Thursday, November 17, 2011


The word that signifies "law" in present-day China is (), literally meaning "law", "legal system", "the way things are done", "penalty", "punishing", "standard" and "model". The term formerly used was  (xíng), which means "penalty". Unlike other ancient cultures that ascribed their laws to a divine source, the Chinese law has no association with religion.

 The earliest Chinese codex of law known to us is The Book of Punishments (xíng)(shū), written in the 6th century BCE. In 536 BCE Zi Chan  ()(chǎn), the ruler of the small State of Zheng (zhèng), ordered that it be written down on a series of tripod bronze vessels. Following this "book", laws appeared in other states in 513 BCE, 501 BCE and later. Though these texts have been lost, it is possible to learn about them from a letter addressed to Zi Chan, in which a respected person from a neighboring state expressed his objection to them. 

During the rule of Emperor Qin Shi Huang Di   (qín)(shǐ)(huáng)()259-210)  BCE), new laws were legislated and inscribed on tripod vessels placed in the ancestor temples and disseminated to all the government ministries. Thus, every citizen was familiar with the laws of the emperor.

The Confucians considered that there was no need for laws, and that it would be better to rely on li (), the rules of behavior believed to have been created by the ancient sages. In their view, the disorder that was prevalent during their period derived from the fact that people did not understand li and did not live according to it. Li moulds people and makes them acceptable in society. It can prevent bad behavior from occurring; whereas law punishes after the offense has already been committed.

According to the Confucians, a government based on morals will gain the hearts of the people, whereas rule based on force is likely to achieve outward obedience rather than internalized moral values. Li is a means of persuasion, whereas laws are compulsory, and, therefore, an expression of a despotic government. Li derives its universal validation from the ancient sages and from its harmonization with human nature and cosmic order. The Confucians believed that law, as a product of people who are desirous of acquiring political power, has no moral validity.

As opposed to the Confucian approach, the Legalists introduced laws that elaborated upon the offenses and their suitable matching punishments. The Legalists, who supported rule by law, believed that human nature is selfish, which is why severe punishments are required. The law seen in this way relates to selfish people rather than to good deeds. The government, as a strong authority, must therefore rescind all privileges. Accordingly, laws must be published and implemented without discrimination, no matter what the social class or proximity to government officials of the person who has broken the law. 

Law, according to the Legalists, is the basis for a stable government. Since it is known to everybody, it can serve as a tool for measuring behavior. Li, however, cannot replace law, because the rules of li are subject to subjective interpretation. 

The Han (hàn)dynasty (202 BCE-220 CE) officially renounced the principles of Legalism, which had been adopted by Emperor Qin Shi Huang Di, and instead established a long period of empire that would implement rule in the Confucian spirit. This found its expression especially in the legal system. For example, a father who killed his son because the latter did not obey him, would not be punished and might not even have been investigated. In contrast, a son who killed his father would be sentenced to death as a murderer, even if he had not intended to kill, and even if a stranger, who might have killed the father in the same circumstances, would not have been punished at all.

The first Chinese codex of law preserved intact is that of Tang Lu Shu Yi  (táng)()(shū)() (literally: the Tang law and its interpretation), which was compiled in 653 CE. This codex served as a basis for the legal systems of the dynasties to come and was also adopted by Korea and Japan.

In the criminal law, for every offense listed in the penal code there was a specific punishment. The most customary punishment - beating with a bamboo rod, from one to one hundred strokes, was quite harsh. The punishment for a severe offense was execution by strangling or decapitation. An even more severe punishment was that of slow death by torture. Death by strangling was considered a sign of the emperor's mercy. Another kind of punishment was that of temporary or permanent exile to a distant place.

The magistrate would both investigate and pronounce the verdict. His verdict would then be subject to repeated routine examination by administrators higher up in the bureaucratic hierarchy, and by censors. A death sentence had to go through all the steps of the hierarchy and even to reach the emperor himself. The condemned person could address the emperor directly with an appeal, a process that somewhat mitigated the harsh legal system. Nonetheless, innocent people were often punished.

In traditional China, due to the supreme importance ascribed to social order, human rights were considered less important. However, people did have freedom of belief and religion. As opposed to the Western approach in the same period, the Chinese would not punish people for their beliefs. Moreover, anyone had the right to declare his legal claim. For this purpose, outside the court of justice, was hung "the complaint drum" (yuàn)(), which anyone could bang and declare his claim. In each court of law there was a mural depicting a terrible animal called "covetousness", in order to remind the judge that greed is an evil animal and that he who falls prey to it will be punished.

An important principle in traditional China was that of meting out punishment only after the individual had admitted to committing the crime; but such admissions would frequently be achieved by torture.  



He who does not know is not to blame 

In Hebrew they also say:

אין עונשין אלא אם כן מזהירים (סנהדרין נו,  ב).

Literally: No punishment is enforced unless a warning had been issued (Sanhedrin, 56, 2).

Troubles come to the world not [because of] lack of laws, but [because of] disobeying them
Just as] grass follows the wind, people follow the king's law. ]Literally:
Just as grass follows the wind, the citizens abide by the law of the state.
Literally: Without law (without hair[1]) (pun) [and] without heaven.
This idiom is used to describe a person who mocks the law and the supreme authority (God).
It is difficult to escape the net of the law
A tooth for a tooth
To take revenge on he who has done harm in the same way that he had done the harm.
The same phrase is found in the Bible:
עין תחת עין, שן תחת שן, יד תחת יד, רגל תחת רגל (שמות כא 24).
Eye for an eye, tooth for a tooth, hand for a hand, foot for a foot (Exodus 21, 24).
Complete darkness
A complete absence of justice.

[1]Buddhist monks have their head shaven. Pun: the word (), which signifies "law", and the word (), which signifies "hair", are homonyms.  


No comments:

Post a Comment