Legal culture in ancient China is a kind of social ideology that revolves around the formation, development and evolution of law, legal system and legal institution.
Chinese legal culture has undergone long historical development before its formation, therefore it is of historic significance, epochal character and representativeness. To prove this point, I will cite the Chinese legal culture in several historical periods as examples.
During the Spring-Autumn (770-476BCE) and Warring States Periods (475-221BCE), the Legalists theory was prevailing and Legalists made declarations on the origin, nature, content, form, function and value of law. In particular, Guan Zhong, one of the earliest Legalists, put forward the idea of “ruling a state under the law”. As a result, the legal culture, in the Spring-Autumn and Warring States Periods, was characterized by jurisprudence, and is deemed the most representative legal achievement in this period.
In the Han Dynasty (206BCE-CE220), Confucianism was established as the dominant school of thought, and the doctrine on guides and morality in Confucianism, namely the ethical code of “the three cardinal guides and the five constant virtues” (San Gang Wu Chang), was introduced into the law. From then on, the law began to cater to Confucianism, after which, the prominent feature in the law theory was the so called “morality given priority over penalty”(De Zhu Xing Fu) (Note: Dong Zhongshu, a Confucian in the Han Dynasty, established the comprehensive theoretical system of “morality given priority over penalty”. He believed that “morality” and “penalty” shall be placed at different position and “morality” shall be regarded as the priority, advocating “morality over penalty” as well as “more morality and less penalty”. The theory of “morality given priority over penalty”, after the analysis and support by Confucians in the Han Dynasty, gradually became the guiding ideology for the Han Dynasty in legislation and governance and imposed a far-reaching impact on future generations). This theory was a feature of the legal culture in that period, and it affected the entire feudal society after the Han Dynasty with “morality given priority over penalty” remained as the guiding ideology in the construction of the legal system.
After “morality given priority over penalty” was then established as the ideology of legal system construction in the Han Dynasty, it experienced further development in the Tang Dynasty (618-907). In that period, a famous code, the Discussions on the Laws of Tang Dynasty (Tang Lv Shu Yi) (Note: the Discussions on the Laws of Tang Dynasty, first named Discussions on the Laws, also called Discussions on the Laws Enacted in the Year of Yong Hui, also an extremely important code revised by well-known officials, such as Zhangsun Wuji, Li Ji and etc., on the basis of the Laws Enacted in the Year of Zhen Guan (Zhen GuanLv), and was also one of earliest statute law in East Asia, was published. It was the codification of criminal laws and its sparse notes in the Tang Dynasty, and was currently the most ancient and the most complete feudal code in China, with 30 volumes, 12 chapters and 500 articles. In addition, it had a significant impact on legislation in ancient Japan, North Korea, Vietnam and other countries whose codes were mostly the imitation of the Laws in the Tang Dynasty (Tang Lv). It was one of the oldest and the best-preserved codes. And in this code, the relationship between morality and law was further enriched. The code proposed that, “in administrating the country, virtue and morality were the basic, while penalty and sanction were auxiliary”. This made clear of the relationship between the two as the end and means. Moreover, thinkers and politicians in the Tang Dynasty compared this relationship to that of “Hun Xiao Yang Qiu”. “Hun” refers to dusk, “Xiao” refers to dawn, and “Yang Qiu” refers to the changes of four seasons. That is to say the everlasting relationship between morality and punishment was unchangeable and irrevocable as that between the day and night as well as the four seasons, which further indicated that thinkers and politicians in the Tang Dynasty had put so much emphasis on such relationship.
When it came to the Ming(1368 – 1644) and Qing (1644 – 1911) Dynasties, the last two dynasties in late Chinese feudal society, the Expository Jurisprudence, which then interpreted the major laws enacted by the state, rose as the prevailing legal theory and the legal culture in this period (Note: the Expository Jurisprudence was an important manifestation of legal studies in ancient China, mainly including criminal law and procedural law. In the pre-Qin period, Chinese law was mainly demonstrated in jurisprudence, which was represented by the Legalists who argued the emergence, nature, function, value and influence of law, etc. After entering the Han Dynasty, the Expository Jurisprudence became the main form of ancient law. Therefore, it is against historical practice to say that there is no law in ancient China.). The Expository Jurisprudence was a discipline to interpret the major laws enacted by the state. In the Ming Dynasty and the Qing Dynasty, in order to improve the efficiency of justice, the authority attached great attention to the interpretation of the representative codes, so they encouraged private interpretation, which is to say non-governmental interpretation of the law (Private Interpretations on the Law: During the Qin Dynasty (221-206 BC), the right to interpret law was exclusive to state officials, and private interpreting were strictly prohibited. Until the Western Han Dynasty, private interpretations on existing laws were allowed. In the Eastern Han Dynasty, in order to understand the relationship between laws of various origins and to avoid contradictions between them, and finally to achieve the unified application of laws, private law interpreting became popular. Some renowned families in the Eastern Han Dynasty, such as three generations of Guo of Yingchuan, Chen in Pei, and Wu of Henan, dedicated to studying and interpreting laws from grandfather to grandson and held important official positions with outstanding political achievements). At that time, the principal officials of the Justice Department and other officials all encouraged to interpret laws, so the laws were interpreted by both legislators and judicial staff. In the Ming Dynasty and the Qing Dynasty, apart from the judicial officials who were in charge of the interpretation of law, a group of “Legal Advisors”, assistants who helped officials with judicial work, especially criminal affairs, also interpreted law by leveraging their accumulated experience over the years [Note: Legal Advisors (Xing Ming Mu You) was a special group in the Qing Dynasty. They had no official position but certain power in the local institutions and often intervened in the judicial activities, or even manipulated judicial trials with their own legal expertise, hence imposing a profound impact on the judicial activities in the Qing Dynasty.]. Even some literate some people who did not enter officialdom interpreted law. As a result, a large group of scholars were dedicated to interpreting law in the Ming Dynasty and the Qing Dynasty, especially in the Qing Dynasty when both the official and the private interpreted the law, the Law of Qing Dynasty. Many officials and the Legal Advisors participated in the interpretation, and the legal interpretation lasted for a long time, nearly a hundred years, so different types of interpretation of the law were formed during that time. Some specifically explained a word in the text of the Law, and some explained the basis of the Law. Some were short introductions written in the form of lyrics or words formula, and others were graphic works, while all these facilitated the judiciary to study the law and apply the law. Therefore, legal culture was represented by the Expository Jurisprudence in the Ming Dynasty and the Qing Dynasty.
Law interpretation activity (Expository Jurisprudence) in the Qing Dynasty lasted for over a hundred years, the group dedicated to law interpretation was very large, including both the official, governmental officers, and the private, the Legal Advisors without any official position. Among those people, there was two reputable experts, one of whom was Wang Mingde whose major work was the Reading Legal Materials with Xi (Note: the Reading Legal Materials with Xi had eight scrolls in which eight steps of reading legal materials were put forward. The first step was to grasp the main idea, the second to summarize the outline, the third to find the source and reason behind every article, the fourth to compare all the articles critically, the fifth to sentence according to the blood relation, the sixth to explore the subject aspect of a crime, the seventh to form an internal system to comprehend the articles, and the eighth to judge according to the law and without prejudice. It was a book on ways to accurately understand the law and the shortcut to study the law.). The word Xi refers to the awl made from sharp bones to unbutton, therefore the literary meaning of the book, Reading Legal Materials with Xi is that one is able to understand the articles in law with the help of Xi, namely the notes and interpretation, as much as one can release a button with the help of the awl.
The other expert was called Shen Zhiqi, whose law interpretation was the Notes on the Law of Qing Dynasty(1). Both works by Wang and Shen were highly regarded by the public, even the emperor, because law interpretation could be used to guide judicial work. The question was whether those interpretations could be actually applied to case trials? Some local cases could not be explained by the law, thus some of the views in law interpretations were allowed, though not encouraged, to explain and resolve the case. Sometimes officials of Justice Department debated and argued intensely in the trial of doubtful cases, and they often referred to views of legal scholars to support their arguments. This indicated that the views of the legal scholars who interpreted law entered legislation field, and some were adopted directly by authority in legislation. Therefore, the Expository Jurisprudence in the Qing Dynasty was a discipline of law interpretation, making great achievement in the criminal law, litigation law, and historical law.
Representative works of criminal law in the Qing Dynasty: the Reading Legal Materials with Xi by Wang Mingde, the Notes on the Law of Qing Dynasty by Shen Zhiqi, and the Collections of Laws and Cases of Qing Dynasty by Wan Han.
Representative works of litigation law in the Qing Dynasty: the Collections of Criminal Cases by Zhu Qingqi, the Sequel to the Collections of Criminal Cases by He Xiyan, and the New addition to the Collections of Criminal Cases by Pan Wenfang and Xu Jianquan.
Representative works of historical jurisprudence in the Qing Dynasty: the Records of Laws and Cases of Qing Dynasty by Wu Tan, the Source of Laws and Cases of Qing Dynasty by Wu Kunxiu, the Research and Questions on Laws by Xue Yunsheng, and etc..
The reason why the rulers of the Qing Dynasty promoted law interpretation was to make the officials understand the specific provisions, to comprehend the legislative purposes of the laws and cases of Qing Dynasty, so as to achieve the unified and accurate application of the law. Jurisprudence in the Qing Dynasty can be said to meet such a request of the rulers, and the Expository Jurisprudence in the Qing Dynasty occupies a certain position in Chinese legal culture.
Whether the legal culture was in the Spring-Autumn and Warring States, the Han Dynasty, the Tang Dynasty, the Ming Dynasty and the Qing Dynasty, each has its own feature of the era, which is a brand imprinted by specific era on legal culture, a brand of the times.
Legal culture in ancient China has experienced a long history of development, with over 4,000 years’ texts for examination, so the accumulated materials are very rich in such a long process. For example, some of primitive inscriptions on animal bones, bronze ware, or bamboo and wood slips, are related to legal field, other than documents that recorded the achievements of the legislation of the past dynasties and some works of the ancient philosophers.
As we can see, the material of legal culture in ancient China is actually voluminous and profound, which can be said to be one of the largest collections among the most ancient civilizations in the world. In addition, legal culture in ancient China was one of the most influential or in top of the world legal cultures in a long period of time. For instance, in the Tang Dynasty, the legal culture transmitted to some neighboring countries, such as Japan, Korea and Annan, who sent scholars, called kentoushi then, to China to study law. After they studied the law of the Tang Dynasty, the Discussions on the Laws of Tang Dynasty, those scholars took the knowledge of the Chinese legal cultures back to their own countries as an important blueprint of legislation. The ancient Chinese legal culture laid impacts on neighboring countries for almost a thousand years when they learned from our laws, varying from the Discussion on the Laws of Tang Dynasty to the Laws of Ming Dynasty. Before the founding of the People’s Republic of China, China has enjoyed five thousand years of glorious history and has accumulated a wealth of experience in administrating the country during prosperous times. Thanks to that, the construction of a socialist country under the rule of law today can take advantage of this inexhaustible resource and intellectual treasure. In conclusion, traditional Chinese legal culture, namely the legal culture of ancient China, is very rich in content and profound in accumulation, and still has a significant reference value even today.
(1) the Notes on the Law of Qing Dynasty was a book written by Shen zhiqi to interpret the Law of Qing Dynasty, and was later collated and proofread by modern researchers on law interpretation. The distinct feature of this book was that it not only collected and absorbed research achievement which was regarded as authoritative opinions at that time, but also had his own unique ideas. And this made it a widely read legal masterpiece at that time and in later generations, and also an indispensable works for us to research on laws and interpretations in the Qing Dynasty).