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The Old Ways: Ancient Chinese Legal System I.

Personality of the Ancient Chinese Legal System The Ancient Chinese legal system cannot be appreciated without taking into account the general philosophy of life that underlines it. It is rooted deeply in existential interconnectedness and the Philosophies of the great teacher Confucius. Since the dawn of its history, China has believed in the existence of a natural order of things, or Law of naturethat all parts and things in the universe are connected and must adjust harmoniously with each other. This order of Nature was not made; it simply exists and is its own reason for existence. Humanity is part of it, and must conform to it. And as the elements of nature are all interconnected, whatever affects one element reaches on to affect the others as well. This philosophically based law is not to be mistaken for positive laws which are representative of attained human experience and wisdomNatural law just IS and its only task is (as corny as it sounds) to maintain a balance in the universe. Typically (in that age) a Chinese will not regard a binding rule if he feels that it is against the natural balance. The notion will not occur to him whether the act is permissible or forbidden, good or bad, just or unjust, and solely because the holder of political power has so labeled it, but will consider it independently based on its intrinsic moral quality. Conciliation and mutual adjustment are looked upon as ideal elements of justice. Confucius said: As a judge, I decide disputes, for that is my duty; but the best thing that could happen would be to eliminate the causes for litigation! The Chinese looked to Moderation, Humanity and Equity as the governing idea for social and legal relations. They do not conceive of an absolute right or wrong in the law; they tend to seek a middle groundthe golden mean, as Confucianism terms itin order to reach a compromise that will save face, an adjustment by settlement between differing contentions. In fact, a practice in ye old interior districts is that a court decision in a civil case is executed only when the losing party signifies their acceptance of it; for it would be contrary to natural law to use compulsion on a free mind. To them, nothing is so important that it cannot be compromised for human welfare or comfort or dignity. Hence the significance of saving face giving way to the universal resort to mediation or arbitration, precedent to consulting the law, and usually removing that necessity altogether. Confucius said: The Master said let there be men and Government will flourish. Another marked characteristic of the Chinese legal system is that its fundamental maxim is a government of men, not laws, a definite reverse of our belief. The Chinese philosophy of justice and government is that a good ruler makes for happy people. Therefore success in

government lies in getting proper men because if you lead the people correctly, who will dare not to be correct? Hence the institutions of a ruler are rooted in his own character and conduct. Bottom line is that Chinese jurisprudence relies on the wisdom and discretion of the ruler rather than on the text of the laws. There was short period under the Chin and Han Dynasties for a century or so, that a school of philosophers called Legists who favored the doctrine of the western rule of law dominated the legal system. But this period was brief as it was dislodged by riots during the Han dynasty that wanted the old system back. And so they got it back. Confucius said: When a prince loves what the people love and hates what the people hate, then he is what is called the parent of the people. One last characteristic to round out the personality of the Ancient Chinese legal system is that the law, though written, is written merely to reflect good customs and public opinion. The Imperial authority, though nominally supreme, is powerless to oppose national habits of thought. It is said that moral force or the rule of reason, should control, rather than strict technical rights. Compromise is the highest virtue; intolerance and obstinacy are marks of defective character. The process of law making goes that if a governor (magister/magistrate) finds and introduces a commendable usage that is acceptable to his jurisdiction, he may send account of it to the Ministry at Peking (the Capital); the minister submits it to the supreme council(advisers of the Emperor), and if approved, it is transmitted to the other provinces. If a governor accepts, it can become law there after the ascertainment of public acceptance, if it is generally accepted elsewhere; it is put into the code, but does not necessarily become strict law until it is generally familiar. This is the rule of reason applied to ancient Chinese legislation. II. The Rule of One In ancient China, since the wisdom of the ruler defines the law itself, the political system of personal discretion and one man rulefrom the emperor down to the magistrateis apparent. There was but a single official directly ruling each province or locality; and his Yamen or office was the all inclusive center of local administration. The magistrate or governor had all the authoritydispensing justice, collecting taxes, officiating as political executive as chief priest, and as moral guide and censor. In his judicial duties, he was assisted by a staff of clerks and advisers, learned in law and its procedure. The governor was in his way a master-mind, a comprehensive man of the world, a unique character not paralleled in any other legal system. He was responsible to the Emperor at Peking, for maintaining law and order and for keeping the people contented and prosperous, and was judged solely by results. Should he fail

to find and punish the guilty person in a notorious murder or robbery, he was almost certain to be kicked from office. Should a rebellion break out and be left unsuppressed, he was to be disgraced for lifeand might even be forced to suicide by the fatal silken cord sent him for the same morbid purpose; complements of the Emperor, of course. But while he lived as governor, his authority was sole and absolute, his word was law. (The idea of one-man rule was second nature to the Chinese; to them a republic was a political monstrosity) III. Laws in Writing: Books and Edicts The history of China goes back to around BC2500, but the oldest textually transmitted historical records date from about BC1200 to BC1100. During this time, text on law were few and far in between. The Book of Law ,the work of L Ku, a Legalist scholar and philosopher who lived in the State of Wei during the Warring States Period of Chinese history (475-220 BCE). It is the earliest definitive legal canon of ancient China and became the basis for all later legal works. Although the original text has since been lost, according to later records the Book of Law comprised six chapters: Theft and robbery law; Treason law; Prisoner or extent of justice law; Law of arrest; Miscellaneous law; Law of possession. Codes were in traduced in the later Dynastiesthe earliest of which was purportedly produced by Tan, the duke of Chow, brother of the founder of the Chow Dynasty. This Code, known as the Chow Li, or regulations of Chow, was sought to be expatriated by the great burning of the books perpetuated by an erratic ruler who wanted to create his rule anew. This obviously failed to destroy all traces of the Chow Li, along with many other classics, which were used again by the next generation. The Chinese earliest laws were recorded in a primitive form of script; one of the earliest styles dates from about BC2300, and was itself developed from a still earlier pictograph. The material originally used was bamboo wood; but stone was often used for giving permanent publicity to single decrees. Many other texts of law came about through the generations, such as the issuance of a Code with about 500 articles during the Tang Dynasty (AD640), another code of 2500 articles promulgated by the Tartar Emperor Timur (grandson of Kublai khan). After return to native control of the empire, Minister Yung Lo of the Ming Dynasty framed a new general code which was imbibed by the next conquering Manchu Dynasty. It was named as the Ta Tsing Lu Li, or Code of Tsing and it became law at about ad1650 and endured all the way up to the revolution of 1912. This work consists, first of a code proper called Lu or the fixed constitution, those which text never change; and secondly of the annual edicts and judicial decisions called Li which can be likened to Common Law. Every five or ten years a new edition was promulgated, with the interpretations of the Li inserted cumulatively at the code sections as little footnotesmaking the system up-to-date. From time to time, collections of leading decisions of the Supreme Court were published and studied as precedentsthese were called the Hsing An Hui Lau, equivalent to our SCRAs of today.

IV. Court Procedure and Appellate Justice Court procedure in the Ancient Chinese legal system was one of admittance and social judgment rather than that of persuasion and interrogation we see today. The crime would be brought to the Governor sitting as Magister\Magistrate and he will ask the facts of the case from all parties, including witnesses. Upon realization of defective information, he will personally ask the party giving that information if he was lying. Usually, the judge will leave the transcription of facts and issues to a court scribe or notary, but on many occasions, the judge prefers to do it himself so that he can carefully analyze the data at hand without bias of race, duty or social stature. He aims to seek the truth behind the case and will consult every possible avenue in order to do so. Upon reaching agreement of the facts and the issues, he consults the law for guidelines on how to judge the case, after which he gives his sentence. There were no lawyers (as we understand the term) in the Chinese legal system at the time. There were notaries and brokers who acted as interveners, but it was evident during that time that most Chinese were fairly well acquainted with the laws, since it is based mostly on common sense and traditional customs of the area. If the Local Magistrates justice was ever in doubt, an elaborate system of appeals was available. First the case would be brought to the provincial governor from the district governor and if still questioned, it would be brought to the capital at Peking. There sat the Supreme Court, in the Imperial Palace city. This body of men, learned in the law have the second to the last say in the resolution of the case, the final being the approval of the emperor (especially on cases of great scandal or national importance. V. Revolution and the New Legal System The Chinese are the ultimate nationalists; they have never gone out to seek by conquest any land outside of their obvious territory though they are the most numerous people in the world; conversely, they have been patriotically exclusive, and have seldom willingly let strangers into their native land. The reasons for this is that the Chinese are a contented peoplecontent with themselves, their ancestors, their history and their place in the world. A Chinese governor once said to his friend, an American explorer who showed him the world map; Your map is wrong. The world is flat and China is the center of all nations. But in 1912 came a constitutional upheaval, caused by half a century of imbibing the irritant influences of the west and the suffering under the Manchu Dynasty, resulted in unrest among the educated classes. This came to an issue in 1906 and the Emperor himself was compelled to promise immediate radical changes in Chinas constitution. Events moved rapidly for China. In 1911 the throne fell; in 1912 came a provisional constitution; and in 1923 came the new Constitution drafted on the European Plan which would change the moral and equitable legal system of China forever.