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). 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, 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