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 Conditions380 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