Traditional Chinese Law

Abstract

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to 770 bce) we have only sparse evidence consisting of inscriptions on oracle bones or bronze vessels or accounts in historical documents, often written long after the events described.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.