Jinfan Zhang

Rights Differentiated, Duty as a Standard

The traditional law in ancient China, characterized by being a protection for the unequal social relationships, was a prerogative law determined by the hierarchical class system. The privileges entitled by the traditional law were in conflict with the requirement for the impartiality of law which was a measure of value for the general evaluation of law, but it had limitations in times and social classes. Although the stipulations about the scope of privileges in the traditional law were limited, they were legal. The two opposite parties in this conflict were consistent under given conditions: the traditional law was inseparable from impartiality, while the law of impartiality was maintained by the the power of the privileged. For this reason, the law, on the one hand, was a regulator for the whole society, on the other hand, was a guarantee for the privileged.

The Contribution to Chinese Legal System by All Nationalities in China

The problem of legal system began to draw the attention of the world legal field since 1884 when the famous Japanese jurist, Hozumi Nobushige had put forward his proposal that the world legal system should be divided into “Indian Legal Group”, “Chinese Legal Group”, “Islamic Legal Group”, “British Legal Group” and “Roman Legal Group”. In 1923, the world legal system was further divided into 16 groups by American scholar Wigmore, which had included the Chinese legal system. The theory had not only exerted a profound influence, but also provided an important foundation for the research on the Chinese legal system at that time.

The Thoughts and Practices of Legal Reform in the Transitional Process

The modern transition of Chinese law does not start from the legal reform in the late Qing Dynasty as people have commonly assumed, nor is it the result of the endeavor of some of the ministers like Shen Jiaben who are in charge of the legal revision. In fact, it has been made possible for this great historical process to be fully accomplished only by the long time exploration and striving of several generations of social elites like Lin Zexu, Wei Yuan, Li Hongzhang, Kang Youwei and Sun Yat-sen. It is only after repeated argumentation and laborious struggles that the direction and the road of the transition have been chosen and some of the people with lofty ideals even have sacrificed their lives for it. In the process of the modern transition of Chinese law, “Yang Wu Pai” (The Westernization Group), “Wei Xin Pai” (the later Reformists) and the bourgeois democrats all have made their contributions.

Clan Orientation and the Ethical Rule of Law

Since ancient China had entered the class society along the way from family to state, the clan and lineage relationship had exerted strong influences upon the various aspects of the society and the nation. The high-level combination of patriarchal clan system and politics in especial had led to the particular system of the integration of the family and the state, and the intimates and the nobles. More specifically, the family was the miniature of the state, and the state the amplification of the family. Besides, the constitution, political structure and national activities of the state were all based on the dual principle of lineage and politics. When China entered the feudal society, the political system in which the family and state were integrated was changed, but the family was still the essential unit of the society, and the patriarchal power to manage a clan or a family was still acknowledged by the state. Patriarchs were authorized to exercise some functions of grass-roots administrative organizations, such as pressing for land taxes and maintaining public order. Due to the protection of law and the economic foundation on which it had relied, the family-oriented social structure remained stable for over 2,000 years, and it had become another important backbone of the feudal autocratic regime.

Making Convictions by Law and Making Judgments by Analogy

Making convictions by law and making judgments by analogy were totally contradictory with each other in form; however, they had actually existed in the development of Chinese ancient law and run through the thousands of years of progress of legal system, although there were different emphases for different historical stages. For this reason, the development of the legal system had been restricted by the adjustment and evolution of this contradictory relationship, which had formed the unique tradition of the Chinese law.

The Historical Value of the Modern Transition of Chinese Law and the Experience for Reference

In the long process of development, the Chinese law had been in isolation from the outside world, which was a necessary condition to maintain the intrinsic political and legal structure of China, nevertheless, at the same time, it had resulted in the establishment of a fixed routine which had been inherited and succeeded by generations. However, after the closed door was thrown open by the gunfire of the western colonial countries and under the situation that it was impossible to continue the ruling in the old traditional way any longer, it had become an unavoidable choice to begin the political system reform and the modern legal transition. Moreover, it was carried forward simultaneously in the introduction of western culture and in the conflicts and integration with the traditional culture. It was a historical movement in the wake of the social development which was not designed by any authorities, nor enforced by any political powers. On the one hand, the political change and reform during the late Qing Dynasty had provided prerequisite conditions for the modernization of Chinese legal system; on the other hand, the development from natural economy to modern commercial economy had laid the material foundations. Although there had been golden times for traditional law, by the end of Qing Dynasty it had come to a dead end, which had not only far lagged behind the bourgeois law in the west, but also become fetters to impede the development of Chinese society. Even before Opium War, there had been urges for legal reform, so even without the war, progress would surely have been made slowly in Chinese law; therefore, the war itself had in fact become its catalyst and impetus.

Historical Comparison and Timely Adjustment of the Legal System

In the continuous over 4,000 years of Chinese legal history, the internal connections and interrelations of change and development could be clearly seen. It was almost a common practice to have the advantages and disadvantages of the legal systems of preceding dynasties carefully investigated and their experience and lessons drawn at the beginning of legislation by the founding rulers of newly established dynasties, and to form new legislative ideologies and principles or to implement the necessary legal reforms. As the legislative activities of successive dynasties were mostly conducted on the basis of summarizing the past experience and focusing on the present conditions by historical comparison, the legal codes formulated would still be slightly different in contents and innovative in structure compared with the preceding ones, despite their consistency in the fundamental nature. Therefore, the legal history of ancient China could be considered as a legal history of historical comparisons, which had started from the Shang Dynasty in about 1600 B.C. Just as Confucius had said, “The Yin dynasty followed the rites of the Xia: wherein it took from or added to may be known. The Zhou dynasty followed the rites of Yin: wherein it took from or added to may be known.” So, “Li” (rites) in ancient China had a broad coverage, not merely referring to rituals and etiquettes, but also including the laws and regulations of the state. For this reason, Confucius’ inference was really insightful and practical to the reality of Chinese legal history. He had not only revealed the evolutionary relations between “Li” (rites) of Xia, Shang and Zhou dynasties, but also pointed out that the development of “Li” (rites) in the three dynasties was exactly carried on and completed by comparisons. After all, only from the perspective of comparison, can the gains and losses be grasped. Thus, in a sense, Confucius was the first person who had advocated, supported and put the principle of the comparative study of legal history into practice.

Regulating Official by Law, Defining Duties and Obligations

In the autocratic system of feudal China, the rulers must depend on a medium of power to effectively apply their powers to the administration of the country and society and the enforcement of their orders, and this medium of power was the official. Officials were a group of people who had administrated the state, so they were the personified tools to enforce the national functions and powers. Therefore, the so-called “Ren Zhi” (the ruling of man) in ancient China was in essence “Guan Zhi” (the ruling of officials). In order to give a full play to the functions of the ruling of officials, it was necessary that the officials be regulated first. Han Fei once said, “The wise emperors rule officials instead of the common people”, which was regarded by the feudal emperors as the standard for ruling, hence the theoretical pattern was formed: “Ren Zhi” (the ruling of man)—“Guan Zhi” (the ruling of officials)—“Zhi Guan” (regulating officials)—“Li Zhi” (good administration of officials)—“Zhi Min” (regulating the common people). With the fact that the bureaucratic team was the backbone of the feudal autocratic system, and that how well the officials were regulated would affect the rise and fall of the country, so the tradition of regulating officials by law took shape pretty early in order to consolidate the complicated bureaucratic networks and to guarantee their operation. The main contents of the law on regulating officials included: defining the authorities, the power and responsibilities of the officials; setting the behavioral pattern of officials and the mechanism for them to adjust and restrict themselves; implementing a series of systems concerning recommending, testing and supervising the officials so that the appointed officials could show respect to justice, be abided by law, serve the state, and be responsible to the sovereigns. With the advance of social civilization and the development of national institutions, the laws on regulating officials were continuously enriched, contributing to the situation in which there were laws for officials to follow in various aspects such as the organizational construction, the political operation, the economic and cultural planning, the settlement of civil affairs, and the judicial judgments. Thus, the feudal officials had played a crucial part in society. If the administrative laws of ancient China were regarded as an indispensable part of Chinese legal system, then the laws on regulating officials should be considered as the core of ancient administrative laws, and the two of them were not only mutually promoted but also organically integrated.

Advocating Impartiality, Emphasizing Criminal Law and Neglecting Civil Law

In China, the ancient form of the character “Fa” (law, punishment) was “灋”. According to a record in Shuo Wen Jie Zi (Origin of Chinese Characters) written by Xu Shen, “‘Fa’ (灋) means punishment, which seemed as even as the surface of water. The right part of the character is composed of ‘廌’ (an animal in Chinese legend, which can tell right from wrong) and ‘去’ (to remove), which means to remove the things that are not right”; the left part of the character was “氵”, which symbolizes “water” and means that punishments should be as even as the surface of water, or in other words, punishments should be carried out impartially. Therefore, it had not only shown the expectations that the people in the ancient times had about law, but also the value that the law itself was supposed to have, and the standard of self-discipline for the ancient judicial officials. In Western Han Dynasty, Huan Tan said, “The administration of prison is like the administration of water”, and the law should be enforced by justice and impartiality. In Chinese, the character “Fa” (law) was composed of “廌” and “去”, which had implied both justice and righteousness. So, it could be seen from the origin of the Chinese character that “law” had carried a connotation of impartiality and justice by itself.

The Law Deriving from Monarch, the Monarchy Power Overtopping Law

In Ancient China, the absolute monarchy centered on the king had been established ever since China entered into the class society and the states were founded; therefore, it was of a long standing. It was recorded in the documents of Shang (1600 B.C.–1046 B.C.) and Zhou dynasties (1046 B.C.–771 B.C.) that the words of “Yu Yi Ren” (Tian Zi: the son of Heaven or the emperor) was particularly used by the king to refer to himself and to symbolize his supreme position and absolute privilege. All the national activities, such as punitive expeditions, sacrifices, etc., were named “Wang Shi” (the king’s affairs) to suggest that the king was the state, and that the king and the state were an organic whole. In the oracle inscriptions of the Shang Dynasty on tortoise shells or animal bones, the words like “Wang Ming” (the king’s commands), “Wang Ling” (the king’s orders), and “Wang Hu” (the king’s words) could be found repeatedly, which had indicated that the national affairs were conducted according to the orders of king who not only had the supreme administrative and military power, but the supreme legislative and judicial power.