Traditional Chinese Law

by

Geoffrey MacCormack

• LAST REVIEWED: 30 March 2015
• LAST MODIFIED: 30 March 2015
• DOI: 10.1093/obo/9780199920082-0023

Introduction

What is termed “traditional Chinese legal history” spans a period in excess of three thousand years. This period can be said to start around 1500 BCE during the Shang dynasty. It ends in 1911 with the fall of the Qing dynasty. Between the Shang and the Qing occurred many complex legal developments, of which the most important was the rise of the bureaucratic, centralized state in the 4th century BCE, leading ultimately to the establishment of the first empire (Qin) in 221 BCE. From that time there evolved a magnificent tradition of imperial legislation, primarily administrative and penal, but including in its ambit elements of what we would call civil law, that is, the law relating to marriage, inheritance, property, and contract. The quality and nature of the evidence for legal activities, whether the enactment of legislation or the making of a contract, vary enormously for each dynastic period. For the earliest times (the Shang and Western Zhou dynasties from around 1500 to 770 BCE) we have only sparse evidence consisting of inscriptions on oracle bones or bronze vessels or accounts in historical documents, often written long after the events described. On the other hand, for the Qing (1644–1911) we have voluminous records of all kinds: imperial legislation, provincial regulations, judicial decisions, and documents recording transactions between private individuals. Each period, moreover, brings up many problems in relation to the sources and the way they are to be interpreted. The understanding of law in early China at the time of the Qin and Han dynasties (221 BCE–220 CE) is even now being continually transformed through the discovery in tombs or wells of collections of laws, case reports, or transcripts of trials. Equally, at the end of the period Qing, legal history is being amplified as more and more archives from district courts or central government departments are being discovered and made available for study. The opening of the archives of district courts has particularly transformed our knowledge of the way magistrates handled disputes relating to family and property. This has led to the rise of a distinctive school of historical scholarship in which the primary focus of study has been not on the statutory law as such but on the interaction between the lives of the ordinary people and the courts. It is not possible in this article to cover every aspect of traditional legal history at all periods in China. Nor is it possible to present the whole range of sources or the scholarship dependent on them. What is attempted is merely a guide to the literature that will open a starting point for research into Chinese legal history, in relation to both penal and civil law, at its relatively well-developed stage. Although the material is not divided into dynastic periods, with a few exceptions the emphasis has been on the Tang (618–907 CE) and succeeding dynasties. Only literature in a Western language is cited.

General Overviews

There are relatively few general Western-language treatments of the traditional Chinese law, and these may cover either a number of dynasties or one specific dynasty. They are written from different points of view and hence incorporate different kinds of material. Ch’ü 1986 is an early, still-valuable work on the hierarchical organization of traditional society and the rules that regulated the behavior of individuals according to the roles they occupied in the family or the political structure. MacCormack 2013 looks at the development of the law from the perspective of the penal codes. Katz 2009 contains articles on all aspects of the traditional law and provides the best introduction to particular topics. Liu 1998 concentrates on the development of legal institutions up to the Han dynasty (206 BCE–220 CE), offering an original and somewhat controversial reconstruction. McKnight 1992 presents a detailed account of the legal institutions and punishments of the Song dynasty (960–1279 CE), concentrating on the theme of “enforcement of the law.” Farmer 1995 describes the reordering of Chinese society after the fall of the Yuan dynasty (1279–1368) and the laws introduced by the founder of the Ming dynasty (1368–1644) to achieve that end. Van der Sprenkel 2004 provides an oversight of legal institutions and sources of law in the Qing dynasty (1644–1911). Zhang 2014 is a translation into English of a work on the evolving legal tradition in China by one of the foremost modern Chinese legal historians. A particularly valuable overview of works, including those in Chinese and in Japanese, is provided in Wilkinson 2012.

• Ch’ü, T’ung-tsu. Law and Society in Traditional China. Monde d’Outre-mer, Passé et Présent. Westport, CT: Hyperion, 1986.

  While presenting a fairly static picture of Chinese society from early times to the Qing dynasty, this work is valuable for the large amount of illustrative material drawn from all periods relating to the application of the law to persons according to the particular role they occupied in society or in the family. There is much information, for example, on the sumptuary rules. Originally published in 1961 (Paris: Mouton).

• Farmer, Edward L. Zhu Yuanzhang and Early Ming Legislation: The Reordering of Chinese Society Following the Era of Mongol Rule. Sinica Leidensia 34. Leiden, The Netherlands: Brill, 1995.

  This work studies the legislation introduced by the founder of the Ming dynasty (1368–1644) to create a form of society that he supposed had characterized China in the “golden age” of the Han. It does not deal with the criminal or administrative law as such but translates and discusses three important sets of rules issued by the Ming founder.

• Katz, Stanley N., ed. The Oxford International Encyclopedia of Legal History. 5 vols. Oxford: Oxford University Press, 2009.

  These volumes contain synoptic surveys, contributed by different authors, of many matters relevant to the traditional law, whether penal, administrative, or civil. The articles, each with a useful bibliography, range from accounts of the main legal developments and institutions in each dynasty to specific treatments of matters such as the courts, legal procedure, specific offenses, and particular contracts.

• Liu, Yongping. Origins of Chinese Law: Penal and Administrative Law in Its Early Development. Hong Kong: Oxford University Press, 1998.

  Based on new archaeological discoveries (oracle bones, bronze inscriptions, and texts of laws), the book attempts a reconstruction of the factors shaping the application of punishments in the period from the Shang to the Han (1500 BCE–206 CE). It argues, somewhat controversially, that from the beginning individuals were subject to different laws and punishments based on their clan or social status.

• MacCormack, Geoffrey. Traditional Chinese Penal Law. London: Wildy, Simmonds and Hill, 2013.

  Taking as its basis the Tang code, this book describes the general principles and specific offenses of the penal law as it developed from the Tang to the Qing dynasties. It contains some supplementary material on theories about the nature of the traditional law.

• McKnight, Brian E. Law and Order in Sung China. Cambridge Studies in Chinese History, Literature, and Institutions. New York: Cambridge University Press, 1992.

  DOI: 10.1017/CBO9780511529030

  This work studies the evolution of the institutions employed by the Song dynasty (960–1279 CE) to support the social order through the enforcement of the law. It brings together a great deal of otherwise inaccessible information on the Song judicial system, those who staffed it, and the punishments imposed through it.

• van der Sprenkel, Sybille. Legal Institutions in Manchu China: A Sociological Analysis. London School of Economics Monographs on Social Anthropology 24. Oxford: Berg, 2004.

  Originally published in 1962 (London: Athlone). Although now somewhat out-of-date, this well-written work still provides a useful conspectus of the codes, courts, and legal procedures in the Qing dynasty. It also contains sections on the discipline exercised by clans and merchant guilds over their members and discusses the issue of customary law.

• Wilkinson, Endymion Porter. Chinese History: A New Manual. 2d rev. ed. Cambridge, MA: Harvard University Asia Center, 2012.

  This is the best Western-language bibliographic work on Chinese history. It contains a great deal of information on the original Chinese sources for the laws and legal institutions of all dynasties and relevant works in Japanese.

• Zhang, Jinfan. The Tradition and Modern Transition of Chinese Law. Translated by Zhang Lixin. Heidelberg, Germany: Springer, 2014.

  DOI: 10.1007/978-3-642-23266-4

  This work, the only full-length treatment of its kind in a Western language, is of value because it presents the distinctive perspective of a scholar from the People’s Republic of China (PRC) on the evolution of the principles of the traditional law.