Comparative Law
Chinese Law: Introduction

This section contains a brief Prolegomena (on this page), plus a selective annotated bibliography of Chinese legal history. We have had in mind the needs of comparative law researchers based in other fields, and have thus kept the bibliography as short as seemed practical; we have not mentioned things just because they exist. The history of Chinese thought, however relevant, is largely excluded, and writings more narrowly concerned with law are sampled rather than listed in extenso. However, the context of law in administrative procedure, and its cultural alternative in li, have been included, and it has seemed best not to ignore controversies about claimed early law codes, or to omit from these lists some widely quoted but unsound works to which an unwary reader might turn for summary information about Chinese law.

Contents

The bibliography is contained on four separate pages. In a word, law in the familiar sense first appears in the Warring States and is further developed under the Empire; law is a key element in the social engineering which produced the Empire. Much of law resides in administrative rules rather than in statutes. Below are links to the four pages, plus shortcuts to some of the more important subtopics on each. A general Prolegomena follows this contents list.

Prolegomena

Initial Caution. China has no purely antiquarian interest in its own past. But in the classical period, starting in the 05c and cresting in the 04c, it developed an intensely practical interest in that past. It wished to find in it some countenance or precedent for doing what it was then doing: architecting an empire out of a collection of medium-sized rival states. One result was that many pseudo-ancient documents were forged, precisely to be used in the political theory debates of that time. Apart from the production of whole documents, many stories of ancient persons were told, and many facts of ancient times were asserted, without any evidence as their support, and with only present theoretical need as their excuse. The result is an extremely corrupt situation in the texts which are our sources for the classical period. Many of those texts are wholly fraudulent, or contain designedly fraudulent material, all tending to put back into remote antiquity the legal system then under construction, or an ideal model for it, or in some cases an alternative to it. These constructs are of tremendous interest, but as evidence for the mind of the high classical period, not for anything earlier.

Disentangling the direct from the oblique evidence, assigning to all the pieces their correct relative date, dating the resulting relative system at some points in absolute terms, and drawing the implications of the source texts once they are chronologically arranged, is the task which the Warring States Project has set itself. Some of those results are reported here, along with the more standard opinions which they are designed to replace in the estimation of the careful scholars of the future. The problem itself is complex, our result is accordingly complex, and we ask the patience of readers with this complexity.

Note on the Term Legalism: The dominant form of early Chinese statecraft thought, from the 04c onward when it first begins to be visible as such, is conventionally called Legalism; a technically problematic term (considered by some to be problematic in Chinese as well) for which, however, no workable substitute has been found, and which in any case is not wholly unjustified due to the reliance on law, by the viewpoints usually grouped under that term, as a major technique of social constraint. Their texts are the Gwandz, the Shang-jywn Shu ("Book of Lord Shang:), and the Han Feidz. "Legalist," then, is here regarded as an imperfect but not wholly arbitrary label for this line of thought. Endless debate on such terms is one of Sinology's red herrings.

Sources. Before the 20th century, no pre-Imperial law codes or legal documents were known to exist. Archaeological discoveries during the 20c have provided the basis for a more realistic study of early Chinese legal concepts and practices, though they have not validated the Warring States myths of Spring and Autumn law codes. Separately, texts transmitted through normal channels have been subject to the usual vicissitudes of transmission. The subject is therefore difficult, and work on the difficulties has only begun. Caution is advised.

Other Normative Systems (Li). Chinese law blends into another area, the prescription of social norms by a li "propriety" system, which in large part is the creation of ritual specialists. The li texts are essentially idealizations, and must be used with caution as descriptions of any period, including the one in which they were written. Their chief value is in recording the current state of Confucian ritual thinking about society. This bibliography does not include the li texts, but sometimes notices their perils as evidence for actual behavior. The existence of this second li system is a distinctive feature of the Chinese case, though there are parallels with the cultic provisions which are found mixed in with the civil provisions in the Biblical and Assyrian law codes of West Eurasia.

The li system in China has some of the traits and functions of priestcraft in other societies, but it lacks all traces of gods or sacrifices to gods, and has at most the ancestors of a family, or a vague Heaven, as its nonliving referents. It is essentially deportment elevated to the status of a cultural definition, in a way that the authors of Leviticus would have entirely understood. Li might be described as an elaborate set of behavioral prescriptions having the bulk, and at certain times also the effective force, of a legal system, with the head of the household as its sole local arbiter; there are perhaps parallels in Roman custom. As the Imperial state became increasingly affected by Confucian ideas, behavior (at least elite behavior) tended increasingly to conform to Confucian norms; some li prescriptions (including filial piety) even came to be mandated by law. This Confucianization process required thousands of years, and is still incomplete, though in some respects far advanced, at the present time.

The Confucians in the 04th century, and most Chinese in subsequent ages, have tended to identify their culture with the li norms, not (as would be the case in the West) with its law tradition. Western law happens to have developed in such a way as to set bounds on the power of the government, in this sense, law comes close to defining what is distinctive about Western civilization. Chinese law never acquired that function. It served instead to implement the power of government. An attempt was made (again by the early Confucians) to use li, or proper procedure, we might almost say social or bureaucratic due process, as an institutional defense of the role of the high official offering criticisms of government. (The history of the American "Tenure of Office" act offers something of a notional parallel). It did not work, and the style of ministerial behavior, to say nothing of peasant behavior, continued to be determined by the autocratic nature of the Chinese state. Offered criticism, even if offered by officials whose principal duty was to offer it, was not only conventionally but literally "deserving of death." Death not infrequently followed. The retention of personal courage in the ethos of the serving elite, long after they had lost their original military function, is thus not without its rationale.

The State. Law codes are not the sole point of interest for legal history, but they are one of its valid categories. Despite claims made in early documents for a still earlier ancestry, Chinese law codes are late. They appear to be associated with the rise and maturity of the new bureaucratic state, whose first beginnings may lie as far back as the late 06th century, but whose full operation, along with the operation of the mass infantry army which is the military signature of the new state, are not seen before the middle 04c. It is at this same time that trade and a money economy begin to be clearly visible in the record. It is of theoretical interest that, on their first real or claimed appearance, law codes were criticized precisely (in certain quarters) as offering grounds for action by the lower populace; as in some sense empowering that populace. The harder core Legalist texts openly recommend arbitrary government by terror, as best instilling habits of obedience in the serving elite. The serving elite never found a structural refuge from the thing they served.

It may put the subject in perspective to reflect that the one great event of the five pre-Imperial centuries was the creation of the bureaucratic state. Learning how to master the difficulties and possibilities of this new structure was the first priority of the formative Warring States period. The chief concern of the people at the top was to get the new administrative structure to work, to articulate, to do what they wanted it to do, without involving them in direct attention to endless small details. The same applies to that most powerful of new tools, the mass infantry army. It too had its technique, which the classic military manuals (the oldest being again of 04c date) are at pains to discover and systematize; we might say: to codify.

Administration. With both the government and the army, that is, in both its civil and military aspects, the new state was eventually mastered, by new managerial skills above, and by new devices of social engineering below. Law in the sense familiar in Western tradition was only one tool in the new kit (its advantages to the populace were initially advertised as a way of conciliating the populace). Often when we look for law in the early Chinese texts, we find instead personnel recruitment and accountability (sying-ming), managerial skills (shu), or the cultural conditioning of the new serving elite and the newly included larger population. Stories about the role of law do occur in the texts like occasional raisins, and we now know from archaeology that legal procedures did develop and ramify in the high classical period. But talk about administrative technique makes up a far larger proportion of those same texts. Even the moralizing schools (the Confucians and the Micians) addressed questions of mass motivation, official integrity, administrative subordination, and cultural cohesion (though rarely law, which on the whole they opposed). The elite Confucians in that way contributed to what became the dominant Imperial ideology, an ideology now called "Confucian," but in fact blended from many things, including law, of which Confucius had never heard, and which he would have regarded with antipathy.

This situation is not as strange as it may appear. Comparativists may find, for instance, that it is analytically fruitful to consider the Mosaic laws, not as growths of a law plant per se, but as social engineering. Certainly the sense of an unruly populace in Exodus is echoed by the opinion of the Shang-jywn Shu about the rowdy masses with which it is concerned. Both texts seem to mark the moment in a tradition when some higher authority first takes detailed responsibility for the conduct of the lower population.

Comparative Value. Chinese law in the familiar sense does eventually come to exist. Given its lateness in absolute terms, we have in the case of China an unusual opportunity to observe the emergence of what is recognizably "law" within a somewhat well documented society. China is thus a possible laboratory test of any theories about the conditions and associations with which the appearance of legal structures tends to be associated in any culture. Our own suggestion, as will be obvious from the bibliography headnotes and annotations, is that codified law probably tends to occur at that point in social evolution when the state becomes fully engaged, not just with the ruling elite (whose common ethos does much of the work of law), but with the larger populace, whose behavior was outside the norms of the ruling ethos.

That engagement did not occur in China until the high Warring States. It was accompanied, among other things, by the appearance of a nationalism concept (loyalty for the first time had not an individual, or an ethos, but a state, as its object); by the spread of non-elite wealth; by the appearance of such evidently popular values as filial piety in the elite cultural complex. It also featured appearance of words for common objects previously unknown, the words themselves sometimes having nonSinitic linguistic affiliations: apparently the tokens of an originally nonSinitic substrate population which was now being incorporated, as a source of military manpower, into the expanding bureaucratic state.

Relative Development. We suggest that the weakness of early law, as also of law in later China, may be due to the lack of early commercial development outside the ruling elite in advance of the above engagement process. In the Near East, commerce was relatively early. It had an acknowledged importance, a tradition of toleration and even cooperation by the state. It was better established in the culture, and it had more leverage in the eventual system of integrated law, than was the case in China. The commercial tradition of property dispute adjudication was able to be taken up into the integrated system, and in many Near Eastern codes, among them the Twelve Tables of Rome, it forms much of the content of that system. In China, on the other hand, at the time the vertical integration occurred, commerce was rudimentary, and the state was much more powerful. At that time and subsequently, the state never lost control, and no countervailing cultural factor ever emerged, to play the role that law now plays in the European West. The Chinese state was always able to prevent, co-opt, or suppress developments tending to create an independent source of political power, wealth, or opinion. The Chinese state always sought to design things so that the government was the only sure source of wealth, or the maintenance of wealth. In this search it was, and still is, notably successful.

The value of the above suggestions is for the future to determine. Meanwhile, it is hoped that the listings which follow may prove helpful to those interested in the history of law as part of the history of society, and wishing to incorporate the Chinese case into their own calculations.

To Chinese Law Bibliography #1: General

5 Feb 2006 / Contact The Project / Exit to Chinese Law Index Page