Civil Law and Jurisprudence in Imperial China

Abstract

In terms of jurisdiction and punishment, the border between civil and criminal laws in imperial China is not clear cut. The same officials can handle both civil and criminal cases, and lawfully impose the same punishment, such as the death penalty, on unfilial sons and traitors alike. In terms of the sphere of interests, however, the officials know very well that some violations are more concerned with private interests than public interests. For example, they will settle loan disputes in accordance with the original private contract between the money lenders and borrowers, unless the interest rate is so exorbitant that it necessitates government intervention. Consequently, the imperial Chinese and modern Western civil laws are roughly common in their coverage of marriage, divorce, succession, disinheritance, property matters, and so on. And, like the Western laws, the Chinese laws have experienced historical changes, many of the most important of which occurred during the Song dynasty (960–1279) or the “Tang-Song transformation,” so called to highlight the tremendous progress of China from the medieval to the early modern stages. Against the principle of filial piety, both sons and daughters are now allowed to sue their parents without fear of the death penalty if their accusations are true. Against the principle of communal family, both sons and daughters can possess privately earned properties not to be shared by their parents and siblings. Against the principle of patrilineal succession, unmarried daughters have their inheritance rights increased at the expense of the sons, reaching the ratio of two shares for a son and one share for a daughter. Against the principle of different rights according to different status, a formal concubine can inherit the spousal patrimony and establish an heir when the wife is absent. These changes reflect that the legislative principles, though still far from enshrining equality before the law, are paying increasing attention to the balance of duties and rights with decreasing regard to family relation, gender, or status. As to the judicial practices, they are nearing the rule of law and becoming more predictable instead of inconsistent. These are the less-known or even misunderstood aspects of the civil law in imperial China.