CHINESE LAW

the law that evolved in China over millennia from earliest times, virtually uninfluenced by foreign jurisprudence until the 20th century, when Western-especially, Western socialist-law was introduced. The oldest complete Chinese law code extant, that of the T'ang dynasty (the work of a commission of jurists in AD 653), represented the culmination of a long period of systemization and social development. The Chinese legal system incorporated elements of contradictory social philosophies of very early China-principally Confucianism and Legalism (or Fa-chia). Both arose as responses to the disorder of the Warring States period (5th to 3rd century BC), the former emphasizing traditional moral teaching (li), the latter advocating the introduction of legally stipulated punishments and rewards (fa). The Confucian ideology contained the idea of social harmony based on ordered relationships and a hierarchy of classes and persons. According to Confucianism, it was the duty of rulers and superiors to educate their subjects or subordinates in benevolent and righteous conduct that would be appropriate to particular personal relations and concrete situations and that would be expressed in proper etiquette and reinforced by rituals. Punishment might serve as a deterrent but would generally be reserved for those persons hard to educate or too obtuse to behave properly. Abstract concepts and generalizations were uncongenial to Confucianists; hence also was the idea of law. As against this, the Legalist, or Fa-chia, school advocated uniform objective standards that would be published for all to know and that would not require special gifts of character to understand or to apply; most important, these standards would be enforced by a system of defined rewards and punishments. Such standards or laws would serve the ruler as an instrument of control over his subjects. Whereas Confucianists saw punishment only as an extension of education, the Legalists opposed any cult of benevolence as softening and corrupting. Over the centuries, this opposition between conflicting principles continued. The Ch'in dynasty (221-206 BC) had leaned toward the Legalist theory as an effective means for strengthening the state and unifying the empire, but the harshness of Ch'in methods made the law unpopular, thus reopening the way to Confucian influence. The dominant political orthodoxy during the succeeding Han dynasty accepted law as a system of punishments but introduced such Confucian ideas as variability according to status and circumstances. The official legal system thus accommodated the Confucianist view that was reluctant to concede law an important position in the state and the more realistic Legalist view that the harsh penal apparatus that had been inherited was useful for dealing with unruly elements and enforcing morality. What the conflicting philosophies had in common were these principles: punishments were necessary as deterrents; inequality and hierarchy were socially desirable; trade was not significant enough to be provided for in law; and moral prescriptions or legal commands, backed by sanctions, would automatically achieve the intended results (this last suggests the failure to see the significance of legal procedures or to wish to improve or develop them). These features were enshrined in the Chinese system. In practice, legal prescriptions served more as models or ideals to be aimed at than as minimum enforcible standards or ways of adjusting conflicting interests. The conception of the emperor's divine role in the universe also had its effect on law. The emperor and his representatives were considered responsible to Heaven for any disturbance in the earthly sphere, and, thus, whenever a disturbance did occur, punishment was considered, in effect, a means of restoring the cosmic equilibrium. The very occurrence of a legal case was deemed a disturbance, and thus a sentence of punishment was almost always the outcome. Furthermore, in general, law was understood as a system of punishments applied by officials to people who deserved them, and no distinction ever developed between civil and criminal liability. The law as such took no account of the claims that private persons or groups might wish to make on one another unless a disturbance occurred, when action would be brought to redress that disturbance. The development of a unified empire brought everyone under one law, but the law recognized the principle of inequality by dividing the people into three ranks below the emperor-the privileged, the commoners, the unfree. It also recognized the gradations of the kinship hierarchy. Officials, whether active or honourably retired, enjoyed certain privileged exemptions with regard to government levies and legal actions; the higher their rank, the more numerous and extensive their privileges. In all cases involving injury, severity of punishment varied according to the relative status of the person concerned; an injury to a person of higher rank or senior in the kinship hierarchy carried a more serious penalty than injury to an equal or inferior (or no penalty at all if the injury was viewed as a legitimate exercise of discipline). All citizens had an obligation to denounce wrongdoers to the magistrate's office of the local prefecture (hsien), an office that on certain days of the month served as the court to which individuals first brought their complaints or questions. It was the magistrate's duty to investigate all cases reported within the area of his jurisdiction, to apprehend suspects, and to bring them to justice-that is, to investigate and study the facts and decide under what section of the penal code the case should be entered and what punishment would be appropriate for the accused and any other persons concerned. (Cases involving persons related to the local magistrate had to be transferred to a magistrate of an adjacent jurisdiction.) If there was no section of the code exactly covering the case, the magistrate could resort to analogies suggesting relevant principles of some kind. A catchall section, "Things which ought not to be done," closed any loopholes otherwise left in the code. No appeal was possible to a principle suggested by the precedent of an earlier case, though previous decisions were included in revisions of the code for reference purposes. Time limits for dealing with cases were specified, but there were virtually no restrictions on the methods that a magistrate might use either in his investigation or in eliciting a confession of guilt, which was required before conviction. Thus it was not unusual for accused persons to be beaten in court or sometimes even tortured. If a plaint proved to be unfounded, an unjustified accuser was liable to suffer the punishment that would have been meted out to the accused if convicted, and the magistrate himself was liable to administrative sanctions for any errors that he committed in applying the code. Most Chinese in consequence were very reluctant to become involved in court proceedings, and magistrates themselves were advised, in unofficial handbooks, to be cautious in accepting cases and to counsel parties to try to reconcile their differences without resort to the court. Apart from certain categories of persons-such as women, juveniles, the aged, and those entitled to privileges-accused persons were not allowed to be represented in court. Consequently, no profession of defense lawyers, advocates, or counsel developed in China. Excluding those who received fees for writing petitions on behalf of others, the only persons specialized in legal work quasi-professionally were magistrates' legal secretaries. These specialists passed on their expertise to the disciples whom they accepted for training and whom they then recommended to a magistrate for employment as personal legal secretaries. Magistrates depended greatly on the knowledge and experience of these men to save them from errors, and some men could acquire considerable reputation for skill in this work and were relatively well paid. Some secretaries later became magistrates themselves by passing the regular official examinations for entry into the civil service. Cases were referred upward through a hierarchy of courts roughly corresponding to the state's administrative hierarchy. (Although minor punishments could be administered locally, all cases requiring punishment more serious than beating with a bamboo had to be referred to higher authority according to the gravity of the case. Unsatisfied individuals might also appeal to higher courts.) A slight procedural difference was made between cases requiring a ruling concerning personal affairs (marriage, property inheritance, and so on) and those involving prosecution for crimes-a difference not quite the same as the Western distinction between "civil" and "criminal." At the provincial level, cases of the "personal" category were referred to the provincial treasurer's office and went no further, whereas those of the "criminal" category went to the provincial judicial commissioner. Cases beyond the competence of these offices and all cases judged by analogy were referred to the Department of Punishments at the capital, and cases serious enough to merit the death penalty were referred to a court composed of the three chief legal bodies at the capital for a recommendation that was then referred to the emperor himself for final decision. The final decision might be deferred two years, which offered an accused person a chance of surviving until amnesty or final acquittal-if he survived the rigours of Chinese jails. Stemming from a distinct philosophical tradition and unique historical experience, Chinese law retained its own special character until the 20th century. Moreover, China's achievements in law as in other cultural matters strongly influenced neighbouring lands in the Far East. The bordering region of Korea, for instance, was colonized by China for four centuries (1st century BC to 3rd century AD), and the ensuing cultural similarities have been compared with Roman influence on Britain. Certain Korean kingdoms drew up law codes on the Chinese model as part of a deliberate program of Sinicization. In Japan, too, during the 7th century AD, Chinese political institutions were introduced, and laws on the T'ang model were compiled, including a penal code, administrative statues, and supplementary regulations. Chinese influence revived in Japan in later centuries, and commentary based on the Ming Code was invoked by feudal lords in codifying the law of their domains; both code and cases were cited even when the substance of these decisions was clearly Japanese. The influence of Confucianism, strong in Tokugawa Japan (1603-1867), undoubtedly led the Japanese to prefer mediation to litigation in interpersonal disputes.