou" (cited in note 12), appen. 9. 3 Confucius (551-479 B.C.), as quoted in the Analects, XII, 13. 3 Confucius in Analects, II, 3. 37 Lao Tzu, in his chap. 57. Though he is traditionally said to have been an elder contemporary of Confucius, most scholars today believe that the book bearing his name (known also as the Tao-te ching) dates from the late fourth or early third century B.C. Goodness alone [without law] does not suffice for handling government. Law (fa) alone [without goodness] cannot succeed in operating of itself."8 To have good laws (fa) and yet experience dis￾order-examples of this have indeed existed. But to have a Superior Man (chiin-tzu) and yet experience disorder-this is something which from antiquity un￾til today has never been heard of.39 Laws (fa) cannot stand alone, and analogies cannot act of themselves. When they have the proper man, they survive; when they lack the proper man, they disappear. Law is the basis of good government, but the Superior Man (chiin-tzu) is the origin of the law. Therefore when there is a Superior Man, the laws, though they may be sparing, succeed in being all-pervading. When there is no Superior Man, the laws, though they may be complete, lose their power of orderly enforcement, are unable to respond to the changes of affairs, and suffice only to bring con￾fusion.40 The Legalists (Fa Chia) make no distinction be￾tween kindred and strangers, nor do they differentiate the noble from the humble. All such are judged by them as one before the law (fa), thereby sundering the kindliness expressed in affection toward kindred and respect toward the honorable. Their program might perhaps be followed a single time, but it is not one to be used for long. Hence I say of them that they are stern and deficient in kindliness.4' A good government is one that takes benevolence (jen) and social Tightness (yi) as its basic roots, and laws (fa) and regulations (tu) as its lesser twigs. . . . He who gives priority to the roots, but only secondary place to the twigs, is termed a Superior Man (chiin-tzu), whereas he who lets his concern for the twigs result in damage to the roots is termed a petty man (hsiao jen). ... To ignore cultivation of the roots while devoting effort to the twigs is to neglect the trunk while giving water to the branches. Law, moreover, has its birth in the upholding of benevolence and social rightness, so that to lay great weight on law while discarding social rightness is to 38 Mencius (ca. 371-ca. 289 B.C.), in the work bearing his name, IVa, 1, where he quotes this as a saying of his time. This and the following passages belong to an age when law was coming into wider use. While grudgingly accepting it as inevitable, they emphasize its secondary role in the government of the Confucian ruler. 39 Hsiin Tzu (ca. 298-ca. 238 B.C.), chap. 9 of the work bearing his name; see translation of H. H. Dubs (here modified), The Works of Hsiintze, Probsthain's Oriental Series 16 (London, 1928), p. 123. Repeated in chap. 14 (not translated by Dubs). 40 Hsiin-tzu, beginning of chap. 12 (not translated by Dubs). 41 Ssu-ma T'an (died 110 B.C.), in his essay on the six schools of philosophy, asquoted in the great history begun by himself and completed by his son, Ssu-ma Ch'ien (ca. 145-86 B.C.). This is the Shih chi (Records of the His￾torian), chap. 130. See translation of Burton Watson (here modified), Ssu-ma Ch'ien, Grand Historian of China (New York, Columbia University Press, 1958), p. 46. Ssu-ma T'an, though something of an eclectic, was more inclined toward Taoism than Confucianism. 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