Law in China: The Tug of Tradition, the Pull of Capitalism (original) (raw)
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The Early Roots and Development of Chinese Criminal Law: The Xia and Shang Dynasties
Tsinghua China Law Review, 2021
Little is known about the substance, nature, and procedure of early Chinese law. This is lamentable as it is generally accepted that the Chinese legal tradition is one of the oldest enduring legal systems of the world. To address this lacuna, available records and literature on the earliest known Chinese dynasties — the Xia Dynasty (夏, c. 2000–1600 B.C.) and the Shang Dynasty (商, c. 1600–1100 B.C.) — are surveyed, with the goal to cautiously and judiciously explore the social and legal life of the earliest of Chinese civilizations. Given that penal law (punishment) constituted the essence of early imperial Chinese law, the important legal principles and practices with regard to the criminal and penal laws of that time are identified and explained, and its legal development from approximately 2000 to 1100 B.C. outlined. Particular attention is paid in the analysis and discussion of this article to two early relics from the Chinese legal tradition — the Five Punishments (五刑), and respect for filial piety (孝). Despite the fact that so little is known about the early Chinese criminal and penal laws, it is shown in this article that these two relics from the early of Xia and Shang Dynasties have had a lasting influence on the subsequent development of Chinese law, not only in the imperial times, but also to this day.
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This article examines the intense debates over the New Criminal Code of Great Qing (Da-Qing xin xinglü) in the National Assembly (Zizheng yuan) during the Qing empire's New Policy Reform (1901-11). The focus is on the conflict between those who drafted and supported the new code and those who expressed reservations, especially over reform of the laws on filial piety and fornication. The issue of reconfiguring the family and social order through law was closely related to the overarching agenda of twentieth century legal reform in China-making an empire that "ruled through the principle of filial piety" into a modern nation-state that had direct relationships with its citizens. More importantly, an analysis of the late Qing debate over family law enables this article to problematize such concepts as "Chinese" and "Western" during this crucial moment of China's empire-to-nation transformation. It showcases the paradox of China's modern-era reforms-a contradiction between imposing Western-inspired order with a largely indigenous logic and maintaining existing sociopolitical order in the name of preserving national identity.
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Adultery Law and State Power in Early Empires: China and Rome Compared
Asian Journal of Law and Society, 2024
As ancient China and Rome transformed into empires, both states showed an increasing interest in regulating family ethics and individuals' sexuality. Using excavated documents and transmitted texts, this article compares legal statutes and practices against illicit consensual sex in early imperial China (221 BCE-220 CE) with those in the Roman empire. On the one hand, both legal systems aimed at consolidating social hierarchies based on gender, status, and generation. On the other, the Roman and Chinese statutes had different emphases due to their respective political, social, and cultural contexts, and the actual penalties for adultery and incest differed significantly from those prescribed in the statutes. In both empires, control over individuals' sexuality facilitated state power's penetration into the family during empire-building, giving rise to laws in areas that had been largely left to customs and individual will.
The Chinese Theory of Criminal Law
Journal of Criminal Law and Criminology (1931-1951), 1948
The author received his advanced degrees from Stanford University. He has published two books: "Oriental and Occidental Cultures Contrasted" (An Introduction to Culturology) and "New China in Verse." Both are publications of the Gillick Press, Berkeley, California in the years 1943 and 1944 respectively. Dr. Cheng returned to China in April, 1946, and was appointed Professor of English in National Anhwei University, where he is now teaching.-EDrroR. Chinese legal thinkers of the past believed the foundation of a nation is in morals, rituals, and ethics, and that law was only a supplement to rites* or a means to achieve an end. Hence, government by rites, not by law. To protect human rights is the main object of law but in China law is subordinate to morality, so that legal procedure is much simpler than moral procedure. The emphasis on mores and folkways makes law simple and constant. The Chinese settle their difficulties not by going to court but by holding a community council to settle disputes, chiefly on moral considerations. For in China each village is self-governed by rite. To pay revenue is the people's duty to government. To do their work diligently is their duty to themselves and their families. They settle their difficulties by themselves. Law is not of much use in villages. Confucianism dominated the whole sphere of Chinese thought as the following quotations will show: If the people be led by laws, and uniformity sought to be given them by punishment, they will try. to avoid punishment, but have no sense of shame. If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good. 1 Chi Kang asked Confucius about government, saying, "What do you say to killing the unprincipled for the good of the principledt" Confucius replied: "Sir, in carrying on your government, why should you use killing at all? Let your evinced desires be for what is good, and the people will be good. The relation between superiors and inferiors is like that between the wind and the grass. The grass must bend when the wind blows across it."1 2 If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success. When affairs cannot be carried on to success, proprieties and music will not flourish. When proprieties and music do not flourish, punishments will not be properly awarded. When punishments are not properly awarded, the people do not know how to move hand or feet. 8
Officials and Chinese Justice: Public and Private Wrongdoing in Qing Law
T’oung Pao, 2020
This article examines the law of officials during the Qing dynasty (1644-1912), focusing on the body of statutes, substatutes, and regulations pertaining to the organization and operations of the imperial Chinese bureaucracy. The general objective of the article is to draw attention to the law of officials and its significance within the Qing legal system. A more specific goal is to examine how official wrongdoing was defined, differentiated, and dealt with in Qing law, highlighting the crucial distinction between the two main categories of official wrongdoing: “public wrongdoing” (gongzui 公罪) and “private wrongdoing” (sizui 私罪). Part I analyzes the legal distinction between public and private wrongdoing; Part II examines the historical antecedents of the public-private distinction, as expressed in the philosophical writings and the codified law of earlier dynasties; and Part III analyzes the substantive and procedural consequences of the public-private distinction on Qing officials.