Chinese Law

The Chinese legal system originated over 2000 years ago in the conflict between two views of law, legalist and Confucianist. The legalists, who believed in using the rational self-interest of those subject to law to make them behave in the way desired by those making the law, were accused by later writers of advocating harsh penalties to drive the equilibrium crime rate to near zero.[1] They supported the ideas of a strong central government, equal treatment under law, and written law available to all. Confucianists saw the issues in terms of morality rather than law and sought to modify behavior not by punishing and rewarding but by teaching virtue. They supported unequal treatment based both on the unequal status of those to whom the law applied and on their differing relationships.[2]

The conflict was briefly resolved in favor of the legalists in 221 B.C. when the kingdom of Qin defeated all rivals, creating the first united Chinese empire, but the dynasty collapsed in 208 B.C. after the death of its founder. It was succeeded by the Han dynasty, whose legal system was nominally Confucianist but in practice a hybrid of the two approaches. Positive law continued to be enforced by penalties, but the penalty depended on the status of the offender, both absolute status (official, slave, commoner, …) and status vis a vis the victim.

For the original draft of this chapter my main source was Law in Imperial China by Derk Bodde and Clarence Morris, an account of the legal system of the last Imperial dynasty, the Ch’ing,[3] which ruled from the mid-17^th century to the beginning of the 20^th. The book includes 190 cases from high level courts, mostly 18^th and 19^th century. Some of my conclusions had to be revised on the basis of later books that made use of case records from local courts that became available as a result of the opening up of China. I concluded that while Bodde and Morris had correctly interpreted their sources, documentary evidence produced by the Confucianist elite, those sources misrepresented their own legal system, portraying what it ideally should have been not what it actually was.

Large parts of the legal code were carried down from one dynasty to another, with one source estimating that 40% of the Ch’in code comes from the T’ang code, created about a thousand years earlier. Some information on earlier codes can be found in other sources, such as Van Gulik’s translation with commentary of a 13^th c. collection of cases and Wallace Johnson's translation of part of the T'ang code.

 

Making Law

Laws originated as statutes proclaimed by the Emperor and passed down, with some changes, from dynasty to dynasty. They were expanded by the addition of substatutes based either on additional decrees or on precedent established by officials at a high level, expanded further by official commentary printed along with the statutes, further expanded by unofficial commentary. While some early writers argued against making the law code publicly available, that policy does not seem to have been followed, save possibly under the Song dynasty.[4] But in a society where most people were illiterate and where giving legal advice or assistance without official authorization risked severe penalties, ordinary people depended largely on government officials and their employees for information about legal rules.

One striking feature of the cases in Bodde and Morris, official records from the equivalent of high level appeals courts, is that they are not about whether the defendant is guilty—the facts of who did what are generally taken as known—nor, as in an appeals court in the modern U.S. system, about whether the lower court acted correctly in convicting the defendant, but about what punishment was appropriate.[5] The legal code itself was not so much an account of what was forbidden as an attempt to specify, for every possible offense, the proper punishment.

Punishing Offenses

Neither imprisonment nor fines were included in the normal list of punishments,[6] although a prisoner might be imprisoned for substantial periods of time in the process of passing through the legal system and payment of a fine was sometimes permitted as a substitute for a more serious penalty or as compensation to a family injured by the crime. Punishments ranged from a sentence to wear the cangue,[7] a device whose purpose was in large part humiliation, through various numbers of blows by the light or heavy bamboo, through penal servitude of various sorts and lengths of time, life exile at various distances from the convict’s home province,[8] to nominally or actually capital sentences.

One oddity of the system of punishments was that they were not always all they claimed to be. A sentence to fifty blows of the light bamboo in fact meant twenty, due to changes of law after the Manchu conquest, and similarly for all sentences of similar form.[9] Some nominally capital sentences—decapitation after the assizes or strangulation after the assizes—were in most cases serious but non-capital.

At the assizes, convicts were divided into four categories. Those sentenced to deferred execution usually had their sentence commuted to penal servitude, sometimes after a two year delay to have the sentence confirmed. Those found worthy of compassion, either because they were young, old, or because there were extenuating circumstances to their offense, had their sentence commuted to exile or penal servitude. A convict found to be an only son who needed to remain at home to care for his parents or, his parents being dead, to tend their shrine, might have his death sentence reduced to forty blows plus two months wearing the cangue.

There remained a fourth category, convicts “deserving of capital punishment.” Their names were written on a sheet on which the Emperor drew a circle, separating those who would be executed from those to be held over for another year; it is unclear whether being inside or outside the circle implied execution. A defendant guilty of family offenses who survived this process twice had his sentence commuted to deferred execution; for other offenses it took ten times. One source suggests that a single round of the process selected fewer than 10 percent of the names for execution. Given the multiple possible outs, it seems likely that most nominally capital sentences led to serious punishments but ones short of execution.

There were three sentences that were actually rather than nominally capital: Strangulation before the assizes, decapitation before the assizes, and death by slicing ("the death of a thousand cuts"). Strangulation was considered a less severe punishment than decapitation, since mutilation of the body was held to have undesirable post-mortem consequences.

A further disconnect between nominal and actual sentences occurred through the process of redemption. The court could, but need not, permit a convict to substitute a money payment for the penalty he had been sentenced to; the payments seem to have been small relative to the penalties they replaced. In some cases, such as a doctor who unintentionally killed his patient, the reason for permitting redemption seems natural enough to the modern reader. But in other cases where it would seem appropriate to us, such as a son killing the killer of his father or someone who unintentionally killed a would-be rapist in the process of preventing his crime, it was not granted.

Why would a defendant be sentenced to capital punishment and then permitted to buy his way out for a nominal sum instead of simply being sentenced to some much lower penalty? One possible answer is that cosmic balance required the payment of a life for a life, but it could be a nominal life. The same doctrine may explain another oddity in the law. If several people were jointly responsible for a murder and one of them sentenced to death, his sentence could be commuted to something non-capital if one of the other offenders happened to die while the legal process was still ongoing—presumably because cosmic balance had thus been satisfied. A final oddity is that executions could only occur at certain times of the year, with the details of the restriction varying over time but apparently linked to religion.

These rules and others raise the question of to what extent the legal system was based on religion, broadly defined, to what extent on consequentialist purposes. One can interpret nominally capital sentences as reflecting the needs of cosmic balance, provided one believes that the cosmos can be balanced by purely nominal executions.[10] Alternatively one might view the pattern as a result of punishment becoming less severe over time in a system with  barriers to explicit change or as a way of frightening potential criminals[11] and so deterring them while preserving convicted criminals to serve as state slaves. The rhetoric of balance might also be seen as a way of maintaining respect for the existing hierarchy of status and authority.[12] It is harder to find consequentialist explanations for some other features of the legal code, such as the requirement that an official whose parent died abandon his position for twenty-seven months of required mourning.

Similar questions are raised by another feature of the legal system, the degree to which it depended on outcomes rather than blameworthiness. It was, for example, a particularly serious offense to kill several members of the same family. In one case a defendant found guilty of doing so was sentenced to severe punishment despite the fact that the men he killed had attacked him and his companions and one of them had just killed his father. In another case an official was found guilty of a serious offense because the servants bearing his sedan chair carried it through the gate of a temple in a rain storm rather than setting it down outside the gate so that the official could enter the temple in the proper manner.[13] “His failure to dismount from the chair in time, though occasioned by the great accumulation of rainwater on the ground and the error of the chairbearers, nevertheless constitutes a violation of the established regulations. Accordingly, he should be sentenced to 100 blows of the heavy bamboo under the statute on violation of imperial decrees … . Because he has already been dismissed from his position … ."

In this and other cases, intent was not required for criminal liability; the verdict was based on outcome, not motivation.[14] That again might be interpreted as a policy driven by religion, the fear that if cosmic balance was not maintained by punishing someone for a violation of the cosmic rules, the result might be an increased risk of natural catastrophes. On the other hand the equivalent—strict liability torts—exist in modern legal systems as well, which suggests that there may be explanations for them, possibly functional, that do not depend on the peculiarities of Chinese culture.[15]

Filling in the Blanks

The law code was designed to provide for every possible offense a specified punishment—the mission of the U.S. sentencing commission carried to the Nth degree. Despite the extent and detail of the code, it failed to do so. Gaps could be filled by interpolation, with court verdicts taking a form such as “the offense is similar to XYZ, for which the punishment specified in the code is life exile at a distance of 2500 Li from the offender’s home province, but somewhat less serious. The defendant is sentenced by analogy to exile at a distance of 2000 li.” Where the offense could not be fitted into any category in the code, the court felt free to find the defendant guilty of doing what ought not to be done or of violating an Imperial decree—not an actual decree but one that the Emperor would have made had the matter been brought to his attention. The underlying assumption was that people ought to know right from wrong without the assistance of the legal code, hence it was proper to punish those who did wrong, although the lack of a relevant legal rule raised difficulties in setting the appropriate punishment.

The Structure of Authority

The key figure in the bureaucracy that ran China was the district magistrate. The population of his district could range from 80,000 to more than 250,000; the magistrate functioned as the single representative of imperial authority, a combination mayor, chief of police, and judge. He qualified for the position by performing well in the examination for the civil service, an examination which tested not legal knowledge or administrative skills but literary ability and expertise, and then performing well in administrative positions at a lower level. He was assisted in his duties by a staff of lower level officials, some his own employees who moved with him from place to place, some permanently located in the district.

One risk of putting so much power in one pair of hands was that the magistrate might take advantage of his position to build local support and thus convert the empire, in theory a centralized bureaucracy, into a de facto feudal system. Precautions to prevent that included forbidding a magistrate from being assigned to his  home district, shifting magistrates from district to district every few years, and forbidding a magistrate from marrying a woman from his district or owning land in it.[16] Any penalty a magistrate imposed that was more serious than bambooing had to be approved at the provincial level, any decision not based on statute, including a decision by analogy, required approval from Peking.

As a final precaution, there was a department of the imperial bureaucracy, the censorate, charged with investigating misdeeds by officials. The officials were chosen from those who did very well on their exams. The censors were chosen from those who did even better.

Appeals and Accusations

A sentence of bambooing could be imposed by the district magistrate but had to be reported one level up to the prefecture and could be appealed to the provincial governor. Cases that led to a sentence of penal servitude were investigated by the district magistrate, reported to the prefecture, decided at the provincial level with the verdict confirmed by the provincial governor, and then reported yet another level up to the board of punishments in Peking. A non-capital homicide case was treated similarly, save that the final verdict was by the board. Capital cases were reviewed by the board, judged at a yet higher level by the three High Courts, and required confirmation by the Emperor, as did any case involving an official. Given the size of the population and the existence of only one Emperor, the implication is either that cases in the last two categories were rare[17] or, perhaps more plausibly, that most of what was nominally done by the Emperor was in fact done by his staff.

A private individual could appeal a verdict to a higher court, either by lodging an accusation that the lower court had refused to consider or by protesting its decision. The appellant was subject to punishment if he was judged either not to have exhausted all lower level options or to have made a false accusation. In one case included in Law in Imperial China, the court found valid the accusation of a defendant against whom charges had been dismissed, but punished the accuser much more severely than the accused. The defendant, a physician whose incorrect treatment had resulted in the death of his patient, was sentenced to strangulation after the assizes but the sentence was then commuted to a payment of 12.45 ounces of silver.[18] The accuser, the father of the victim, was sentenced to a hundred blows of the heavy bamboo for having "embellished the facts" in his accusation. In another case, a higher court found that lower courts had been deliberately misreading a statute in order to punish those who appealed their verdicts. Both cases suggest that the opportunity to appeal decisions may have existed more in theory than in practice.

The State and the Family: Subcontracting Enforcement

In Ch’ing law as in the law of earlier dynasties, legal consequences depended in part on the status of the parties, both absolute status—the rules for government officials and Manchus were different than the rules for ordinary commoners and those in turn different than the rules for groups of especially low status—and relative position within the extended family. All relatives were classified as senior or junior to each other. For two individuals at the same level of the family tree, such as siblings or first cousins, the senior relative was the older. For two at different levels, such as first cousins once removed or uncle/nephew, the senior was the one at the higher level of the tree; an uncle was senior to his nephew even if the nephew was older.[19] The closeness of the relation was defined by the rules determining for how long one was obliged to mourn the death of a relative, depending on the relationship—longest for a parent, shorter as the relation became more distant.[20] Relative status in turn affected penalties. For an offense committed by a junior relative against a senior relative, penalties were increased; for an offense committed by a senior relative against a junior, decreased.

It is common to include among the offenses of oppressive polities forcing children to inform on their parents. Imperial China had precisely the opposite approach. For a child to accuse a parent or any senior relative within two degrees of relationship was a criminal act by the child—even if the accusation was true.[21]

Like other features of the legal system, the treatment of relations within the extended family can be viewed either as an expression of Confucian ideology or as a functional design feature. By the mid-19^th century, the Ch’ing were relying on a small bureaucracy of elite scholar-officials[22] to rule a population of about 400 million. One way of doing so was to subcontract as much as possible of the job of controlling behavior to other authority structures, of which the most important was the extended family.[23] Biasing criminal penalties in favor of the more senior members of the family reinforced the familial authority structure. Forbidding children from informing on their parents removed a  threat that could be used to undermine it.

Other features of the legal system served similar purposes. Repeated disobedience by a child to his parent was an offense that could be punished by exile. It was legal for a parent to beat his child or a husband his wife. If beating a child resulted in his death and there was no excuse for the beating, the punishment was one year penal servitude. If the beating was of a disobedient son but unreasonably severe the penalty was a hundred blows of the heavy bamboo.[24] There was no punishment for a reasonable beating of a disobedient son that resulted in death, and at some periods a father could get official approval to kill a disobedient son.[25]

There were serious penalties for killing a child without cause but a husband who killed his wife because she had struck or reviled his parents received only 100 blow of the heavy bamboo. The court’s only reservation in such cases seems to have been uncertainty as to whether the parents were telling the truth or lying in order to protect their son from the penalty for wantonly killing one’s wife, which was nominally capital—strangulation after the assizes.

In both the familial and other contexts, causing someone to commit suicide was treated as a serious offense.[26] A son who pushed his parent into suicide by theft or acts of turpitude was subject to immediate strangulation, an actually rather than only nominally capital punishment. If the theft or act of moral turpitude had been committed at the parent’s orders, the penalty was reduced to three years penal servitude. Disobedience to familial superiors was an offense but the fact that an offense had been committed under orders from a superior at most grounds for a reduction in penalty. An inferior was expected to obey orders from a superior to commit an illegal act but liable for committing it. He was thus subject to two different authority structures, familial and legal, with penalties for disobeying either even if there was no way of obeying both.

Another way of dealing with the disproportion between the population to be controlled by the legal system and the resources commanded by that system was to discourage resort to law.[27] One way was to treat most private practice of law as a criminal offense, on the theory that “litigation sticks” were troublemakers out to stir up unnecessary conflict. Individuals who wanted help with their legal problems were expected to get it from the district magistrate and his staff.[28] Another was by making involvement with the legal system unpleasant for all concerned.[29] It was legal to torture witnesses in the process of extracting information from them. Participants in the legal process were expected to act as humble petitioners, recognizing the vastly superior status of the officials they were interacting with.[30]

Making it costly to interact with the legal system reduced the amount of work required of the bureaucracy but risked providing an individual with the opportunity to injure an enemy by accusing him of an offense. If the accusation was found to be false the accuser was subject to the penalty that would have been imposed on the accused if found guilty, a risk that might be avoided by making the accusation anonymously. That problem was dealt with in a straightforward fashion by Ch’ing law; for an official to read an anonymous accusation was a criminal offense. When the rule was first promulgated it made an exception for accusations of treason against the Emperor; when the rule was revised by the next emperor, the exception was removed.

 

Between Civil and Criminal

 

“What I will refer to throughout as civil cases were, to the Chinese courts, merely “minor matters” that were handled with procedures that differed only slightly from those used in criminal cases.”[31]

 

The sources I first looked at portrayed the legal system as entirely criminal, with no procedure by which a wronged party could bring suit. That accurately reflected the way in which the legal system was viewed by the Confucian elite and the way in which it appeared in the relatively high level cases reported in the surviving literature. But when records of low level cases became available, it became clear that although the system was criminal in form, it was to a considerable degree civil in function when dealing with what it considered minor matters: land, debt, marriage and inheritance.

For one example, consider the question of a debtor’s obligation to pay his debt. The relevant statute began by limiting the legal interest rate to three percent a month and stating the criminal penalty for a lender who exceeded it. Buried in one of the substatutes was a provision requiring a debtor to pay his debt. A lender who charged a debtor with being in default was accusing him to the magistrate of violating that substatute.[32] If the magistrate found the accusation to be valid he would require the debtor to agree to pay while generously waiving the criminal punishment for the violation, and similarly for other disputes.

The case was, however, still criminal in form. If the parties agreed on an out of court settlement before the case was officially dealt with by the court, they could only request the magistrate to cancel the hearing. He was free to refuse—but in practice, with a heavy schedule of unresolved cases, unlikely to.

A further difference was reflected in the legal change when the final dynasty was replaced by the Chinese Republic. The Imperial law code was, for the most part, carried over unchanged. Local courts continued to rule much as they had. But the Supreme Court, in resolving appeals, treated the minor cases as disputes between the parties, as they would have been treated in western civil law.

An example discussed in some detail by Bernhardt was the procedure for appointing an heir for a man who had died without male issue. The decision, under both Imperial and Republican law, was made by the widow and the man’s kin. The heir had to be a relative of the dead man of the same generation as his son would have been; if no suitable relative was available, a candidate of the same surname, presumed to be a distant relative, could be substituted.

There were cases under the Republic in which the widow selected an heir who did not meet those requirements and one of the kinsmen objected. If the neither the plaintiff nor his son or grandson was qualified as heir the Supreme Court would rule against him for lack of standing. That left the widow’s selection in place even though the court recognized that he did not meet the legal requirements.

Like a modern American court in a tort dispute, the court was providing justice only between the parties. An Imperial magistrate, with a broader view of his obligations, would have arranged for the replacement of the heir selected by the widow with one who met the legal requirements. Along similar lines, an Imperial magistrate dealing with a sufficiently tangled property dispute might resolve it by awarding ownership to neither party, converting the land to state property with its income dedicated to some good cause such as supporting a school. His job was doing justice. The plaintiff was merely the person who had brought an instance of injustice to his attention.

 

Contract Without Law

In 1895, as part of the treaty of Shimonoseki, China ceded the island of Taiwan to Japan. The Japanese government wished to maintain the existing legal system; to do so it had to discover what it was. A scholarly commission was established. Its report provides us with a detailed picture of the legal system of at least one province of Imperial China at the end of its last dynasty.[33]

One feature of that system was the combination of elaborate contractual practice with an almost total absence of contract law, at least at the Imperial level. [34] The code contained only a handful of provisions dealing with matters of contract and some, such as the statute specifying a maximum interest rate, appear to have been ignored in practice.

Non-state hierarchical structures provided a possible mechanism for settling contract disputes within family, clan or guild. But merchants in Taiwan engaged in extensive large scale dealings that cut across all such categories, buying bulk agricultural products to ship across the straits for sale in the mainland, importing mainland products to Taiwan, and much else.

The problem of settling commercial disputes outside of state courts was dealt with in medieval Europe in part by the development of private courts at the major trade fairs, run by merchants and relying heavily on reputational enforcement.[35] No equivalent seems to have developed in China, perhaps due to Imperial hostility to any rival authority. There were brokers and shipping agents who functioned as middlemen between buyers and sellers, but they were officially appointed and kept records of transactions on behalf of the government. It was a criminal offense to fill their role without government authorization.[36]

Nonetheless, Chinese merchants developed an elaborate set of contractual forms, including a variety of form contracts, supporting an extensive and sophisticated network of commercial relations. Part of the explanation of how they did so was presumably the existence of reputational enforcement, part the availability of state courts for dealing, when all else failed, with parties engaged in deliberate and obvious violations. But much of the explanation lies in the details of the private contract law that developed within that framework—a system of rules designed to minimize the reliance on courts and external enforcement.

One example was the rule that we call caveat emptor. Under any circumstances short of explicit fraud—gold bars that turned out to be gold plated lead, for example—a merchant who had accepted delivery of goods had no recourse if they turned out to be defective. Another was the linkage between possession, ownership, and responsibility. Goods in my warehouse were mine, whether or not they were about to become yours, and I bore the risk of any damage that occurred to them.[37] The rules appear to have been designed, wherever practical, to let a loss lie where it fell, eliminating the need for legal action to shift it.

Problems with such a system arise in situations where canceling a contract and leaving everything in the possession of whomever at the moment has it will advantage one party, a situation that encourages opportunistic breach. One solution is to redesign the contract so that the two parties' performance is more nearly synchronized, reducing the incentive of either to breach. An alternative is to rely on reputational enforcement, structuring the contract so that the incentive to breach, if it occurs, is likely to be on the party who will suffer reputational penalties from breaching.

An example in the Chinese case is provided by contracts for future purchase of commodities at a pre-arranged price. Such contracts were not considered binding until there had been at least partial performance by one party. Typically that consisted of a deposit paid in advance by the purchaser. By adjusting the size of the deposit, the parties could take account of both how large the incentive of the seller to breach might become—depending on the range of likely prices changes between contract formation and delivery—and how much each party was constrained to keep to the deal by reputation.

A buyer who breached forfeited his deposit, a result that required no judicial intervention since the deposit was in the possession of the seller. That left an obvious problem—a seller who breached but kept the deposit. Presumably that was prevented by some combination of reputation and the threat that such an obviously criminal act would provide the buyer sufficient grounds for going to court.

Important elements in making the system work were the existence of a system of written forms using standard boilerplate terminology understood by the parties and others in the trade, and the use of seals—"chops"—to provide clear evidence of assent to a contract. So long as issues of fact were simple, such as whether a shipment of grain had been delivered and accepted but not the precise quality, that made it possible for third parties to determine at a low cost which party to a contract had violated its terms. The third party might be either another merchant interested in knowing who could be trusted or, in extreme cases, a district magistrate interested in who had committed a criminal offense and should be punished accordingly.

Whatever the mechanisms responsible—interested readers can find a more detailed account in Brockman's chapter—Chinese merchants a century ago succeeded in maintaining a sophisticated system of contracts with very little use of state enforcement.

References

Allee, Mark A., Law and Local Society in Late Imperial China: Northern Taiwan in the Nineteenth Century. Stanford University Press 1994.

Benson, B. L. (1998). "Law Merchant," In P. Newman, (ed.). The New Palgrave Dictionary of Economics and the Law, London: Macmillan Press.

Bernhardt, Kathryn and Huang, Philip C.C., Civil Law in Qing and Republican China.

Bernhardt, Kathryn, Women an Property in China, 960-1949, Stanford University Press 1999.

Bodde, Derk and Morris, Clarence, Law in Imperial China, Harvard University Press 1967.

Brockman, Rosser H., "Commercial Contract Law in Late nineteenth-century Taiwan," in Jerome Alan Cohen, R. Randle Edwards and Fu-mei Chang Chen, editors, Essays on China's Legal Tradition, Princeton University Press 1980, pp. 76-136.

Ch’en, Paul Heng-chao, Chinese Legal Tradition Under the Mongol: The Code of 1291 as Reconstructed, Princton University Press, 1979

Friedman, David, “From Imperial China to Cyberspace: Contracting Without the State,” Journal of Law, Economics and Policy, July 2005.

 

Hayden Windrow, A Short History of Law, Norms, and Social Control in Imperial China, 7 APLPJ 245 (2006) [check for early legalist evidence]

Head, John W. and Wang, Yanping, Law Codes in Dynastic China, Carolina Academic Press 2005.

Hegel, Robert E., True Crimes In Eighteenth Century China: Twenty Case Histories, University of Washington Press, 2009.

Huang, Philip C. C., Civil Justice in China: Representation and Practice in the Qing, Stanford University Press, 1996.

Johnson, Wallace, tr., The T'ang Code.Volume I, General Principles, Princeton University Press, Princeton, N.J.

Johnson, Wallace, “Status and Liability for Punishment in the T'ang Code,” Symposium on Ancient Law, Economics and Society Part II: Ancient Rights and Wrongs,Chicago-Kent Law Review, Vol. 71, 1995-6, pp. 217- (Details of T'ang rules, including the fact that if several members of a family took part in a crime, only the senior was punished).

Sanft, Charles, “Notes on Penal Ritual and Subjective Truth under the Qin,” Asia Major, Third Series, Vol. 21, No. 2 (2008), pp. 35-57.

Van Gulik, R.H., Crime and Punishment in Ancient China, 2^nd edn 2007. Originally published as T’ANG-YIN-PI-SHIH, Parallel Cases from Under the Pear Tree”: A 13^th Century Manual of Jurisprudence and Detection.