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. 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 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