chinese legal history Flashcards
1
Q
major periods of Chinese legal history
A
- the emerging and early period: Xia, Shang, Zhou Dynasties (21st century B.C. to 770 B.C.)
- the ancient period: from Spring and Autumn period to the Opium War (770 B.C. to 1840)
- the modern period: from the Opium War to the establishment of PRC (1840 - 1949)
- the contemporary period: PRC (1949 - today)
2
Q
Xia dynasty (2070 B.C.-1600 B.C.)
A
- Believed to be the first state and first dynasty in China
- Established by tribes in the region of Henan province
- Evolutionary stage between the late Neolithic cultures and typical Chinese urban civilization of the Shang dynasty
- Rise of the theocracy and punishment by celestial mandate
- Code of Yu: death penalty as main punishment, corporal punishments
3
Q
Legend of Gaoyao
A
- First judge in China, originator of Chinese justice
- Made the first code of criminal justice
- Built the prison, worshiped as god of prison
- Adjudication with the legendary beast Xiezhi – symbol of justice
- Origin of the Chinese character for law
4
Q
Shang dynasty (1600 B.C.– 1100 B.C.)
A
- Prevalence of the theocracy and punishment by celestial mandate
- Code of Tang and its revisions; criminal statute for officials etc.
- Five punishments:
1. tattooing, cut the nose, cut the limb/feet, emasculation, death penalty; fine of silk, etc.
5
Q
Western Zhou dynasty (1045 BC - 771 BC)
A
- Rites of Zhou, with two basic principles kinship and respect
- formation of a patriarchal clan system and a patriarchal legal system (succession by the first-born son of the legitimate wife )
- nobles restrained by rituals, the majority of commoners controlled by punishments
- emphasis on virtue and prudent punishment
- Code of Lü: Nine punishments (five punishments + redemption, exile, whipping, caning);
- Technics of trial: Five listenings (words, face, breath, reaction, eyes)
6
Q
Eastern Zhou dynasty
A
Spring and Autumn Period (771 B.C.-475 B.C.)
& Warring States Period (475 B.C.-221 B.C.)
- Change in the society and breakdown of rites (li)
- Different schools of thought flourishing: Confucianism, Legalism, Taoism
- Enactment and publication of written law on bronze or bamboo slips: Casting tripod with inscription of law at the end of Spring and Autumn period (536 B.C., 513 B.C.); critiques
7
Q
Written law movement during the Warring States period
A
- Legal reforms in vassal states and enactment of statutory law
- State Wei: Legalist Li Kui compilation of Classic of Law around 407 B.C. — first relatively systematic and complete code of ancient China
- Classic of Law: six chapters (theft, treason, judiciary, arrest, miscellaneous, general principles)
- Influence of Li Kui’s work on Shang Yang’s reforms in state Qin
8
Q
Shang Yang’s reforms in state Qin
A
- First reform in 356 B.C.: Qin Law based on the Classic of Law
- Second reform in 350 B.C.: private ownership of land; set up counties as administrative unit, to centralize the power, etc.
- Making state Qin the top of seven vassal powers
9
Q
Qin dynasty (221 BC — 206 BC)
A
- in 221 BC the first empire in Chinese history was established; Ying Zheng as the first emperor of China enjoying dignity and supreme power → the first centralised autocratic dynasty in ancient China
- Combined judicial and administrative powers
- Brutal and harsh capital and corporal punishments; joint liability
- Initial stage of imperial supervision system
10
Q
legalism
A
= enforce the rule of law, emphasising the principle of punishment and the importance of law over rituals
11
Q
confucianism
A
to maintain hierarchy, patriarchial order and ethics
12
Q
taoism
A
Taoism, as it pertains to law, emphasizes natural harmony, minimal governance, and the idea that the best laws align with the effortless flow of the Dao, avoiding excessive control or coercion.
13
Q
main forms of law
A
. lü: formally enacted by imperial court on a specialised matter
- ling: imperial decree/edict
14
Q
Han dynasty (206 BC — 220)
A
- Taoism combining Legalism: rule by inaction, virtue and law
- Turn to the exclusive respect for Confucianismus as guiding philosophy of ruling
- Confucianisation of law: Dong Zhongshu‘s work on decisions on litigation, respect for the old and pity for the young
- Legal reforms: abolishment of brutal corporal punishment and joint liability; adoption of the principle of concealing guilt among relatives; execution of death penalty in autumn and winter, etc.
15
Q
Sui dynasty (581-618)
A
Code of Sui:
- establishment of new Five punishments
- Eight Deliberations
- Ten Evil Crimes
Judicial system: direct appeal to the capital, beating the Dengwen drum to express injustice, etc
16
Q
Tang dynasty (618-907)
A
- advocating benevolence and virtue; leniency and simplicity in punishment; stablility and uniformity in law
- Tang Code: earliest and most complete code survived in Chinese history
- Model of legislation and codification for later dynasties
- Influence on neighbour countries such as Japan and Korea
- Administrative regulations: Six Canons of the Tang
17
Q
Song dynasty (960-1279)
A
- Neo-Confucianism, school of Song, advocating social order, law and pragmatism, to develop commercial economy
- Code of Song (963): based on Tang code, with same structures; lü and decrees compiled together; first engraved and printed code in history
- development: precedents/typical cases transformed into li, compiled into the code under Southern Song, as supplement to lü and edicts
- Progress in forenstic technics: Washing away the injustice (1247)
- Famous judge Bao (999-1062)
18
Q
Yuan dynasty (1271-1368)
A
- first national unified feudal dynasty established by ethnic minorities the Mongols
- Following the codes made by the Chinese/Han people (Code of Tang, Code of Song)
- new Yuan codes and laws
- maintaining inequal status between different ethnic groups
19
Q
Ming dynasty (1368-1644)
A
- apply punishment first and then indoctrination
- strict law and heavy punishment
- based on Tang and Yuan code: Code of Ming
- Compilation and revision of precedents of li.
- Establishment of an inspection system in central and local level to supervise the function of administration and justice
- A privileged surveillance and intelligence agency headed by eunuchs
20
Q
Qing dynasty (1644-1911)
A
- The last feudal dynasty in Chinese history, ruled by the Manchus
- Following the legal system of Chinese Han people
- Code of Great Qing with annotations and precedents
- bottom up jurisdiction; review system according to the severity of punishment
- Growing power of masters of law, employed by local magistrates
- penalties: shackling, wearing cangue, tattooing, lingchi
21
Q
Late Qing (1840 - 1911)
A
- Encounter with the West; English translation of Qing Code
- defeats since the Opium war: unequal treaties (cede certain territory, compensation, loss of extraterritoriality - critiques of Chinese law and justice, etc.)
- Movements to improve military force and develop industry
- Appeal for radical political reform after the defeat in Sino-Japanese war (1894-1895)
22
Q
Late Qing legal reform (1903-1911)
A
- Prepare for constitutional monarchy
- Principles: maintain the Qing rule; revise and reform the legal system without abandoning its substance and essence; strengthen control over society
- Law Revision Commission 1904): revise the Qing code; translate foreign laws; draft new laws (criminal, civil, commercial, etc.) with assistance of Japanese legal experts
- Changes in judicial system; formation of legal professionals
- Debates over Confucian rituals/li and western law/fa
23
Q
characteristics of traditional Chinese legal system
A
- Continuity: compilation based on the laws of previous dynasties, making modificationss in the light of reality and needs of current rule
- Diverse forms of law: lü/law, imperial decrees, administrative statutes, li/precedents, local customs, familial rules, popular believes
- Structured, comprehensive, evolving, mature legal system
- Confucianisation of law: emphasizing rituals/rites (social status, family and patriarchal power)
- ‘Penal’ law: articulating different detailed situations of violation and corresponding punishments; no division between penal and civil codes; different sections of laws combined in one code
- Legal practice: through hierarchical administrative system from local to central level; judicial power not separated from executive power, magistrate as judge
