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 ConditionsVOL. 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