Chinese Law

The Chinese legal system originated somewhat 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, advocated harsh penalties to drive the equilibrium crime rate to near zero. 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 the objective not to modify by behavior by punishing and rewarding but by teachint virtue. They feared that a written law code generally available would lead to rules lawyering and supported unequal treatement based on the unequal status of those to whom the law applied.¹

The conflict was briefly resolved in 221 B.C. when the legalists succeeded in taking power as the Ch’in dynasty, the first to unite all of China, but the dynasty collapsed in 208 B.C. with the death of its founder. It was succeeded by the Han dynasty, whose legal system was nominally Confucianist but in fact a hybrid of the two approaches. Under the Han 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.

Little detailed information on the legal systems of the Han and other early dynasties is available, at least in English. My chief source for this chapter is Law in Imperial China by Derk Bodde and Clarence Morris, an account of the legal system of the last Imperial dynasty, the Ch’ing, which ruled from the mid-17^th century to the beginning of the 20^th. The book includes 190 cases, mostly 18^th and 19^th century. The Ch’ing legal system was built on the legal systems of previous dynasties. I do not know how much of what I discuss here was true how much earlier, although some information can be found in Van Gulik 2007, based on a 13^th c. source.

Making Law

Laws originated as official statutes proclaimed by the Emperor and passsed 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, and further expanded by unofficial commentary. Some early writers argued against making the law code publicly available. That does not seem to have actually been done, but in a society where most people were illiterate and lawyers were not available ordinary people would probably have been dependant on government officials and their employees for information about legal rules.

The most striking feature of the cases, official records of activities of the equivalent of a high level appeals court, is that they are not about whether the defendant is guilty—the facts of who did what are generally taken as known—but about what punishment is appropriate. The legal code itself is not so much an account of what is 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, 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. Ordinary punishments ranged from a sentence to wear the cangue,² 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,³ to nominally or actually capital sentences.

One of the oddities 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.⁴ 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” normally 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 might have his sentence 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 clear that a nominally capital sentence usually led to a serious punishment but not execution.

There were three sentences that were actually capital: Strangulation before the assizes, decapitation before the assizes, and the death of a thousand cuts—being tortured to death. Strangulation was considered a less severe punishment than decapitation, since mutilation of the body was held to have undesirable post-mortem implications.

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 many 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 only if one of the other offenders happened to die while the legal process was still ongoing. 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 raise an interesting general question: To what extent does the legal system reflect ideology in the form of religious beliefs, to what extent is it a system whose rules serve 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. Alternatively one might view the pattern as due to punishment becoming less severe over time in a system with serious barriers to explicit change, or as a way of frightening potential criminals⁵ while preserving convicted criminals to serve as state slaves. And the rhetoric of balance might also be seen as a way of maintaining respect for the existing hierarchy of status and authority.⁶ It is hard to find a similar consequentialist explanation for some other features of the legal code, such as the requirement that an official whose parent died abandon his position for the three years of required mourning.

Another feature of the legal system which raises the same question is the degree to which it depended on outcomes rather than on blameworthiness. It was, for example, a particularly serious offense to kill several members of the same family. In one case a defendant was found guilty of doing so and sentenced to punishment, despite the fact that the men he killed had been in the process of attacking 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.⁷ It seems clear from the case that the official was not at fault. He was nonetheless punished for his offense. (“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 is not a requirement for criminal liability; the verdict is based on outcome, not motivation. 8 There are multiple cases where someone commits an offense on orders from a superior member of his extended family; the attitude of the court seems to be that although he must obey the order he is still criminally liable for the act; there appears to be no assumption in the legal system that an individual always has the option of acting in a way that does not violate one rule or another.

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, suggesting that there may be functional explanations for them. ⁸

Filling in the Blanks

The form of the law code suggests that its purpose was 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 were filled in at least two ways—interpolation and ex-post-facto judgements. The court’s verdict often took the form of “the offense is rather like 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 to exile at a distance of 2000 li.” Where the offense did not seem to fit 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 obtained the position by first doing well in the examination for the civil service, an examination testing not legal knowledge or administrative ability but the applicant’s literary ability and knowledge, 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 is that the magistrate might take advantage of his position to build local support and thus convert the centralized bureaucracy into a de facto feudal system. One way of keeping that from happening was to forbid a magistrate from being assigned to his own home district and to shift magistrates from district to district every few years. Another was to forbid a magistrate from marrying a woman from his district or owning land in it.⁹ Further, any penalty a magistrate imposed 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.

Appeals and Accusations

A sentence of bambooing could be imposed by the district magistrate but must 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 very rare or, perhaps more plausibly, that most of what was nominally done by the Emperor was in fact done by his staff.

It was possible, but hazardous, for a private individual to appeal a verdict to a higher court, either by lodging an accusation that the lower court had refused to consider or by protesting a decision by the lower court. The appellant was subject to punishment if he was either judged not to have exhausted all lower level options or to have made a false accusatin. In one case included in Law in Imperial China, the court found that the accusation was for the most part true and the defendant against whom charges had been dismissed was guilty of an offense, but punished the accuser much more seriously than the accused on the grounds that he had “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 in order to deter such reports. The impression left by the cases is that both accusations from outside the system and appeals of court verdicts, while possible, were generally disfavored. In a variety of cases where A reports an offense by B, the response of the authorities is to investigate both of them.

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 were different than the rules for commoners—and relative status within the extended family. For two individuals at the same level of the family tree—siblings, 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 (uncle senior to nephew, for instance, even if the nephew was older).¹⁰ 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.¹¹ 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 of an offense was a criminal act by the child even if the parent was guilty.

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 design feature serving the same purposes served by features of other legal systems in other times and places. By the mid-19^th century, the Ch’ing were ruling a population of about 400 million and doing it primarily with a small bureaucracy of elite scholar-officials. 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.¹² Biasing criminal penalties in favor of the more senior members of the family can be seen as a way of reinforcing the authority strucure. Forbidding children from informing on their parents removed a potential threat that could be used to undermine the familial authority structure.

Other features of the legal system reinforced the same structure. 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.¹³ 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.¹⁴

There were serious penalties for killing a child without cause; examples include killing an infant and a mother killing her child to prevent the exposure of her own adultery. On the other hand, a husband who killed his wife because she had struck or reviled his parents—as supported by the parents’ testimony—received only 100 blow of the heavy bamboo; the court’s only reservation seems to have been uncertainty as to whether the parents were telling the truth or lying in order to protect their son. The penalty for wantonly killing one’s wife 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. 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 but still substantial—three years penal servitude. Disobedience to familial superiors was an offense, 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 still liable for committing it; the individual was 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 resourced commanded by that system was to discourage resort to law.¹⁵ One way in which this was done was to make the private practice of law, in effect, a criminal offense; individuals who wanted help with their legal problems were expected to get it from the district magistrate and his staff.¹⁶ Another was by making involvement with the legal system potentially unpleasant for all concerned. There was no equivalent of our tort law by which an injured party could use the legal system to compel restitution—all law was, in our terms, criminal, and all prosecution public. 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.¹⁷

Making it costly to interact with the legal system was one way of reducing 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. It was a risky tactic, since both accuser and accused would be imprisoned, and 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. The obvious solution was to make the accusation anonymous. 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 later revised, the exception was removed.

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.¹⁸

One feature of that legal system was the combination of elaborate contractual practice with an almost total absence of contract law. A merchant who had sold goods on credit and not been paid could, if he wished, report his debtor to the district magistrate for the crime of swindling him—but once he had done so, the case was out of the merchant's hands. The magistrate, if convinced of the justice of the claim, might compel repayment—usually only partial repayment. He might do nothing. He might even conclude that the merchant was the one at fault and sentence him to a beating. The legal system enforced by the magistrate was focused almost entirely on criminal acts and criminal punishment. There were only a handful of provisions dealing with matters of contract¹⁹ 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 to be sold in the mainland, importing mainland products to Taiwan, and much else.

The problem of settling commercial disputes without 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.²⁰ No equivalent seems to have developed in China, perhaps due to Imperial hostility to any rival authority.

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 is 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 is 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.²¹ The rules appear to have been designed, wherever practical, to let a loss lie where it fell, thus eliminating the need for legal action to shift it.

Problems arise in situations where canceling a contract and leaving everything in the possession of whoever 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—whether a shipment of grain had been delivered and accepted, but not the precise quality or quantity—that made it possible for third parties to determine at a low cost which party to a contract had violated its terms. Here 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 nearly no use of state enforcement.

References

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

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.

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

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, E.J. Brill, Leiden 1956.