Vol. 16 No.2 (February 2006), pp.149-152

 

LAW CODES IN DYNASTIC CHINA: A SYNOPSIS OF CHINESE LEGAL HISTORY IN THE THIRTY CENTURIES FROM ZHOU TO QING, by John W. Head and Yanping Wang. Durham, North Carolina: Carolina Academic Press, 2005. 280pp. Cloth. $45.00. ISBN: 1-59460-039-2

 

Reviewed by David Gurnham, School of Law, University of Manchester, U.K. Email: david.gurnham [at] manchester.ac.uk

 

When Bertrand Russell set out to compile his HISTORY OF WESTERN PHILOSOPHY, he sought to explain human experience as the gradual and logical evolution of thought until its ‘modern’ analytic form. John Head’s and Yanping Wang’s review of Chinese legal history seems to adopt a similar theme, that of trying to show that a period vast in span and tumultuous in its events, can be viewed as a fairly ordered unfolding. Over the course of less than 250 pages, the authors attempt to present thirty centuries of political philosophy and legal history as a coherent narrative. The authors are the first to admit that such a wide sweep of history cannot be accommodated without some implications for depth, although the writing is engaging from the start. The first eight centuries of the story – the Zhou (Chou) Dynasty in which the major competing schools of thought of Confucianism and Legalism are explained – is dealt with between pages 23 and 59. The authors cite the Zhou Dynasty as the first significant period for studying Chinese legal history, since it was the kings of the Western Zhou (1100 BCE to 771 BCE) that developed the ideas on which Confucius modeled his own philosophy around 500BCE and thereby exerted his immense influence upon the remainder of Chinese intellectual history. Head’s and Wang’s text flows with such pace that dynasties rise and fall at a dizzying rate. However, the authors constantly remind the reader that, despite several changes of political control, the influence of foreign ideas and military invasion, and sustained periods of division and inter-state war as well as imperial unification, law in Dynastic China remained very much a force of conservatism and continuity. Of course, unlike Western nation states, imperial China (which existed until 1911) never evolved into a modern industrialised country, and the authors make various references to the possibility that it was the very resilience of Chinese political and legal doctrine in the face of change that ensured its demise as a great power towards the end of the last (Qing) dynasty.

 

It is the fact of Imperial China’s conservatism that makes Head’s and Wang’s book possible at all, as it allows the text to be dominated by discussion of just two foundational schools of thought (Confucianism and Legalism). These are introduced in the first two chapters, leaving the rest of the book to develop the chronology of Chinese legal history. For example, the legal code compiled in 653 CE and revised in 737 in the great Tang Dynasty, forms the basis of codified law for the next 1000 years. It survived even the devastatingly successful invasion by the Mongols in the 13th Century and their Yuan [*150] Dynasty, who were eventually forced to abandon their hopes of replacing it with distinctly Mongol forms of law. Perhaps the period of pre-20th Century Chinese military History best known to western readers, it is generally regarded as having no great or lasting impact on Chinese law. Head and Wang do not really challenge this conception, although they do include a brief quotation from another commentator who complains that the Mongol influence has been underestimated.

 

The theme of ‘codification’ provides the book’s focus and allows the details of Chinese legal philosophy and history to be ordered in a way that is meaningful for lawyers. Western readers will perceive a fairly familiar plot within in the unfolding narrative of repeated violent rebellion followed by codification of legal norms. The text is thus tailored towards narrating the relationship between the Chinese state and written law, and between Chinese philosophical understandings of man’s proper place within the family and the state. The book devotes a certain amount of time to explaining the fluctuating significance of cosmology in Chinese legal philosophy, both in terms of establishing the Heavenly legitimacy of emperors and also beliefs regarding the significance of certain punishments. For example, we are informed that the Qing code of 1646 CE stipulated two forms of execution: beheading and strangulation. Although strangulation was a slower and more painful death, beheading was regarded as the more severe punishment, since it was believed that the spirits could not continue to inhabit a divided body.

 

The authors give the impression that the only significant schools of thought for the development of Chinese law codes were the arguably incompatible Confucianism and Legalism, which nevertheless seem to find a way of complementing each other and forming the broad basis for a legal order of astonishing longevity from the time of the Han dynasty (206 BCE – 220 CE). These schools of thought are very much brought to life in the text. We learn something of the life of Confucius himself: convinced of the transformative power of education and rule by virtuous example rather than punishment, he was forced unwillingly into the role of teacher by his lifelong failure to win any political position from which he could put his ideas into practice. The history of Dynastic China is narrated by Head and Wang always with an eye on which of the two main schools of thought seemed to be the more influential. In the section on the first successful unification of the whole of China (under the Qin dynasty 221 – 206 BCE, following the collapse of Zhou), the authors gleefully recount how Qin Shi Huangdi (the first ruler of China to declare himself Emperor) destroyed the ancient classical texts, including Confucianist writing that conflicted with the Legalistic perspective. This act of anti-intellectual vandalism (which the authors resist comparing to the Babelplatz book burning in Hitler’s Berlin) is made all the more poignant by the Qin’s dramatic collapse just 14 years after its triumphant success, to be replaced with the more Confucius-friendly Han Dynasty. Although Head and Wang acknowledge the popular influence of Daoism and Buddhism, such ideas fit rather [*151] awkwardly into the otherwise binary presentation of intellectual competition between Legalism and Confucianism. Although we learn that both schools of thought enjoyed popularity amongst Chinese people in the period of division and war between the fall of the Han Dynasty and the rise of the Tang Dynasty (220 – 617 CE), these do not seem to have detracted to any great extent from the codification of Legalist and Confucian doctrines in law. As a foreign import, Buddhism was highly significant, but suffered the problem that it had to be translated in the context of deeply entrenched cultural norms inherited from Confucianism (p.108).

 

The book is at its most impressive in its accounts of the primary and secondary literature. The primary sources on codified law in early Dynastic China are sparse indeed, despite the high status accorded to the written word. We learn, for instance, that the earliest manifestation of Legalist codes of punishment were inscribed on bronze cauldrons and pots handed down and preserved by the Eastern Zhou kings of the 6th Century BCE as symbols of legitimate power. However the pots themselves are long since lost, and the authors inform us that we only know of these sources from later examples and from secondary sources (p.51). Written law codes from the earlier ‘Western’ Zhou dynasty do not exist because of the Western Zhou kings’ adherence to the concept of li: the system approved and promulgated by Confucius which shunned written laws to a great extent in favour of rule by the virtue and good example. The actual texts of the great legal codes of other dynasties have also either been lost or survive in fragments. The code issued in the Han Dynasty (206 BCE – 220 CE) in which Confucianism first gained formal acceptance in law alongside a weakened Legalism inherited from the brutal Qin Shi Huangdi, for example, is almost entirely lost. Head and Wang dutifully inform us that their commentary is therefore based on the work of the Western author, Hulsewsé, who himself relies on fragmentary secondary evidence of the 13th and 19th Centuries CE (p.91). Curiously, law codes from the earlier Qin dynasty do survive, and the authors refer to legal texts carved into bamboo excavated in the 1970s from a 3rd Century BCE grave. Throughout, Head and Wang are clear about their sources: the extent to which primary documents are available, and the fragmentary nature of the sources for existing translations.

 

The book reads for the most part as an introductory text: the first chapter introduces the reader, not only to an overview of the thirty centuries of Dynastic Chinese rule, but also to Chinese language itself and to the basic Chinese legal concepts also. The authors present a summary of the profound differences between the Chinese and Western languages and the problems posed by the difficulties of translation. There are text and illustration boxes showing the changes from one dynasty to the next, development of legal and philosophical ideas, statutes on punishment, maps indicating the reach of the various empires, and so on. All of these provide crucial tools for the reader coming to the subject for the first time. This use of visual and tabular aids is [*152] entirely appropriate given the intended readership, and consequently there is a certain ‘text and materials’ feel to the book. There are several passages in which the authors allow other secondary commentaries to do the explaining. There are times when this feels like something of an abdication of responsibility on the part of Head and Wang, since there are a number of places where an extract from a single commentator’s work is given the task of explaining a potentially controversial concept or event with little or no comment from the Head and Wang themselves. However, the authors are sensitive to the fact that much of Chinese legal history is given to different interpretations. On the question of when written law was first publicly promulgated, we are presented with the competing views. Head and Wang consider the written evidence, consisting of correspondence between scholars and politicians. In any event, the use of lengthy quotations can be seen as consistent with the overarching value of this book in introducing the first-time reader to the various sources, secondary and primary.

 

Head and Wang have presented an account of Chinese legal history that is bold and refreshing in its style. Punctuated as it is with grisly and sometimes amusing anecdotes, I have never enjoyed reading a book of History so much since Terry Jones’ THE CRUSADES. However, it is also a serious book. Despite the breathtaking speed with which the authors drag the reader through the highs and lows of Dynastic China, the authors are careful in their presentation and are faithful to the sources. The clear and detailed references to the key secondary sources provide the necessary academic rigour that makes this a useful sourcebook for researchers as well as an entertaining read.

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© Copyright 2006 by the author, David Gurnham.