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 HARVARD STUDIES IN EAST ASIAN LAW
1

LAW IN I M P E R I A L CHINA

The Harvard Law School, in cooperation with Harvard's East Asian

Research Center, the Harvard-Yenching Institute, and scholars from
other institutions, has initiated a program of training and research
designed to further scholarly understanding of the legal systems of
China, Japan, Korea, and adjacent areas. Accordingly, Harvard Uni-
versity Press has established a new series to include scholarly works
on these subjects. The editorial committee consists of Jerome Alan
Cohen ( chairman ), John K. Fairbank, L. S. Yang, and Donald Shively.
LAW IN IMPERIAL CHINA
Exemplified by 190 Ch'ing Dynasty Cases

(Translated from the Hsing-an hui-lan)

With Historical, Social, and

Juridical Commentaries

by
Derk Bodde
and
Clarence Morris

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts
1967
© Copyright 1967 by the President and Fellows of Harvard College

All rights reserved

Distributed in Great Britain by Oxford University Press, London

Library of Congress Catalog Card Number 67-27080

Printed in the United States of America

 PREFACE

Clarence Morris

The scholarly literature in Western languages on the tradi-

tional law of China is relatively meager. The materials, however,
are voluminous. Over the centuries the Chinese developed a com-
plicated, expanding legal system. This vast system was indige-
nous; only in the nineteenth and twentieth centuries has the legal
thought of other countries influenced Chinese law. The first
Chinese imperial code was promulgated in the third century B.C.
Its draftsmen drew on still more ancient Chinese laws, some of
which were in force at least three centuries earlier. Each succes-
sive Chinese imperial dynasty promulgated a new code—a revi-
sion, and elaboration, and sometimes a radical rearrangement of
the code of its predecessor. The last of these, the Ch'ing Code, as-
sumed definitive form in 1740. Like the earlier codes, it too was
uniquely Chinese. Imperial China's legal documents were not, of
course, restricted to codes. Orderly and large collections of re-
ported cases also existed and Chinese scholars, from time to time,
dealt in various ways with their heritage of legal history.
This volume starts with a survey of the main currents of these
Chinese legal developments; it then presents translations of 190
illustrative Ch'ing cases; it concludes with a legal analysis throw-
ing some light on how the Ch'ing Code worked.
This is the way we came to write this book. In September
1959, the University of Pennsylvania's Graduate Department of
Oriental Studies embarked on a two year seminar to discuss ori-
ental legal systems. Derk Bodde, Professor of Chinese, and I
were members. Dr. Bodde lectured to our seminar on Chinese
law for several months. His presentation opened a vista on law
with wide cultural dimensions. It seemed to me that professional
law students could profit from so rich a topic. I proposed, there-
fore, that with the help of Dr. W. Allyn Rickett (also a sinolo-
vi PREFACE

gist) we three offer a Chinese legal thought course in our law

school. They accepted, and we commenced teaching the course
in January 1961. It was, perhaps, the first course on Chinese law
ever given in an American law school. W e have repeated the
course five times, developing teaching materials as we went
along. This volume is an outgrowth of study materials prepared
for the first half of the course. (The second half of our course
deals with the law of Republican and Communist China, study
materials for which are not yet ready for publication. )
W e start our course with Dr. Bodde presiding. He deals with
the history and theory of Chinese law from ancient times through
the Ch'ing dynasty (1644-1911), by giving us systematic lec-
tures on the origins, nature, attitudes, and procedures of Chinese
legal systems and their relations to society. Part One of this book
has grown out of his lectures. I then take the chair and preside
over several meetings spent in discursive analysis of cases se-
lected from the translations in Part Two. Such an analysis is pre-
sented in Part Three.
When first we offered the course, we gave our students a wide
variety of reading assignments. Our case materials were at the
outset brief summaries that I had gleaned from works in English
such as Alabaster's Notes and Commentaries on Chinese Criminal
Law, The Peking Gazette (in translation), and van Gulik's
translation of the T'ang-yin-pi-shih. W e soon came to see that
these scattered materials were inadequate. They were illustrative
rather than documentary. Though they had served well enough in
the works from which I culled them, they were too sketchy for
professional instruction in a law school.
W e therefore decided to turn from imperfect summaries and
paraphrases to Chinese originals; for this purpose Dr. Bodde se-
lected the largest and best of all Chinese casebooks, the Hsing-an
hui-lan or Conspectus of Penal Cases. This title is a cover desig-
nation for three successive compilations dated 1834, 1840, and
1886, and containing a total of more than 7,600 cases covering the
years 1736-1885. Most of the cases were taken by the compilers
directly from the archives of the highest judicial organ in Peking,
the Hsing Pu or Board of Punishments. From this gigantic collec-
tion we undertook the difficult task of selecting for translation our
 PREFACE vii
190 cases, initially for classroom discussion and then for inclusion
in this book. We tried to select cases that are interesting and
representative.
We started our translation program by asking one of our ju-
niors to translate the table of contents of the Hsing-an hui-lan
under Dr. Bodde's supervision. I, then, picked out sections that
looked profitable and tried to guess which of these might be es-
pecially important. Next, our junior translators went to work on
at least two cases in each section; they translated several more
cases from those sections that I had rated as important. First
drafts of translations were read by Dr. Bodde and then submitted
to me for either elimination or approval for polishing. We oper-
ated on this plan for some time with the hope that supervisory re-
view by Dr. Bodde and legal editorial revision by me would
produce satisfactory case translations. Neither Dr. Bodde nor I
planned to expend great efforts on the cases. We had each sup-
posed that production of our teaching materials would not re-
quire us to work long and hard. The supposition proved true in
my case. Although my part was not quite so simple as I thought it
would be, my efforts have not much exceeded my expectations.
The demands on Dr. Bodde, however, mushroomed. Transla-
tion of the abstruse classical Chinese of the cases was hard going,
especially so since our translators had neither a comprehensive
overview of the Ch'ing Code nor a grounding in Chinese legal
history. Although the first translations were initially helpful, Dr.
Bodde found that he had to spend considerable time on each of
them. He worked and reworked the cases repeatedly; many of the
printed versions hardly resemble the first translations. Soon, too,
he decided that our original selection needed supplementation,
and many of the cases were translated first and last by him. The
further Dr. Bodde developed the historical and procedural mate-
rials, the more demanding they also became. So what had started
out as an interesting sideline absorbed Dr. Bodde's available
energies for many months. Even then he was not done; his text
and cases called for appendices, glossary, and bibliography which
could not be delegated. These demands made Dr. Bodde the
major contributor in this collaboration. I stand ready, of course,
to share responsibility for the whole work, and especially for its
vili PREFACE
legalistic aspects. Nevertheless, he pulled the laboring oar in the
development of Parts One and Two of this book; once we devel-
oped the plan for these two parts my role became editorial and
advisory. In the production of the short Part Three, our roles
were reversed; I wrote the first draft which was brought to final
form with Dr. Bodde's invaluable help. The appendices, glossary,
and bibliography are wholly Dr. Bodde's, except for the correlat-
ing of the French and Chinese code references in Appendix A,
which was largely the work of Dr. Werner Ning, now of the Law
School of Northwestern University. The index was compiled by
Mrs. Alice H. Frey, who also helped read proof.
We are mindful of our debt to those who translated for us.
Their work contributed to and advanced the project. We want to
express appreciation to the late Mr. F. S. Ch'ien, whose knowl-
edge of the bureaucratic systems of both imperial and Republican
China was particularly helpful; to Mrs. Nancy Sheng-wu Cheng,
of the East Asian collection of the Van Pelt Library, University of
Pennsylvania; and to Messrs P'ei-chih Hsieh and Wu-su P'an, now
respectively on the faculties of the University of Saskatchewan
and of Bates College. Mr. P'an also prepared a paper on aspects
of Ch'ing legal procedure with special reference to the Hsing-an
hui-lan which helped in the development of certain matters in
Chapter V of Part One of this book. Dr. Jonathan Mirsky, now on
the staff of Dartmouth College, spent a part of one summer in
preliminary reworking of some of the translated cases, particu-
larly from the point of view of English style.
Naturally we are pleased to have this book initiate the Harvard
Studies in East Asian Law series of Harvard University Press. For
their help in bringing the book into the series, we are grateful to
Professor John K. Fairbank, Director of the East Asian Research
Center at Harvard, and to Professor Jerome A. Cohen of the Har-
vard Law School. Professor Cohen and his assistant, Mr. Yung-
fang Chiang, have also offered valuable suggestions on certain as-
pects of Parts One and Two. Others to whom we are indebted for
items of bibliographical help include Professor M. H. van der
Valk of the University of Leiden, Professor Hui-lin Li of the Uni-
versity of Pennsylvania, Professor A. F. P. Hulsewé of the Uni-
versity of Leiden, and Professor Hans Bielenstein of Columbia
 PREFACE IX
University, as well as the librarians of the East Asian collections
at Harvard and Columbia.
To Mr. Henri Vetch, Director of the Hong Kong University
Press, we owe thanks for contributing the Chinese woodblock il-
lustration of the courtroom scene which adds to the book's inter-
est and attractiveness. Finally, we are happy to thank Mrs.
Andrea Kimmelman, who prepared much of the manuscript with
skill and patience.
The Institute of Legal Research of the University of Pennsyl-
vania School of Law generously supplied funds we needed from
time to time. We are very grateful for this essential support.
We also want to express our thanks to the American Philosoph-
ical Society for permission to reprint an article by Dr. Bodde,
"Basic Concepts of Chinese Law," originally published in Pro-
ceedings of the American Philosophical Society, 107.375-398
( 19^3 ) j and now, with slight revisions, reprinted as the first chap-
ter of Part One of this book.
C.M.
Professor of Law
University of Pennsylvania
April 1967
 CONTENTS

PART ONE PRELIMINARY ESSAY ON CONCEPTS

AND PRACTICES ι
I B A S I C C O N C E P T S OF CHINESE LAW
ι Scope and Significance of Chinese
Law 3
2 Law, Religion, and Economics 8
3 Ancient Chinese Theories of the
Origin of Law il
4 The Earliest Chinese "Code" 15
5 Confucians and Legalists 17
6 Confucian Views of Li and Law 19
7 The Legalists and Law 23
8 Legalist Triumph but Confuciani-
zation of Law 27
9 The Imperial Codes as Exemplifi-
cations of Li 29
10 Filial Piety, Loyalty, and Humani-
tarianism in Law 39
11 Law and Cosmic Harmony 43
12 Summary and Conclusion 48
I I T H E C H ' I N G C O D E AND ITS PEDIGREE
1 Bibliographical Note 52
2 History and Anatomy of the Ch'ing
Code 55
3 Statutes and Sub-statutes 63
4 Commentaries and Translations 68
I I I THE PENAL SYSTEM
1 The "Five Punishments" 76
2 Imprisonment and Fines 78
3 The Light and Heavy Bamboo 80
4 Penal Servitude 81
xii C O N T E N T S

5 Life Exile 83
6 Military Exile 87
7 The Death Penalties 91
8 Supplemental Punishments 95
9 General Comments on the Penal
System 98
10 How Many Offenses Were Punish-
able under Chinese Law? 102
11 Western Glimpses of Chinese
Punishments 104
IV T H E JUDICIARY
1 The Appellate System 113
2 The Board of Punishments 122
3 Capital Cases 131
4 The Assizes 134
V T H E HSING-AN HUI-LAN OR CONSPECTUS
OF PENAL CASES
1 The Conspectus, Its Background
and Purpose 144
2 The Sources 151
3 Problems of Selection and
Translation 156
VI CHINESE SOCIETY AND GOVERNMENT
A s SEEN IN T H E CONSPECTUS
1 Crime in Ch'ing China 160
2 Who Were the Criminals? 165
3 The Judicial Process 173
4 The Regularization of Society 184
5 The Family 192

PART T W O 190 CASES F R O M T H E HSING-AN

HUI-LAN
Table of Cases 203
Explanation of Headings 211
Note on the Translations 212
Translations of Cases 214
 C O N T E N T S Xiii

PART T H R E E STATUTORY INTERPRETATION

E X E M P L I F I E D IN THE CASES
Introduction 493
Clear Statutes, Clearly Applicable 500
The Unreliability of Literalism 505
No Statute Applicable; The Role of
Analogy 517
Catch-all Statutes 530
Clemency 533
Conclusion 541

APPENDICES
A List of Cited Statutes and Sub-statutes 545
Β List of Cited Punishments and Related Data 550
C Chronological Distribution of Cases 554
D Geographical Distribution of Cases 556
E Sources of Cases 558
F Kao Yao and Early Chinese Law 559
G Cosmic Harmony in the Ch'ing Dynasty 561

BIBLIOGRAPHY
A Original Sources 563
Β Studies in Chinese and Japanese 567
C Selected Western Works on Pre-Republican Chinese
Law 570

GLOSSARY
A Names and Terms 577
Β Section Titles in the Hsing-an hui-lan 588

INDEX 595
 ILLUSTRATIONS

I. "Kao Yao Clarifies the Punishments"

This modern ( 1905 ) Chinese depiction of Kao Yao dispensing
justice with the aid of the supernatural Hsieh-chai shows, in the
center, two suspects kneeling before the legendary judge. One
of them, his face evincing terror, is about to be butted by the
Hsieh-chai. Guards and their prisoners appear in the foreground,
the latter fettered or wearing the cangue around their necks.
Lictors flank the dais, two of them with staves, and from the
rear comes an attendant bringing tea for the judge.
This woodblock engraving comes from the Ch'in-ting Shu-
cking T'u-shuo or Imperially Compiled Edition of the Documents
Classic with Illustrations and Explanations (Peking, 1905). Al-
though the text of the ancient Documents Classic itself makes no
mention of the Hsieh-chai and refers only to Kao Yao, and though
the scene here depicted is utterly unhistorical, it nonetheless pro-
vides an excellent idea of how an imperial Chinese court looked
as late as the early twentieth century.
Photograph courtesy of Mr. Henri Vetch, Hong Kong.
Appendix F contains more information about Kao Yao.

II. The Hsieh-chai

This "life-size" bronze figure of the Hsieh-chai, no doubt unique
in the world today, was made in 1962 by the Philadelphia sculp-
tor Henry Mitchell and stands in the main hall of the University
of Pennsylvania Law School. The bilingual inscription describes
the Hsieh-chai's magical judicial powers.
Appendix F contains more information about the Hsieh-chai.
"Kao Yao Clarifies the Punishments"
 Hilf H «ÇHA t
fSjr»h-j*i) *in¿fí*)Lm
The Hit«h-ch*» «« an ancicnt Chin«· tupirni·
turai animal, goat-lih· in apparane· but with

g
only one horn. It h endow·* with th· fatuity
of detecting th« gutity, an« can dnimgu'vh
between the crooked »nd th« upright I« th·
daft oí Shun (legend»«? t*ge-rui«r. circa
2200 A.C. % when th« famout m»mtt«r Kao Tao
tried catei in which gutlt «ra· uncertain, h« Ä'J Í i f c * - Í
would order the H»»eh-<h*i to butt th· guilty,
Thote who were MI fact guilty « woutd butt,
whereat the .nnocent it would not butt.
Λ *
Aronx· «tat»·
by Henry Mitch*!!. IH2 - è . I H -fco ί

Slow and painful ha» been mio'»

progrm from magic to law

The Hsieh-chai and Inscription

 Part One

PRELIMINARY ESSAY ON
CONCEPTS AND PRACTICES
 I·BASIC CONCEPTS OF
CHINESE LAW

l. Scope and Significance of Chinese L a w

Western scholars on China, with only a few distinguished ex-

ceptions, have until recently shown but little interest in the study
of Chinese law. Today, especially in the United States, the situa-
tion is changing, but the stimulus obviously comes much more
forcibly from the China of Mao Tse-tung than from the law of
pre-Republican (pre-1912) China, which, especially in its formal
codified aspects, is the subject of this book.1
Good reasons can of course be found to explain the traditional
indifference. They include the lack of legal training or interest
among all but a handful of earlier Western sinologists, the for-
midable difficulties in style and vocabulary of the Chinese legal
literature, and the fact that Chinese scholars themselves usually
regarded this literature as utilitarian only and hence as little
worthy of study on esthetic or inspirational grounds.
Behind this last point, however, lie other more basic consid-
erations: the fact that the written law of pre-modern China was
overwhelmingly penal in emphasis, that it was limited in scope to
being primarily a legal codification of the ethical norms long
dominant in Chinese society, and that it was nevertheless rarely
invoked to uphold these norms except when other less punitive
measures had failed. Chinese traditional society, in short, was by
1
In the pre-modern field, nonetheless, a notable contribution is T'ung-tsu
Ch'ii, Law and Society in Traditional China (Paris and The Hague, 1 9 6 1 ) ,
which is a revised English version of the author's 1947 work in Chinese. The
most comprehensive study of Chinese law in a Western language is Jean Escarra,
Le Droit chinois (Peiping, 1 9 3 6 ) ; for an English translation, see Gertrude R.
Browne, tr., Chinese Law (Cambridge, Mass.: Xerox reprint, 1 9 6 1 ) . This im-
portant pioneer work is made sketchy by its broad coverage and now requires
revision. For the Ch'ing dynasty ( 1 6 4 4 - 1 9 1 1 ) , which is the main focus of the
present book, the most important previous work is Ernest Alabaster, Notes and
Commentaries on Chinese Criminal Law (London, 1899), on which see Chap. II,
sec. 1.
4 LAW IN IMPERIAL CHINA

no means a legally oriented society despite the fact that it pro-

duced a large and intellectually impressive body of codified law.
The penal emphasis of this law, for example, meant that mat-
ters of a civil nature were either ignored by it entirely (for ex-
ample, contracts ), or were given only limited treatment within its
penal format (for example, property rights, inheritance, mar-
riage ). The law was only secondarily interested in defending the
rights—especially the economic rights—of one individual or
group against another individual or group and not at all in de-
fending such rights against the state. What really concerned the
law—though this is to be surmised rather than explicitly read in
the Chinese legal literature—were all acts of moral or ritual im-
propriety or of criminal violence which seemed in Chinese eyes to
be violations or disruptions of the total social order. The existence
of the norms of propriety was intended to deter the commission of
such acts, but once they occurred, the restoration of social har-
mony required that punishment be inflicted to exact retribution
from their doer. In the final analysis, a disturbance of the social
order really meant, in Chinese thinking, a violation of the total
cosmic order because, according to the Chinese world-view, the
spheres of man and nature were inextricably interwoven to form
an unbroken continuum.2
For these reasons, the official law always operated in a vertical
direction from the state upon the individual, rather than on a
horizontal plane directly between two individuals. If a dispute in-
volved two individuals, individual A did not bring a suit directly
against individual B. Rather he lodged his complaint with the au-
thorities, who then decided whether or not to prosecute individ-
ual B. No private legal profession existed to help individuals
plead their cases, and even in the government itself, because law
was only the last of several corrective agencies, officials exclu-
sively concerned with the law operated only on the higher admin-
istrative levels. On the lowest level, that of the hsien (district or
county), which was the level where governmental law impinged
2 See especially M. H. van der Valle, Interpretations of the Supreme Court at
Peking, Years 1913 and 1916 (Batavia [Jakarta]: University of Indonesia Sinologi-
cal Institute, 1949), pp. 20-21, and M.J. Meijer, The Introduction of Modern
Criminal Law in China (Batavia, 1949), pp. 3-4. For the Chinese concept of
cosmic harmony, see sec. 11 below, Appendix G, and Chap. VI, end of sec. 3.
 B A S I C C O N C E P T S 5
most directly upon the people, its administration was conducted
by the hsien magistrate as merely one of his several administra-
tive functions. Although he usually lacked any formal legal train-
ing, he was obliged to act as detective, prosecutor, judge, and
jury rolled into one.
Fortunately for the operation of the system, however, the
magistrate was commonly assisted in his judicial work by a legal
secretary who did possess specialized knowledge of the law, and
who, on behalf of the magistrate, could prepare cases for trial,
suggest appropriate sentences, or write the legal reports which
went to higher governmental levels. Yet it is indicative of the
Chinese attitude toward law that this secretary did not himself
belong to the formal administrative system. He was merely a per-
sonal employee of the magistrate, who paid his salary out of his
own private purse. Hence the secretary was not permitted to try
cases himself or otherwise to take an active part in the trials.
However, to avoid miscarriages of justice on this lowest adminis-
trative level, a very carefully defined system of appeals existed
which automatically took all but minor cases to higher levels for
final judgment—in the case of capital crimes as far upward as the
emperor himself.3
How law in imperial China became the embodiment of the
ethical norms of Confucianism will be discussed later. Here it
should be stressed that in China, perhaps even more than in most
other civilizations, the ordinary man's awareness and acceptance
of such norms was shaped far more by the pervasive influence of
custom and the usages of propriety than by any formally enacted
system of law. The clan into which he was born, the guild of
which he might become a member, the group of gentry elders
holding informal sway in his rural community—these and other
extra-legal bodies helped to smooth the inevitable frictions in
3
See Chap. I V , sec. ι . Good accounts of judicial procedure in imperial times
appear in R. H. van Gulik, tr., T'ang-yin-pi-shih, "Parallel Cases from under the
Pear-tree" (Leiden, 1 9 5 6 ) , Chap. 3 of Introduction and in Sybille van der
Sprenkel, Legal Institutions in Manchu China (London, 1 9 6 2 ) , Chap. 6. Particu-
larly valuable for its account of the legal secretary and of the legal machinery
which operated at the magistrate's level and from there took cases up to higher
levels is T'ung-tsu Ch'ü, Local Government in China under the Ch in g ( Cam-
bridge, Mass., 1 9 6 2 ) , Chap. 6, "Private Secretaries," and Chap. 7, "Administra-
tion of Justice."
6 LAW IN IMPERIAL CHINA

Chinese society by inculcating moral precepts upon their mem-

bers, mediating disputes, or, if need arose, imposing disciplinary
sanctions and penalties.4
The workings of such unofficial agencies were complemented
by procedures on the part of the government, procedures which,
despite their official inspiration, functioned quite separately from
the formal legal system.5 These extra-legal organs and proce-
dures, then, were what the Chinese everyman normally looked to
for guidance and sanction, rather than to the formal judicial sys-
tem per se. Involvement in the formal system was popularly re-
garded as a road to disaster and therefore to be avoided at all
cost. "Win your lawsuit and lose your money," runs a Chinese
proverb. Or again: "Of ten reasons by which a magistrate may
decide a case, nine are unknown to the public." β
One might conclude that the real reason for the Western neg-
lect of Chinese formal law is that this law is not inherently de-
serving of much attention. Such a conclusion, however, would be
unfortunate on several counts. In the first place, law is an impor-
tant touchstone for measuring any civilization, and its differing
role in China as compared with its role in the West points to basic
societal differences between the two civilizations which deserve
detailed analysis. In the second place, the various extra-legal
bodies for social control mentioned above, despite their obvious
importance and the generalized remarks about them to be found
in many writings, are very difficult to study with precision be-
cause of their scattered and informal mode of operation, and the
fact that what they did and said was often either not written

4 On extra-legal mediation organs and techniques in Ch'ing times, see the

excellent summary by Jerome Alan Cohen, "Chinese Mediation on the Eve of

Modernization," California Law Review, 54:1201-1226 (1966).
5 These procedures, which were of a police nature ( the pao-chia system of
registration and crime-reporting), economic (the li-chia system for encouraging
tax payment and governmental distribution of grain in times of need), and
ideological (hortatory lectures on moral duties, ceremonies in honor of the
aged), are described in great detail in Kung-chuan Hsiao, Rural China, Imperial
Control in the Nineteenth Century (Seattle, i960). They are also summarized
in Dr. Hsiao's article, "Rural Control in Nineteenth Century China," Far Eastern
Quarterly, 1 2 : 1 7 3 - 1 8 1 ( 1 9 5 3 ) .
" See William Scarborough, A Collection of Chinese Proverbs, rev. C. Wilfred
Allan (Shanghai: Presbyterian Mission Press, 1926), pp. 334 and 335, as quoted
in van der Sprenkel, p. 135.
 B A S I C C O N C E P T S 7
down at all or, if written, not readily available in published
form.7
The literature on formal Chinese law, by contrast, is large in
quantity, fairly readily available, and covers a longer time span
than that of any other present-day political entity. It includes the
legal sections in various encyclopedic compilations of governmen-
tal institutions, the chapters on legal development in many of the
dynastic histories,8 several large compendia of actual law cases,®
and above all the voluminous law codes of successive dynasties.
The codes, in particular, have a continuity and authoritativeness
which make them unrivaled instruments for measuring precisely,
dynasty by dynasty, the shifting configurations of Chinese social
and political values as officially defined. So far this challenging
task has hardly been attempted. 10
The most recent of the dynastic codes is that of the Ch'ing or
Manchu dynasty (1644-1911). It was compiled in definitive
form in 1740 and consists of 436 sections that contain a greater
number of statutes and approximately 1,800 sub-statutes.11 For
previous dynasties there also exists a sequence of earlier codes
going back to the T a n g Code of 653, in 501 articles.12 Before this

7 It is possible to study the rules of many large clans, however, as preserved

in their genealogies. See Hu Hsien Chin, The Common Descent Group in China
and Its Function ( N e w York: Viking Fund, 1938); Hui-chen W a n g Liu, The
Traditional Chinese Clan Rules (Locust Valley, N.Y.: J. J. Augustin for the
Association for Asian Studies, 1959); and Hui-chen Wang Liu, "An Analysis of
Chinese Clan Rules: Confucian Theories in Action," in D. S. Nivison and Arthur
F. Wright, eds., Confucianism in Action (Stanford: Stanford University Press,
1959). pp. 63-96.
" O n both of these categories see Chap. II, sec. 1.
"Notably the nineteenth-century Hstng-an hui-lan (Conspectus of penal cases;
Shanghai, ca. 1886), from which 190 of the more than 7,600 cases have been trans-
lated in this book. A much smaller compilation of 144 cases, made in 1211, has
been translated in full by van Gulik.
10 One exception is Dr. Ch'ii's Law and Society, which, however, may be
criticized on the grounds that it unduly emphasizes the unchanging nature of
these attitudes. A different approach might reveal significant, although less
immediately evident, changes in attitudes.
" T h e Ta Ch'ing Iti-li is available in two partial translations: George Thomas
Staunton, tr., Ta Tsing Leu Lee, Being the Fundamental Laws . . . of the
Penal Code of China (London, 1810), and Gui Boulais, tr., Manuel du code
chinois (Shanghai, 1924). See the end of Chap. II below on these translations.
The translation by Boulais is far more complete and therefore will be cited
regularly in this book.
13 The T'ang lü shu-yi (T'ang Code with commentary) is as yet untranslated.

Although it is traditionally said to contain 500 articles, the actual number is 501
8 L A W IN I M P E R I A L C H I N A

date, no codes survive save for scattered quotations in other

works. However, a study still in progress has already yielded a
wealth of information on the code and judicial procedure of the
first lengthy imperial dynasty, that of Han (206 B . C - . A . D . 220). 13
Prior to the Han and its short-lived predecessor, the Ch'in
dynasty (221-207 B-C. ), n 0 centralized empire yet existed in
China. At that time there were only a number of independent and
mutually warring principalities. This pre-imperial age, often
called the age of Chinese feudalism because of its institutional
similarities to medieval Europe, is also the age that saw the
formative beginnings of Chinese written law. Excluding unreli-
able myth and legend, the earliest datable evidence of such
written law is the promulgation in 536 B.C. of certain "books of
punishment" in one of these principalities ( see section 4 ).

2. L a w , Religion, and Economics

A striking feature of the early written law of several major

civilizations of antiquity has been its close association with reli-
gion. Not all of these civilizations, to be sure, actually produced
systems of written law. When they did so, however, they com-
monly signalized this achievement by attributing, at least ini-
tially, a divine origin to the law they used—an origin signifying
that such law had been given or revealed to mankind by a god or
gods.14
This belief so obviously underlies Judaic and Islamic law that
for them it requires no further elaboration. It is equally apparent,
however, in the world's earliest written law as known to us from
according to a personal communication from Wallace S. Johnson, Jr., of the Uni-
versity of Kansas, who, as this book goes to press, is preparing a translation of
the first three books of the T'ang Code. However, the number 5 0 2 is given in
Karl Biinger, Quellen zur Rechtsgeschichte der T'ang-Zeit (Peiping, 1 9 4 6 ) , p. 3 1 .
T h e Code has been analyzed by Ou Koei-hing, La Peine d'après le code des
T'ang (Shanghai, 1 9 3 5 ) . For a study and partial translation of one of the codes
between Ch'ing and T'ang, see Paul Ratchnevsky, tr., Un Code des Yuan (Paris,
1937)·
13
A . F . P. Hulsewé, Remnants of Han Law (Leiden, 1 9 5 5 ) , one volume so far,
to be followed b y a second volume. For the dynasties between Han and T'ang,
see the translation and commentary by Étienne Balazs, tr., Le Traité juridique
du "Souei-chou" (Leiden, 1 9 5 4 ) .
14
This theme figures prominently in the excellent study b y William A . Robson,
Civilisation and the Growth of Law ( N e w York: Macmillan, 1 9 3 5 ) .
 B A S I C C O N C E P T S 9
Mesopotamia. On the stele bearing the famed laws of Ham-
murabi (ca. 1728-1686 B . C . ) , for example, a sculptured relief
shows Hammurabi receiving from Shamash, god of justice, a
divine commission for his writing of the laws. And in the prologue
to the laws themselves Hammurabi tells us: "Anum [the sky-god]
and Enlil [the storm-god] named me to promote the welfare of
the people, me, Hammurabi, the devout, god-fearing prince, to
cause justice to prevail in the land, to destroy the wicked and the
evil, that the strong might not oppress the weak." 1 5
In Egypt, on the other hand, no written law has as yet been
found, apparently because the pharaoh, as a living god on earth,
needed no law other than his own spoken utterance: "He, as a
god, was the state . . . The customary law of the land was
conceived to be the word of the pharaoh . . . The authority of
codified law would have competed with the personal authority of
the pharaoh." 16 And in India, too, no real equivalent of our idea
of law existed in early times. The nearest approach was the
concept of dharma, a word translatable as "law," but more
properly signifying "religious law," and hence ipso facto having a
divine connotation. Only later did the idea of a purely secular law
appear in Kautilya's Arthasästra ( ca. 323 B.C. ), but this develop-
ment was short-lived and failed to survive the political disruption
following the death of King Asoka. Since that time, therefore, we
are told that the "religious basis of law predominates through the
rest of Indian history until modern times." 17
Turning from Asia to Europe, we find Plato, in the famous
opening passage of the Laws, making one of his protagonists
unhesitatingly attribute the origin of law "to a god." 18 In Rome,
15
See translation by Theophile J. Meek, in James B. Pritchard, ed., Ancient
Near Eastern Texts (Princeton, N.J.: Princeton University Press, 1 9 5 0 ) , p. 1 6 4 .
T h e same idea goes back to the earliest collection of laws so far discovered,
that of Ur-Nammu (ca. 2 0 5 0 B.C.), the fragmentary prologue of which names
Nanna, tutelary deity of the city of Ur, as the god through whose guidance
Ur-Nammu "established justice in the land." See Samuel N . Kramer, " U r - N a m m u
L a w C o d e , " Orientalia, new series, 2 3 : 4 0 - 5 1 ( 1 9 5 4 ) , quotation on p. 46.
" J o h n A . Wilson, The Burden of Egypt (Chicago: University of Chicago
Press, 1 9 5 1 ) , pp. 4 9 - 5 0 -
17
Daniel Η. H. Ingalls, "Authority and L a w in Ancient India," in Authority
and Law in the Ancient Orient ( supplement to Journal of the American Oriental
Society, No. 1 7 , July-Sept. 1 9 5 4 ) , pp. 3 4 - 4 5 (quotation on p. 4 3 ) .
18
T h e Athenian in the book asks his companions: " D o you attribute the
origin of your legal system to a god or a man?" T o which the Cretan replies:
 10 LAW IN IMPERIAL CHINA

similarly, despite its early secularization of law, we find Cicero

purporting to quote "the opinion of the wisest men of his day" to
the effect that "Law is not the product of human thought, nor is it
any enactment of peoples, but something which rules the whole
universe . . . Law is the primal and ultimate mind of God." 19
Even in eighteenth-century England, indeed, after centuries of
experience with a secularly based common law, we find a similar
conception persisting in legal theory. Thus we are told concern-
ing Sir William Blackstone, author of the famous Commentaries
( 1765 ), that he "regarded divine law as the corner-stone of the
whole [legal] edifice," "declared that divine law had been spe-
cifically revealed to men through inspired writings," and "sought
to make secular law approximate to the dictates of God and of
nature." 20
The contrast of the Chinese attitude to the belief in a divine
origin of the law is indeed striking, for in China no one at any
time has ever hinted that any kind of written law—even the best
written law—could have had a divine origin.
Another point worthy of attention is the possible relationship
of law to economic growth in certain civilizations. Mesopotamia,
for example, early experienced a very considerable commercial
development, reflections of which appear conspicuously in the
Hammurabi code. Mesopotamian civilization, in the words of a
specialist, was characterized by "the ubiquitous recognition of
private property," and a concern for "the rights of the individual
in relation to society and the cosmos." 21 The guess may be
hazarded that in part, at least, Mesopotamian law may have
arisen in response to this insistence upon private property and
individual rights.
Here again the contrast with China is instructive. For in China
"To a god; undoubtedly we ascribe our laws to Zeus, while in Sparta, the home
of our friend here, I believe Apollo is regarded as the first law-giver." Quoted in
J. Walter Jones, The Law and Legal Theory of the Greeks (Oxford: Clarendon
Press, 1956), p. 95; see also Robson, p. 32.
10 Cicero, De Legibus, II, iv; tr. Clinton Walker Keyes, De Legibus (Loeb
Classical Library; Cambridge, Mass., and London, 1948 reprint), p. 381. Also
paraphrased in Robson, p. 3.
20 Robson, pp. 47-48, summarizing the ideas of Blackstone as expressed in the

Introduction to his Commentaries on the Laws of England.

21 See E. A. Speiser, "Early Law and Civilization," Canadian Bar Review

(October 1953), pp. 863-877 (quotations on pp. 873 and 875).

 BASIC CONCEPTS IX

the initial stimulus for law was no more economic than it was
religious. Economic growth, to be sure, no doubt played a role in
transforming the society of feudal China to the point where it
could no longer get along without a written law. When this law
appeared, however, it was used neither to uphold traditional
religious values nor to protect private property. Rather, its pri-
mary purpose was political: that of imposing tighter political
controls upon a society which was then losing its old cultural
values and being drawn by inexorable new forces along the road
leading eventually to universal empire.

3. A n c i e n t C h i n e s e Theories of the Origin of L a w

Before entering upon this topic, a brief discussion of terms is

necessary. By far the most important word in the Chinese legal
vocabulary is fa. Fa is the usual generic term for positive or
written law as an abstraction ("law" or "the law"), but it may
also be used to mean separate "laws." The word was already in
common use before its appearance in legal contexts. Its root
meaning is that of a model, pattern, or standard; hence of a
method or procedure to be followed. From this root meaning
comes the notion, basic in Chinese legal thinking, that fa is a
model or standard imposed by superior authority, to which the
people must conform.
Another important word, perhaps even more common than fa
in early legal references, is hsing, signifying "punishment" (or
"punishments"), but more specifically "corporal punishment."
That the latter is its primary meaning is indicated, among other
things, by the inclusion in the written character for hsing of the
graph meaning "knife." There is every reason to believe that such
punishments as nose-cutting, leg-cutting, castration, and the like
were current in China well before the enactment of any systems
of written law (fa). Once written law came into existence, how-
ever, the meaning of hsing was extended to include not only the
punishments per se, but also the written prohibitions whose viola-
tion would result in these punishments. In this important sec-
ondary usage, therefore, hsing may be fairly understood in the
sense of "penal law" ( or "laws" ). The frequency of its occurrence
 12 L A W IN I M P E R I A L C H I N A

in the early legal passages—both alone and as an alternative for

fa—is indicative of the antiquity of the Chinese view which sees
written law, fa, as signifying primarily penal law, hsing. Until as
recently as the administrative reforms of 1906, this idea was
perpetuated in the name of the highest governmental legal organ,
the Hsing Pu or Board or Ministry of Punishments.
A third term, lü, though very important in the law codes of
imperial times (221 B.C. onward), appears only rarely in a legal
sense in earlier texts. As used in these codes, it is the technical
designation for the major articles into which the codes are
divided, and as such may be translated as "statute." It can also,
however, refer to the entire body of such statutes as a collective
entity, in which case it may conveniently, though a little loosely,
be rendered as "code." Aside from its legal significance, lü is also
the technical designation for the individual "pitch-pipes" (lü),
twelve in number and of graduated lengths, which were the basis
for the Chinese twelve-tone scale. The question of how, from this
meaning, lü came to acquire its legal connotation, is a very moot
one.22
With these definitions behind us, let us now see how the
ancient Chinese viewed the origins of law. A notable feature of
Chinese historical and philosophical thinking, apparent already
in early times, is its strongly secular tone. In general, it prefers to
explain human events in terms of the rational ( or what seems to it
to be the rational) than in terms of the supernatural. A good
example is the fate suffered by Chinese mythology already in the
early literature: in case after case, as we read this literature, the
fragmentary evidence suggests that what at one time must have
been the gods, demigods, or monsters of full-fledged myth have
since become "euhemerized" or "historicized" into the denatured
sage-kings, heroes, or rebels of pseudohistory.23
When we turn to the legal sphere, therefore, it should not
23
Answers are suggested by Hulsewé, Remnants of Han Lau), I, 3 0 - 3 1 , and by
Joseph Needham, Science and Civilisation in China (London and New York,
1 9 5 6 ) , II, 229 and 5 5 0 - 5 5 2 ; Needham discusses (pp. 229, 544 ff., and eke-
where) the various meanings of fa at considerable length. See also on lü Chap.
II below, sec. 3.
23
See D. Bodde, "Myths of Ancient China," in Samuel N. Kramer, ed.,
Mythologies of the Ancient World (New York: Doubleday Anchor Books, and
Chicago: Quadrangle Books, 1 9 6 1 ) , pp. 369-408, esp. 3 7 2 - 3 7 6 .
 BASIC C O N C E P T S I3

surprise us that here too the atmosphere is secular. What is really

arresting, however, especially when we remember the honored
status of law in other civilizations, is the overt hostility with
which its appearance is initially greeted in China—seemingly not
only as a violation of human morality, but perhaps even of the
total cosmic order.24
An excellent example of this attitude is a story—apparently the
historicized fragment of what was once a longer myth—providing
probably the earliest explanation for the origin of fa, written law.
The story appears in a short text entitled Lü hsing ( Punishments
of Lü ), itself a section of the important classic known as the Shu
ching or Documents Classic, where it is placed in the mouth of a
king who reigned around 950 B.C. Its actual date of composition
must surely be several centuries later, but just how much later is
hard to say with exactness. However, the fact that it is quoted
and mentioned by name in another text of the fourth century B.C.
provides us with at least a terminus ante quern.25
The remarkable feature of this story is that it attributes the
invention of fa neither to a Chinese sage-king nor even to a
Chinese at all, but rather to a "barbarian" people, the Miao,
alleged to have flourished during the reign of the (legendary)
sage Shun ( traditionally twenty-third century B.C. ). Thus the key
sentence tells us: "The Miao people made no use of spiritual
cultivation, but controlled by means of punishments (hsing),
creating the five oppressive punishments, which they called law
(fa)." Then the text goes on to say that many innocent people
24 The relationship of Chinese law to the cosmic order will be discussed further

in Chap. I, sec. 11, in Chap. VI, end of sec. 3, and in Appendix G. Here it
should be mentioned that in purportedly early literature there appears a well-
known tradition about a legendary administrator of justice, Kao Yao, which at
first sight seems to run counter to the hostile attitude just mentioned. Closer
examination, however, shows that the relationship of this tradition to actual
written law is a dubious one. See Appendix F, "Kao Yao and Early Chinese
Law."
26 For the translation of the following story, which has been used here with

modifications, see Bernhard Karlgren, tr., "The Book of Documents," Bulletin of

the Museum of Far Eastern Antiquities (Stockholm, 1950), 22:74. F ° r another
translation, see James Legge, tr., The Chinese Classics, 5 vols. (Hong Kong,
i960), III, 591-593. The work in which the Lü hsing is later quoted is the
Mo-tzu (compiled by followers of the philosopher of the same name, who lived
sometime between 479 and 381 B.C.); Y. P. Mei, tr., The Ethical and Political
Works of Motse (London: Arthur Probsthain, 1929), pp. 45-46, 51, and esp.
p. 64 (quoting the same sentence which appears below).
14 LAW IN IMPERIAL CHINA

were executed by the Miao, who were the first to administer such
punishments as castration or amputation of the nose or legs.
Shang Ti or the "Lord on High" ( the supreme god of the ancient
Chinese), seeing the resulting disorder among the people, felt
pity for the innocent and hence exterminated the Miao, so that
they had no descendants.26
The abhorrence of law expressed in this story no doubt reflects
a period in legal development ( sixth or fifth century B.C. ) when
written law was still a novelty and hence viewed with suspicion.
In later centuries, when law became more prevalent and the need
for its existence became increasingly recognized, various non-
mythological and soberly "sociological" explanations of its origin
appeared. Although their attitude toward law was no longer
hostile, they all agreed with the unknown author of the Miao
legend in explaining the origin of law in strictly secular terms.
The following are three representative examples, the first of
which dates from the pre-imperial age (third century B.C.), and
the other two from the Han empire (second century B.C. and
first century A.D., respectively):
In the days of antiquity, before the time when there were rulers and
subjects, superiors and inferiors, the people were disorderly and badly
governed. Hence the sages made a division between the noble and the
humble, regulated rank and division, and established names and appel-
lations, in order to distinguish the ideas of ruler and subject, of supe-
rior and inferior . . . As the people were numerous and wickedness
and depravity arose among them, they [the sages J therefore estab-
lished laws (fa) and controls and created weights and measures, in
order thereby to prevent these things. 27
L a w (fa) has its origin in social Tightness (yi). Social Tightness has
its origin in what is fitting for the many. W h a t is fitting for the many is
what accords with the minds of men. Herein is the essence of good
government . . . L a w is not something sent down by Heaven, nor is it

26
Further fragments of this myth, as found in this and other texts, state that
the Lord on High then separated Heaven from Earth so that people could no
longer pass from one to the other; also that the Miao, instead of being ex-
terminated, were banished to the extreme northwestern corner of the world,
where they continued to exist as a race of winged beings who, despite their wings,
were unable to fly. See Bodde, "Myths of Ancient China," pp. 389-394.
27 Shang chtin shu, Chap. 23 ( a third century B.C. work belonging to the

Legalist school); tr. J. J. L. Duyvendak, The Book of Lord Shang (London,

1928), pp. 3 1 4 - 3 1 5 , slightly modified here by D. Bodde.
 BASIC CONCEPTS 15

something engendered by Earth. It springs from the midst of men

themselves, and by being brought back [to men J it corrects itself.28
The sages, being enlightened and wise by nature, inevitably pene-
trated the mind of Heaven and Earth. They shaped the rules of proper
behavior (li), created teachings, established laws (fa), and instituted
punishments (hsing), always acting in accordance with the feelings of
the people and patterning and modeling themselves on Heaven and
Earth.29

4. T h e Earliest Chinese " C o d e "

From myth and social theory we should now turn to the

concrete beginnings of Chinese written law as recorded in au-
thentic history. The Chou dynasty (ca. 1027-221 B.C.) func-
tioned during its early centuries under a political system which
has often been compared to European feudalism. At the top were
the Chou kings, who exercised nominal sovereignty over the
entire Chinese cultural world. Under them were vassal lords who
held as fiefs from the Chou house a multitude of small principal-
ities, which were subdivided in turn into the estates of sub-
ordinate lords and officials. At the bottom of the pyramid came
the peasant serfs, hereditarily attached to these estates. In the
course of time, however, the vassal principalities broke away
from the Chou overlordship and became completely independent
states. By the sixth century B.C., a combination of social, political,
economic, and technological forces was bringing about an ac-
celerating dissolution of the old order.
The new forces included, among others: new agricultural
techniques which made increases in population possible; the

28Huai-nan-tzu (The Master of Huai-nan), ed. Liu Wen-tien, Huai-nan fiutig-

lieli chi-chieh (Huai-nan's Great and Illustrious [Composition] with Collected

Commentaries; Shanghai, 1933), 9:20. This work is of an eclectic philosophical
nature and was composed by scholars attached to the court of Liu An, Prince
of Huai-nan (died 122 B . C . ) . The chapter here quoted represents the Legalist
school.
29 Pan Ku, Han shu (History of the [Former] Han dynasty, ca. A.D. 80), Chap.

23, ("Treatise on Punishments and Law"); tr. Hulsewé, Remnants of Han Law,
I, 321-322, slightly modified here by D. Bodde. Although the sages are here
said to have "penetrated the mind of Heaven and Earth," they surely did so
through their own intelligence and not with the aid of divine revelation. Chinese
thinking regularly attributes the creation of civilization to the intelligence of the
ancient sages but never suggests that they received divine revelation.
 l6 L A W IN I M P E R I A L C H I N A

growth of commerce and rise of a money economy; the buying

and selling of land and partial freeing of the peasants from their
former serfdom; a growing administrative complexity in the state
governments; and the appearance of competing schools of philos-
ophy and politics. The final centuries of the Chou dynasty,
appropriately known as the Period of the Warring States (403-
221 B.C.), saw increasingly bitter warfare between the few large
states still surviving, till one of them, the state of Ch'in, suc-
ceeded in swallowing up its rivals one by one, and in 221 B.C.
finally created the first centralized empire in Chinese history. 30
Such is the background of interrelated changes against which
should be viewed the creation of the first "codes" of written law
in the late sixth century B.C. The earliest reliably known to us is
the "books of punishment" ( hsing shu ) which Tzu-ch'an, prime
minister of the state of Cheng, ordered to be inscribed in 536 B.C.
on a set of bronze tripod vessels. His action was followed by
similar steps in this and other states in 513, 501, and later. Al-
though the texts of these "codes" have in every case been lost, we
may judge of the opposition they aroused from the famed letter of
protest which the high dignitary of a neighboring state, Shu-
hsiang, sent to Tzu-ch'an upon the promulgation of the Cheng
laws: 31
Originally, sir, I had hope in you, but now that is all over. Anciently,
the early kings conducted their administration by deliberating on mat-
ters [as they arose]; they did not put their punishments and penalties
[into writing], fearing that this would create a contentiousness among
the people which could not be checked. Therefore they used the prin-
ciple of social Tightness (yi) to keep the people in bounds, held them
together through their administrative procedures, activated for them
the accepted ways of behavior (li), maintained good faith (hsin) to-
ward them, and presented them with [examples of] benevolence
(fen) . . .
But when the people know what the penalties are, they lose their
fear of authority and acquire a contentiousness which causes them to
30 For a survey of these developments, see D. Bodde, "Feudalism in China,"

in Rushton Coulborn, ed., Feudalism, in History (Princeton, N.J.: Princeton

University Press, 1956), pp. 49—92.
81 The letter is preserved in the Τso chuan history ( probably compiled mostly

in the third century B.C. from earlier records); tr. Legge, The Chinese Classics,
V, 609, modified here by D. Bodde. For a rather similar criticism by Confucius
of the promulgation of penal laws in the state of Chin in 513 B.C., see ibid., p.
732·
 BASIC CONCEPTS 17
make their appeal to the written words [of the penal laws], on the
chance that this will bring them success [in court cases J . . . Today,
sir, as prime minister of the state of Cheng, you have built dikes and
canals, set up an administration which evokes criticism, and cast
[bronze vessels inscribed with] books of punishment. Is it not going to
be difficult to bring tranquility to the people in this way? . . . As soon
as the people know the grounds on which to conduct disputation, they
will reject the [unwritten] accepted ways of behavior (li) and make
their appeal to the written word, arguing to the last over the tip of an
awl or knife. Disorderly litigations will multiply and bribery will be-
come current. By the end of your era, Cheng will be ruined. I have
heard it said that a state which is about to perish is sure to have many
governmental regulations.
To this criticism, Tzu-ch'an's brief reply was polite but un-
compromising:
As to your statements, sir, I have neither the talents nor ability to act
for posterity. My object is to save the present age. Though I cannot
accept your instructions, dare I forget your great kindness?
This letter is eloquent testimony to the unchanging spirit of
conservatism throughout the ages. Shu-hsiang's criticisms of dike
and canal building and of bigness in government are recognizably
those of any conservative legislator today whenever he attacks
public spending and demands a balanced budget. What is
uniquely Chinese and therefore most significant about the letter,
however, is its insistence upon the moral and political dangers
involved in the public promulgation of legal norms. This view of
law seems to have no real parallel in any other civilization.
It should not surprise us that Shu-hsiang's letter is strongly
Confucian in tone, notably in its use of such Confucian terms as
yi, li, hsin and jen. For though Confucius was but fifteen when
the letter was written, these terms and the ideas they connoted
were surely already "in the air" when he was young, and were not
complete innovations with himself.

5. Confucians and Legalists

Although Shu-hsiang himself cannot be formally counted a

Confucian, his letter nevertheless epitomizes what may be termed
the "purist" Confucian view of law. As we shall see shortly, the
l8 L A W IN I M P E R I A L C H I N A

Confucians were staunch upholders of the traditional "feudal"

scale of values. Hence it is natural that they should be bitterly
hostile to the new law, especially in its early stages. Later,
however, as it became increasingly apparent that law had come
to stay, the Confucians softened their attitude to the point where
they accepted law—although grudgingly—as a necessary evil.
Even then, however, they remained Confucian in their insistence
that the public enacting of law is not necessary in the ideal state,
and that even in the inferior administrations of their own times,
government by law should always be kept secondary to govern-
ment by moral precept and example.32
Opposed to the Confucians were men who, because of their
ardent advocacy of law, eventually came to be known as the
Legalists or School of Law (fa chia). Most of them were less
theoretical thinkers than tough-minded men of affairs who, as
administrators, diplomats, and political economists, sought em-
ployment from whatever state would use their services. Their aim
was direct and simple : to create a political and military apparatus
powerful enough to suppress feudal privilege at home, expand the
state's territories abroad, and eventually weld all the rival king-
doms into a single empire. Toward this goal they were ready to
use every political, military, economic and diplomatic technique
at their disposal. Their insistence on law, therefore, was moti-
vated by no concern for "human rights," but simply by the realiza-
tion that law was essential for effectively controlling the growing
populations under their jurisdiction. In thinking and techniques
they were genuine totalitarians, concerned with men in the mass,
in contrast to the Confucians, for whom individual, family, or
local community were of paramount importance. Yet it would be
unfair to regard them merely as unscrupulous power-hungry
politicians, for they sincerely believed that only through total
methods could eventual peace and unity be brought to their war-
torn world. If asked why they did what they did, they would no
doubt have echoed Tzu-ch'an's dictum: "My object is to save the
present age."

33 This shift in Confucian attitude, which it is easy to overlook, is rightly

stressed by T'ung-tsu Ch'ii, Law and Society, Chap. 6, sec. 3, "The Confu-
cianization of Law," pp. 267 ff.
 BASIC CONCEPTS 19

6. Confucian Views of Li and Law

As against the Legalists' fa or law, the key Confucian term is li.

This word has an extraordinarily wide range of meanings. In its
narrowest (and probably original) sense, it denotes the correct
performance of all kinds of religious ritual: sacrificing to the
ancestors at the right time and place and with the proper deport-
ment and attitude is li; so is the proper performance of divination.
In this sense li is often translated as ritual or rites. In a broader
sense, however, li covers the entire gamut of ceremonial or polite
behavior, secular as well as religious. There are numerous rules of
li for all customary situations involving social relationships, such
as receiving a guest, acquiring a wife, going into battle, and the
many other varied duties and activities of polite society. In this
sense, li is often translated as ceremonial, politeness, etiquette, or
rules of proper conduct. Finally, li in its broadest sense is a
designation for all the institutions and relationships, both politi-
cal and social, which make for harmonious living in a Confucian
society. The li, in short, constitute both the concrete institutions
and the accepted modes of behavior in a civilized state.
The Confucians believed that the li had been created by the
ancient sages, and that the disorder of their own age resulted
from men's failure to understand or live according to these li. A
prime Confucian duty, therefore, was to study and interpret the li
as handed down from antiquity so as to make them meaningful
for the present day. This idea led the Confucians to prepare
several written compilations of li which, however, did not assume
final form until near the end of the feudal age and during the
early part of the age of empire. During most of the Chou dynasty,
consequently, the li were transmitted in unwritten form only. At
the same time, their large number, complexity, and refinement
meant that they were largely an upper-class monopoly. Indeed,
what most readily distinguished the Confucian ideal gentleman
(the chün-tzu or Superior Man) from ordinary men was his
mastery of the li.
On the other hand, the Confucians believed that underlying
the minutiae of the specific rules of li are to be found certain
 2,0 L A W IN I M P E R I A L C H I N A

broad moral principles which give the li their validity because

they are rooted in innate human feeling; in other words, they
represent what men in general instinctively feel to be right. It is
this interpretation of li which has caused some modern scholars
to suggest that a comparison may be made between Confucian li
and the Western concept of natural law in apposition to a
comparison between Legalist fa and Western positive law. 33
Finally, and this point is important, the early li were the
product of a society in which hierarchical difference was em-
phasized. That is to say, the li prescribed sharply differing
patterns of behavior according to a person's age and rank both
within his family and in society at large ( one pattern when acting
toward a superior, another toward an inferior, still a third toward
an equal). This idea of hierarchical difference, with resulting
differences in behavior and privilege, has remained alive in Con-
fucianism throughout imperial times, despite the disappearance
of the pre-imperial feudal society that first gave it birth. 34
Following is a summary of the main Confucian argument with
the Legalists from the point of view of a "purist" Confucian:

ι. Man is by nature good (Mencius, 3 7 i ? - 2 8 g ? B.C.), or at

least is a rational being capable of learning goodness ( Hsiin Tzu,
ca. 298-ca. 238, B.C.). It is by inculcating the li that society
shapes the individual into a socially acceptable human being. The
li are thus preventive in that they turn the individual away from
evil before he has the chance of committing it, whereas law (fa)
is punitive in that it only comes into action to punish the individ-
ual for evil already committed.
2. A government based on virtue can truly win the hearts of
men; one based on force can only gain their outward submission.
The li are suasive and hence the instrument of a virtuous govern-
ment; laws are compulsive and hence the instrument of a tyran-
nical government.
3. The li derive their universal validity from the fact that they
were created by the intelligent sages of antiquity in conformity
33
See especially Needham, II, 519, 5 3 0 - 5 3 2 , 544 ff.
34
This point is stressed by T'ung-tsu Ch'ii, Law and Society, in his excellent
discussion of li on p. 230, note 1 1 . See also his entire Chap. 6, "The Confucian
School and the Legal School."
 B A S I C C O N C E P T S ZI

with human nature and with the cosmic order. Law has no moral
validity because it is merely the ad hoc creation of modern men
who wish by means of it to generate political power.
4. The five major relationships of Confucianism—those of
father and son, ruler and subject, husband and wife, elder and
younger brother, friend and friend—are instinctive to man and
essential for a stable social order. The li reinforce these and
similar relationships by prescribing modes of behavior differing
according to status, whereas law obliterates the relationships by
imposing a forced uniformity.
5. The li ( meaning at this point primarily rites and ceremony )
give poetry and beauty to life. They provide channels for the
expression of human emotion in ways that are socially acceptable.
Law, on the contrary, is mechanistic and devoid of emotional
content.
6. A government based on li functions harmoniously because
the li, being unwritten, can be flexibly interpreted to meet the
exigencies of any particular situation. A government based on law
creates contention because its people, knowing in advance what
the written law is, can find means to circumvent it, and will rest
their sophistical arguments on the letter rather than the spirit of
the law.
7. Laws are no better than the men who create and execute
them. The moral training of the ruler and his officials counts for
more than the devising of clever legal machinery.

To give the flavor of the Confucian spokesmen themselves, the

following are offered as a few representative quotations. In-
cluded, however, are two of non-Confucian origin, illustrative of
the fact that the Confucian distrust of law was shared by other
schools of thought, though sometimes for different reasons: 3 5

In hearing cases I am as good as anyone else, but what is really

needed is to bring about that there are no cases! 36
Lead the people by regulations, keep them in order by punishments
(hsing ), and they will flee from you and lose all self-respect. But lead

35
For another list of such quotations, see Balazs, Appendix 9.
"Confucius ( 5 5 1 - 4 7 9 B.C.), as quoted in the Analects, XII, 13.
22 L A W IN I M P E R I A L C H I N A

them by virtue and keep them in order by established morality (li),

and they will keep their self-respect and come to you. 37
The more laws (fa) and ordinances (ling) are promulgated, the
more thieves and robbers there will be. 38
Goodness alone [without law] does not suffice for handling govern-
ment. Law (fa) alone [without goodness] cannot succeed in operating
of itself.39
To have good laws (fa) and yet experience disorder—examples of
this have indeed existed. But to have a Superior Man ( chün-tzu ) and
yet experience disorder—this is something which from antiquity until
today has never been heard of.40
Laws (fa) cannot stand alone, and analogies cannot act of them-
selves. When they have the proper man, they survive; when they lack
the proper man, they disappear. Law is the basis of good government,
but the Superior Man (chün-tzu) is the origin of the law. Therefore
when there is a Superior Man, the laws, though they may be numeri-
cally reduced, succeed in being all-pervading. When there is no Supe-
rior Man, the laws, though they may be all-embracing, lose their power
of orderly enforcement, are unable to respond to the changes of affairs,
and suffice only to bring confusion.41
The Legalists (fa chia) make no distinction between kindred and
strangers, nor do they differentiate the noble from the humble. All such
are judged by them as one before the law (fa), thereby sundering the
kindliness expressed in affection toward kindred and respect toward
the honorable. Their program might perhaps be followed a single time,
but it is not one to be used for long. Hence I say of them that they are
stern and deficient in kindliness.42
37
Confucius, in Analects, II, 3 .
38
Lao-tzu, Chap. 5 7 . Although Lao T z u is traditionally said to have been an
elder contemporary of Confucius, most scholars today believe that the book
bearing his name (also known as the Tao-te ching) dates from the late fourth
or early third century B.C.
38
Mencius (ca. 3 7 1 - 2 8 9 B.C.), in the work bearing his name, IVa, 1, where
he quotes this as a saying of his time. This and the following passages belong to
an age when law was coming into wider use. Although they grudgingly accept
it as inevitable, they emphasize its secondary role in the government of the
Confucian ruler.
" H s i i n T z u (ca. 2 9 8 - 2 3 8 B.C.), Hsün-tzu, Chap. 9; tr. H. H. Dubs, The Works
of Hsüntze (London: Arthur Probsthain, 1 9 2 8 ) , p. 1 2 3 , modified here by D.
Bodde. This passage is repeated in Chap. 1 4 (not translated by D u b s ) .
41
Hsün-tzu, beginning of Chap. 1 2 (not translated by D u b s ) .
" S s u - m a T a n (d. 1 1 0 B.C.) and Ssu-ma Ch'ien (ca. 1 4 5 - 8 6 B.C.), Shih chi
(Records of the historian), Chap. 1 3 0 ; tr. Burton Watson, Ssu-ma Ch'ien, Grand
Historian of China ( N e w York: Columbia University Press, 1 9 5 8 ) , p. 46, modi-
fied here b y D. Bodde. This translated item appears in the essay on the six
schools of philosophy b y Ssu-ma T'an in this great history begun by himself and
completed b y his son, Ssu-ma Ch'ien. Ssu-ma T'an, though something of an
eclectic, was more inclined toward Taoism than Confucianism.
 BASIC CONCEPTS 23

A good government is one that takes benevolence (jen) and social

Tightness (yi) as its basic roots, and laws (fa) and regulations (tu) as
its lesser twigs . . . He who gives priority to the roots, but only sec-
ondary place to the twigs, is termed a Superior Man (chiin-tzu),
whereas he who lets his concern for the twigs result in damage to the
roots is termed a petty man (hsiao jen) . . . To ignore cultivation of
the roots while devoting effort to the twigs is to neglect the trunk while
giving water to the branches. Law, moreover, has its birth in the up-
holding of benevolence and social rightness, so that to lay great weight
on law while discarding social rightness is to value one's cap and shoes
while forgetting one's head and feet.43
The rules of polite behavior (li) do not reach down to the common
people; the punishments (hsing) do not reach up to the great digni-
taries.44

7. The Legalists and L a w

The main arguments of the Legalist position are as follows :

1. Although a very few persons may be found who are natu-

rally altruistic, the great majority of men act only out of self-
interest. Therefore, stern punishments are necessary. Law is con-
cerned only with the many who are selfish, not with the insignifi-
cant few who are good.
2. A government, if it is to be strong, must destroy factionalism
and privilege. Hence it is imperative for it to publicize its laws to
all and to apply them impartially to high and low alike, irrespec-
tive of relationship or rank.
3. Law is the basis of stable government because, being fixed
and known to all, it provides an exact instrument with which to
measure individual conduct. A government based on li cannot do
this, since the li are unwritten, particularistic, and subject to
arbitrary interpretation.

43
Huai-nan-tzu, 2 0 : 2 i b - 2 2 . The chapter is Confucian.
** Li chi (Record of the Li), Chap. 1 ; tr. James Legge, in F . Max Müller,
Sacred Books of the East (Oxford: Clarendon Press, 1 8 8 5 ) , X X V I I , 90, slightly
modified here b y D. Bodde. This best known of the above mentioned Confucian
compilations of li did not assume its final form until the first century B.C. but
is based upon earlier materials. The statement made here, that the officialdom
(to which the Confucians themselves belonged) is not subject to the penalties
of the commoners, was to assume key importance, as w e shall see, in imperial
Chinese law.
24 LAW IN IMPERIAL CHINA

4. A vital principle for reducing particularism and thereby

strengthening the state is that of group responsibility. Let the
population be grouped into units of five or ten families each, and
within each such unit let every individual be equally responsible
for the wrongdoing of every other individual, and equally subject
to punishment if he fails to inform the authorities of such wrong-
doing.
5. Because history changes, human institutions must change
accordingly. In antiquity people were few and life was easy, but
today the growth of population has resulted in a sharpening
struggle for existence. Hence, the li of the ancients no longer fit
modern conditions and should be replaced by a system of law.
Law should certainly not be changed arbitrarily; yet if it is to
retain its vitality it should equally certainly be kept ever respon-
sive to the shifting needs of its time.
6. A state that is strong is one that maintains a single standard
of morality and thought for its people. All private standards must
be suppressed if they do not agree with the public standard as
prescribed by law.
7. Men, being essentially selfish, cannot be induced merely by
moral suasion to act altruistically. Only by playing on their own
self-interest can the state induce them to do what it desires.
Hence the wise ruler establishes a system of rewards and punish-
ments in such a way that citizens—especially officials holding
important positions—are rewarded if their performance accords
exactly with the specific responsibilities attached to their position
but punished when this performance either falls short or exceeds
these specified responsibilities.
8. The importance of individual capabilities in government is
lessened when there is good legal machinery. Thus even a
mediocre ruler, provided he keeps to his laws, can have a good
administration.
9. Laws that are sufficiently stringent will no longer have to be
applied because their mere existence will be enough to deter
wrongdoing. Thus harsh laws, though painful in their immediate
effects, lead in the long run to an actual reduction of government
and to a society free from conflict and oppression.
 B A S I C C O N C E P T S 25

That the foregoing summary represents the Legalist position is

supported by the following quotations:

For governing the people there is no permanent principle save that it

is the laws (fa) and nothing else that determine the government. L e t
the laws roll with the times and there will be good government. L e t the
government accord with the age and there will be great achieve-
ment . . . But let the times shift without any alteration in the laws
and there will be disorder. L e t human capabilities multiply without
any modification in the prohibitions and there will be territorial dis-
memberment. This is w h y , in the sage's governing of men, the laws
shift with the times and the prohibitions vary with the capabili-
ties. 45
If the law (fa) is not uniform, it will b e inauspicious for the holder
of the state . . . Therefore it is said that the law must b e kept uni-
form. It is out of this that preservation or destruction, order or dis-
order, develop, and this it is that the sage-ruler uses as the great
standard for the world . . . All beings and affairs, if not within the
scope of the law, cannot operate . . . W h e n ruler and minister, supe-
rior and inferior, noble and humble, all obey the law, this is called
great good government. 4 6
W h a t are mutually incompatible should not coexist. T o reward those
w h o kill the enemy, yet at the same time praise acts of mercy and
benevolence; to honor those w h o capture cities, yet at the same time
believe in the doctrine of universal love; to improve arms and armies as
preparation against emergency, yet at the same time admire the flour-
ishes of the officials at the court; to depend on agriculture to enrich the
nation, yet at the same time encourage men of letters: . . . strong
government will not thus be gained. T h e state in times of peace feeds
the scholars and cavaliers, but w h e n difficulty arises it makes use of its
soldiers. Those w h o m it benefits are not those w h o m it uses, and those
whom it uses are not those w h o m it benefits . . . W h a t is today called
wisdom consists of subtle and speculative theories which even the
wisest have difficulty in understanding . . . N o w in ordering current
affairs, w h e n the most urgent needs are not met, one should not con-

45 Han Fei Tzu (d. 233 B.C.; chief theoretician of the Legalist school), Hon
Fei-tzu, Chap. 54; tr. W. K. Liao, The Complete Woiks of Han Fei Tzu, 2 vols.
(London, 1939-59), II, 328, modified here by D. Bodde.
40 Kuan-tzu, Chap. 45; tr. D. Bodde, in Fung Yu-lan, A History of Chinese
Philosophy, 2 vols. (Princeton, N.J.: Princeton University Press, 1952-53), I,
322, with slight changes here by D. Bodde. The Kuan-tzu, although traditionally
ascribed to the statesman Kuan Chung (d. 645 B.C.), is actually an eclectic
work by anonymous writers. This Legalist chapter probably dates from the
third century B.C.
z6 LAW IN IMPERIAL CHINA

cern oneself with what is of no immediate bearing . . . Therefore

subtle and speculative theories are no business of the people. 47
In his rule of a state, the sage does not rely on men doing good of
themselves, but uses them in such a way that they can do no wrong.
Within the frontiers, those who can be relied on to do good of them-
selves are not enough to be counted in tens, whereas if men be used so
as to do no wrong, the entire state may be equably administered. He
who rules makes use of the many while disregarding the few, and
hence he concerns himself not with virtue but with law ( fa ) ,48
When punishments are heavy, the people dare not transgress, and
therefore there will be no punishments.49
When a ruler wishes to prevent wickedness, he examines into the
correspondence between performance and title, words and work.
When a minister makes claims, the ruler gives him work according to
what he has claimed, but holds him wholly responsible for accomplish-
ment corresponding to this work. When the accomplishment corre-
sponds to the work, and the work corresponds to what the man has
claimed he could do, he is rewarded. If the accomplishment does not
correspond to the work, nor the work correspond to what the man has
claimed for himself, he is punished. Thus when ministers have made
great claims while their actual accomplishment is small, they are pun-
ished. This is not punishment because of the smallness of the accom-
plishment, but because the accomplishment is not equal to the name of
it. And when ministers have made small claims while the actual accom-
plishment is great, they are also punished. This is not because no pleas-
ure is taken in the larger accomplishment, but because it is not in
accord with the name given to it.50
In governing a state, the regulating of clear laws (fa) and establish-
ing of severe punishments ( hsing ) are done in order to save the masses
of the living from disorder, to get rid of calamities in the world, to in-
sure that the strong do not override the weak and the many do not op-
press the few, that the aged may complete their years and the young
and orphaned may attain maturity, that the border regions not be in-
vaded, that ruler and minister have mutual regard for each other and
father and son mutually support one another, and that there be none of

" Han Fei-tzu, Chap. 49; tr. Liao, II, 287-288, modified here by D. Bodde.
48 Han Fei-tzu, Chap. 50; tr. Liao, II, 306-307, modified here by D. Bodde.
" Shang chün shu, Chap. 18; tr. Duyvendak, p. 288. Although it is attributed
to the Legalist statesman Shang Yang (died 338 B.c.), it is actually a composite
work by anonymous Legalists, mostly of the third century B.C.
50 Han Fei-tzu, Chap. 7; tr. Liao, I, 48-49, modified here by D. Bodde. For

the rendition in the first sentence of the important Legalist term hsing-ming
(punishment and name) as "performance and title," see H. G. Creel, "The
Meaning of Hsing Ming," in Soren Egerod and Else Glahn, eds., Studia Serica
Bernhard Karlgren Dedicata (Copenhagen, 1959), pp. 199-211, esp. p. 205.
 B A S I C C O N C E P T S 27
the calamities of death, destruction, bonds and captivity. Such indeed
is the height of achievement.51

8. Legalist Triumph but Confucianization of Law

A reading of the Confucian and Legalist platforms should be

enough to tell us what happened. The dynamic and ruthlessly
efficient program of the Legalists, as adopted in Ch'in, helped
that state to triumph successively over its rivals and in 221 B.C. to
found the first universal Chinese empire. Under the new regime
the nobles and officials of the former states were taken away from
their territories and stripped of power. Their place was taken by a
centrally appointed, nonhereditary, salaried bureaucracy which
was to be the model for all dynastic governments from that time
onward until the founding of the Republic in 1912. The Legalist
law of Ch'in became the law of the entire empire. Finally, in 213
B.C., the Legalist program reached its logical climax with the no-
torious "Burning of the Books," expressly ordered by the govern-
ment to destroy the classical texts of antiquity, the writings of
the non-Legalist schools of thought, and the historical records of
former states other than Ch'in.
Yet the Legalist triumph was amazingly short-lived. In 210 B.C.
the founder of the Ch'in empire died, and within two years his
empire dissolved into rebellion and disorder. Out of the sub-
sequent civil war arose a new empire, that of Han (206 B . C . - A . D .
220), under which the Ch'in bureaucratic government was re-
established and elaborated. At the same time, however, in one of
the amazing reversals of history, Confucianism replaced Legalism
as the dominant ideology. Already by 100 B.C. Confucianism was
beginning to gain recognition as the orthodoxy of the state,
whereas Legalism was disappearing for all time as a separate
school.
However, the Confucianism which triumphed in Han times
was a highly eclectic thought system—one that borrowed ex-
tensively from its philosophical rivals. Because these rivals in-
cluded Legalism, the eclipse of Legalism as a recognized school
51 Han Fei-tzu, Chap. 14, tr. Liao, I, 124, modified here by D. Bodde.
28 LAW IN IMPERIAL CHINA

by no means meant the complete disappearance of Legalist ideas

and practices. On the contrary, Legalism continued to influence
the political and economic thinking of Han and later times,
probably a good deal more than has been traditionally supposed.
Such economic policies, for example, as the "ever-normal granary,"
various government efforts to equalize private holdings of land, or
governmental monopolies of salt, iron, and other products, all
probably owe as much or more to Legalism than they do to early
Confucianism. Recent study shows that the same may even be
true of what has traditionally been thought to be a peculiarly
Confucian institution: the civil service examination system used
in imperial times to recruit government personnel on the basis of
intellect rather than birth. 52
It would be strange, therefore, if Legalism did not leave a
lasting mark on law. Its influence probably explains, for example,
the continuing penal emphasis found in all the imperial codes,
and the resulting fact that their treatment even of administrative
and other noncriminal matters usually follows a standard for-
mula: "Anyone who does χ is to receive punishment y." 53 Or
again, the background of Legalism probably explains certain
important features of imperial judicial procedure: the non-
existence of private lawyers; the assumption (nowhere explicitly
stated but everywhere implied in the treatment of defendants)
that a suspect must be guilty unless and until he is proven inno-
cent; 54 or the legal use of torture ( within certain specified
limits) for extracting confession from suspects who stubbornly
refuse to admit guilt despite seemingly convincing evidence
against them. Still another idea which probably owes much to
Legalism is that of group responsibility (especially conspicuous

53 See Creel, "The Meaning of Η sing Ming," and H. G. Creel, "The Fa-Chia:

'Legalists' or 'Administrators'?" Bulletin of the Institute of History and Philology,

Academia Sinica, Extra Vol. 4 (Taipei, 1961), pp. 607-636, esp. pp. 632-634.
Professor Creel is continuing his research on this important topic.
53 See van der Sprenkel, p. 64.
54 This point is made by van Gulik, p. 56, where he comments: "This principle

is not based so much on harshness as on the idea that no really good citizen
will ever become involved with the law; even a completely innocent person
being falsely accused is guilty in so far that he is a party to a disturbance of
the peace in the district—which is an affront to the magistrate's administration."
After assessing all the factors, van Gulik concludes (p. 63): "All circumstances
considered, the old Chinese judicial system worked tolerably well."
 BASIC C O N C E P T S

in treason cases and the like). Here, however, Confucian em-

phasis on family and communal solidarity has probably also
contributed considerably. The earliest roots of the concept, in-
deed, may well go back to an early communal stage of Chinese
social thinking predating either Confucianism or Legalism.
Despite these and other probable survivals from Legalism, the
really spectacular phenomenon of imperial times is what has been
aptly termed the Confucianization of l a w — i n other words, the
incorporation of the spirit and sometimes of the actual provisions
of the Confucian li into the legal codes. This process got under
way during Han times only gradually and thereafter continued
over several centuries. By the enactment of the T'ang Code in
653, however, it had effectively closed the one-time breach
between li and fa. Customary morality (li) achieved official
status in the form of positive law (fa), or, to reverse the equation
and use another scholar's interpretation (see text above note 33),
positive law (fa) achieved moral status as the embodiment of
natural law (li). As T'ung-tsu Ch'ii rightly points out: "To study
the ancient Chinese law w e must compare the codes with the
books of li; only in this way can we trace its origin and real
meaning." 5 5
The reader is referred to Dr. Ch'ü's book for innumerable
illustrations of the truth of this statement. Here we can only
summarize the main directions of influence, illustrating each with
a few examples drawn from the Ch'ing Code of 1740, the final
product of some two thousand years of imperial legal tradition.

9. T h e Imperial C o d e s as Exemplifications of Li

Of all the differences between Legalist fa and Confucian li,

none is more basic than the universalism of the former ( its refusal
to make exceptions for particular individuals or groups) as
against the particularism of the latter (its insistence upon differ-
ing treatment according to individual rank, relationship, and
specific circumstance ). This particularism we find perpetuated in
the imperial codes along four major lines.
55 T'ung-tsu Ch'ii, Law and Society, p. 278. Dr. Ch'ii is the author of the term,
"Confucianization of law."
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