(I): Realistic, Practical and Pragmatic
Dating back to more than 1000 BC, the time when the Western Zhou Dynasty (c.21st century-16th century BC) was established, the bases of law progressively shook off the influence of religion--trial by ordeal--and shifted to reality. In other words, it was from the Western Zhou Dynasty that China based its law on social facts and state affairs.
As a result, the legislation of ancient China was practice-oriented-ranging from governance, social affairs, crime control, society control and regulate conflicts etc.
Therefore, no fantasy and absurd content was embraced by law, meaning that there was no religious content in the laws and regulations, no matter the local Daoism generated during the Eastern Han Dynasty or Buddhism spread from India.
However, it is known that religion permeates into laws in western countries and even religious courts were set up. These are phenomena unheard of in ancient China. Once the religion interfered with the governance, administration and traditional customs, it would be frustrated politically before long. For example, during the reign of Emperor Wu Zong in the Tang Dynasty (618-907), due to the destruction of equal-field system (JuntianZhi, a historical system of land ownership and distribution in China), temples occupied many fields and expanded. Their collusion with local officials posed great threat to the governance of Emperor Wu Zong. Therefore, Emperor Wu Zong initiated the Buddhism persecution—destroying many temples and secularizing many monks. All this is resulting from the rising power of Buddhism and its interference of national politics. In addition, during the Qing Dynasty (1368-1911), Emperor Kang Xi and Emperor Qian Long both expelled the preachers of Catholicism only because these preachers threatened the Chinese tradition of worship of ancestors. Catholicism interfered with the social life of China which made itself expelled. All in all, the bases of legal tradition of ancient China were realistic, practical and pragmatic.
(II): Inheritance and Development from Generation to Generation
The law in ancient China manifested a trend of vertical inheritance and development starting from the Xia (c.21st century-16th century BC) and Shang (c. 16th century-11th century BC) Dynasties to the Qing Dynasty without interaction with foreign legal cultures. This is not by coincidence because China in ancient times was an inland country (topographic map) which was blocked by mountain in southwest and by sea, which blocked the communication of different legal culture(see picture). Besides, the law of China took the lead all over the world. Therefore, it exported laws to the neighbor countries including Japan, Korea, Annan (see picture). They all regarded Chinese law as the blueprint and made their legislation covered in the Chinese legal system. Hence, the development of China’s legislation is vertical.
As vertical as it is, it does not mean there were no progresses. On the contrary, it was inherited and developed from generation to generation which means that every dynasty made some changes to it. The law in the Tang Dynasty is different from that in the Han Dynasty (206 BC-AD 24) and the Song Dynasty (960-1279) had something different as well. Besides the Ming Dynasty (1368-1644) and the Qing Dynasty (1644-1911) were in turn different from the Song Dynasty (960-1279) all of which was a result of distinct historical features. The law of ancient China was not simply passed on from generation to generation. Instead it was changed and developed in accordance with changing society and different epoch.
(III): People are the Sole Foundations of the Country and the Country Serves the People
In ancient Chinese literature, it read: “People are the foundation of the country, and the country will be safe if the foundation is firmed”. (The Book of History: Songs of the Five Sons) (Shang Shu: Wu ZiZhi Ge), which is the conclusion of historians towards the history of rise and fall at the beginning of the Xia Dynasty. After the publication of this conclusion, it has been treated as words of warning by the following governors. Once spoken of the importance of people, Emperor Zhou Gong (see picture), dating back to the beginning of the Zhou Dynasty, the great politician, and his contributions must be mentioned. He found out that the reason of the crumble of the Shang Dynasty was the loss of people’s trust. The empire cruelly harmed common people. Therefore, Emperor Zhou Gong put the focus of administration on the people and he put up forward “respecting virtues and be cautious towards penalty” (Ming De Shen Fa) (The book of history: Announcement to the Prince of Kang) (Shang Shu: Kang Gao) which means “the advocate of virtues and cautious punishment without indiscriminate slaughter of innocent people”. This idea was inherited by pre-Qin Confucianism from which the orthodox of legal culture of "morality given priority over penalty"(De Zhu Xing Fu) from the Western Han Dynasty was evolved. As a result of the strategy of protection and appreciation of people, the Zhou Dynasty witnessed a boom and stable society which last for hundreds for centuries.
The appreciation and protection of people manifested in legal field was that the law valued much of the livelihood of people which is the foundation of people’s production and life. Then how does the law safeguard the livelihood of people? It regulates the land ownership which was the most important to people since China was primarily an agricultural society and the land was the means of maintaining life. Every dynasty regulated its land by setting up land laws especially the “equal-field system”(see picture) of the Tang Dynasty which distributed land to the farmers. Once they had lands, they would survive and live a stable life which in turn would make the whole country stronger.
In order to protect the people, there were some special regulations which means that the power of execution was centralized from the Southern and Northern Dynasties (420-581). The local high-ranking officials processed no power of execution in order to show respect of human beings. In the Tang Dynasty, there was a review system before the execution including three times review(San Fu Zou )and five times review(Wu Fu Zou) (three times review was the procedure of execution of the Tang Dynasty meaning reports three times to the Emperor before the execution to ask for the permission with much caution. After the execution of Zhang Yungu and Lu Shangzu, Emperor Taizong of the Tang Dynasty regretted seriously and then ordered five times report of the capital city and three times report of other provinces) (see picture), so after the reports and reviews, the Emperor would decide whether he or she should be executed. During the Emperor Qian Long of the Qing Dynasty, he used to abolish the reports and reviews system which does not mean that he ignored the reviews of execution, on the contrary, every time he reviewed the reports (Zhao Ce) (recording the facts and confession etc.) and discussed with the officials, when there was any possibility of not execution he would let it go. So there were more than ten times reviews, not only three times or five times, paying much attention to the death penalty. Whether the death penalty is proper or not is related not only to the criminals and his families but also influence the authority of justice and the stability of the society. Therefore, Emperor Kang Xi once said that there was one thing in his life that he would never do is to decide on the execution because he needed to decide and mark on the death row which was the regulation of execution and showed the appreciation of people’s life. Towards the disadvantaged groups such as the widows， the orphans and the disabled etc., the punishment would be mitigated. For example, the women or the pregnant, they would be executed after 100 days. Some people who were more than 90 years old or under 17 years old would not be punished no matter what crime they had committed all of which showed the combination of appreciation of human life and humanitarianism of criminal law. Most of the dynasties which valued much of the people witnessed a great boom while the dynasties which ignored the livelihood of people witnessed crumbles. Therefore, the concept of “people are the foundation of the country” is very precious and practical legal tradition.
(IV): Educating People with Morals and Complementation of Morals and Law
Starting from the Zhou Dynasty, morals were upheld to respect and trust people and it initiated the respect and advocate of morals, which was the contribution of Emperor Zhou Gong (see picture)—to educate people with morals. This was developed into "morality given priority over penalty"(De Zhu Xing Fu) (Dong Zhongshu image) of the Han Dynasty and “moral and ritual, the foundation for teaching and politics; penalty, the use of teaching and politics” (De Li Wei Ben, Xing Fa Wei Yong) of the Tang Dynasty. In conclusion, ancient China put much value on morals and virtues in the practices of politics and law and educated people by morals (Emperor Tai Zong of the Tang Dynasty followed Wei Zheng’s suggestion to use morals to teach people; picture of honest and upright official Lu Jiashu—educate his son with morals), which means the promotion of morals and virtues in society by which to educate people to be kind and to keep them away from the evil and be near to the good. So the people would be purified by morals and to reduce crimes.
However, moral alone is far from being sufficient in the governance of a country. There must be laws because morals are not mandatory while the laws are backed by the country to tackle with crimes, which is the complementation of the two-use law to punish crimes and use morals to educate people and with the combination of the two to govern the whole country.
It was also influenced by the ideas of valuing much of the morals-morality guiding and punishment supplementing. Until the Tang Dynasty, morals and rituals were treated as the foundations for teaching and politics; penalty was treated as the use of teaching and politics. They were closely related to be used to govern the country to make it stable. Therefore, the philosophers of the Tang Dynasty compared the relationship of morals and laws to natural phenomena-day and night and four seasons which are eternal. Morality guiding and punishment supplementing, as well as educating people with morals are outstanding legal traditions of ancient China which lies the peculiarity and superiority of Chinese legal system. In our times, President Xi Jinping also emphasized the importance of rule of law and rule of virtues which he mentioned many times. Therefore, it shows that education with virtues and rule of law are important legal traditions of ancient China.
(V): Rule of Law
When the history wheeled to the Spring and Autumn Period (770-476BC), iron-made tools were used to produce which increased the productivity and made the reclamation of private land possible. Besides the reclaimed land belonged to the individuals which destroyed the land system of the beginning of the Zhou Dynasty-“all the land belongs to the Emperor” [The Book of Songs. Minor Odes of the Kingdom. Gu Feng Zhi Shi. Northern mountain](Shi Jing•Xiao Ya•Gu Feng Zhi Shi•Bei Shan). It changed the relations of production greatly. These changes also influenced the superstructures-the superiority of the Emperor of Zhou Dynasty decayed. Simultaneously, the power of every state was expanding. In addition, there were annexing wars among the state. Under such a condition, the original ritual music was collapsed and lost the power of social control(Li Beng Yue Huai), which became useless in the society. In such a chaotic era, what exactly could be used to rule the country, the question of which many politicians and philosophers pondered about.
Then the representative of Confucianism Confucian (see picture) put it “with the self-control and the revival of rituals, the world would go to benevolence” [Analects of Confucius Yan Yuan (Lun Yu Yan Yuan): “Yan Yuan asked about benevolence. Confucian replied that with the self-control and the revival of rituals we can reach to benevolence. Once we do that, the world would go to benevolence.”] intending to save the world. However, in such a contending era among powers, there was no possibility for the self-control and revival of rituals during which time the legalism became thriving.
The legalism advocated the rule of law. The emperors used laws as a tool to govern the country and people and all the affairs were tackled with by law.
The early representative of legalism Guan Zhong put up forward the concept of rule of law about 7 century BC. He thought that by rule of law the power would be centralized easily which is to say “there must be a uniform law and politics”. It made the orders and policies uniform which could be reached by rule of law so as to control the crimes of the society by centralizing powers and unifying the policies.
The legalists took power in some of the states and promoted the legalism. In these states, legalism was used to guide by law, to consolidate the improvements of economic and political reforms, to stabilize the society and to combat opposition groups who was blocking the reform.
Besides, legalism advocated all the people are bonded by law equally no matter the lords or literati or the common people, which was justified according to law-no matter how close or noble they are, they are all treated equally by law.
At the same time the Legalists advocated to change the heritage system of highly ranked officials of early Zhou Dynasty, which was the "Shi Qing system." [Shi Qing and Shi Lu (Shi Qing Shi LuZhi) are the names of the highly-ranked officials of Western Zhou Dynasty. Shiqing is the noble under the prince or the Emperors of the states. Shi Lu means the position of the officials is passed from generation to generation. The sons would replace the fathers and owns all the lands and taxes.]
In order to destroy such a system and elect people who are capable, such as “twenty military titles” system (Er Shi Deng Jun Gong Jue Wei)[Twenty military titles system of the Qin Dynasty (221 BC-206 BC) is to reward military work, to encourage combating of the enemies. Twenty military titles system of the Qin Dynasty is divided into twenty ranks, they respectively are: the primary is Gong Shi, the second is Shang Zao, the third is Zan Niao, the fourth is Bu Geng, the fifth is Da Fu, the sixth is Guan Da Fu, the seventh is Gong Da Fu, the eighth is Gong Sheng, the ninth is Wu Da Fu, the tenth is Zuo Shu Zhang, the eleventh is You Shu Zhang, the twelfth is Zuo Geng, the thirteenth is Zhong Geng, the fourteenth is You Geng, the fifteenth is Shao Shang Zao, the sixteenth is Da Shang Zao (Da Liang Zao), the seventeenth is Si Che Shu Zhang, the eighteenth is Da Shu Zhang, the nineteenth is Guan Nei Hou and twentieth is Che Hou.
The Legalists also implemented the "clear reward and penalty system" (Shang Xin Bi Fa) [meritorious person must be rewarded; guilty people shall be fined. Reward and punishment are clear. [Han Feizi. Wai Chu Shuo You Shang: Hu Zi said that the faith must be embedded to the clear reward and punishment.]. That is, the reward and the punishment must be trust worthy, which is a principle of the rule of law, through the reward penalty to promote the Legalists’ "Agriculture and War” (“Geng Zhan policy") policy. The Agriculture and War policy is to pay attention to agriculture; war, that is, to merger among states. So the Legalists through a series of ideas, made Legalism popular in the country where he took power. Besides the reason why Emperor Qin would unify six states was the foundation laid through Shang Yang’s reform (Shang Yang Bian Fa).
To use law to rule the country has a far-reaching impact, which is the instrumentalism of law-to use law as a tool to govern. Wei Zheng of the Tang Dynasty compared it to the whip held by the riders. The riders could be seen as the law by which the governor rule the country. Then who would hold the tool? If the emperors hold it, then it is to use the law to rule which has many limitations.
Since the law is a tool of the emperors, then how to use it properly is influenced by the Emperors, which is to say that if the holders are enlightened, then the law could be used wisely; however, if the holders are fatuous, then the law would probably lose its function of ruling. [just as Han Fei (see picture) said: “if the users of law are intelligent and wise, then the country would be prosperous; if the users of law are imbecile, then the country would be poor.” (Han FeiZi.You Du) So the instrumentalism of law has limits itself which lied on the control of the tool by the rulers while the superior ruler was not bounded by the tool. So there is a distinction between to use law as a tool and rule of law. The latter is the authoritarianism of law and everyone should be bound by the law and in front of which there is no absolute power. Today we promote the Chinese characteristic rule of law which is different from the instrumentalism of law.
(VI): The Appreciation of Feudal Orders of Importance and Ethical Rules
Ancient China advocated the five orders of relationship (Wu Lun): the monarch， paternity, connubiality, brotherhood and friendship, which are eternal so they are called the feudal orders--Chang. Chang was rooted in Chinese culture. There are stable rights and obligations among them and the law served greatly to maintain this order. Disobedience, for example, which is against the paternity relationship, is a felony. As a result, it formed gradually a legal tradition--ethical rules such as patriarchal relationship which is affirmed and protected by the law. This is ethical rules and ethical legal tradition, which is inseparable with China's specific condition. In such a society of ancient China which paid much attention to the law and the kinship, the paternity, brotherhood and connubiality were treated the most important social relationship which were regulated to much extent by the law. Therefore, it formed the tradition of ethical law which is also one of the features of Chinese legal system based on the status quo.
In such a society of ancient China which paid much attention to the law and the kinship, the paternity, brotherhood and connubiality were treated the most important social relationship which were regulated to much extent by the law. Therefore, it formed the tradition of ethical law which is also one of the features of Chinese legal system based on the status quo.
(VII): Honesty and Clear Distinction between Reward and Penalty
Honesty is the value orientation and vitality of law. The philosophers in ancient China had made statements about honesty: Confucian said that all people would die one day while only the honesty would survive which regarded honesty way more important than life. Mencius also regarded honesty as a means to communicate between human beings and nature. It is the same that if there is no honesty in law, the value of the law would be lost.
In order to make people believe in law, Shang Yang used to stand a piece of wood at the northern gate and said that anyone who could move it to the southern gate would be rewarded a thousand pence. The people whispered and would not believe. Then Shang Yang raised the reward to two thousand pence. Then someone stood out and moved the wood to the southern gate and was awarded two thousand pence. Then the authority of law was set up. In Song Dynasty, Wang Anshi, a reformist, used to write a poem to complement on this. In the poem he wrote: if you would like to asked the people to do something, the key lied on honesty and integrity.
Since ancient times, honesty is the key to drive people and honest words weigh more than gold. He also complemented Shang Yang and asked people not to blame him because he would execute policies properly. Honesty in law is to reward people and punish people equally and distinctly. It is similar to the market economy and market practice rules, which were promulgated in the law of the Tang Dynasty. These rules were used to punish dishonest merchants who lied on the quality or quantity of the products for instance. Honesty was the key in ancient market practice rules which is the same in nowadays’ market economy. Besides there was a consensus that the honest people are a man of noble character while dishonest people are villain. We can learn from this practice. If we would develop market economy, we cannot make it prosperous without honesty and a clear distinction between reward and punishment. Therefore, these legal traditions are of great importance to theses days.