Legal Dialectics: The Past, Present, and Future of Chinese Law

Author: Liang Zhiping
Publisher:
Publication Date: 2002-11-01
Features: "Law and Justice: The Past, Present, and Future of Chinese Law" is the second printing since its first edition in 1992. During the reprinting, the author made minor technical corrections to the original book.
Excerpt:
6. Ancient Law: Cultural Differences and the Natural Evolution of Traditional Human Cultures generally undergo similar stages. For example, from Paleolithic and Neolithic cultures to Bronze and Iron Age cultures. This statement does not deny the diversity of human cultures. While both ancient China and Greece had Bronze Age cultures, they were vastly different—this is similarity within difference. British historian Arnold J. Toynbee believed that civilizations can only grow in models of challenge and response, and the success or failure of such responses can determine a civilization's fate. Extending this theory slightly, one could argue that the methods of challenge and response will determine the style of a civilization. The differences in customs, rituals, religions, and laws among ancient peoples can likely be explained by this theory. Early humans faced direct challenges primarily from nature. Differences in geography, climate, and other natural environments were often decisive. The beliefs of specific groups, their views on the heavens and earth, and their unique behavioral patterns initially depended on these naturally generated differences. Historians often divide riverine civilizations from maritime civilizations based on this. Later, as civilizations grew, the challenges faced by humans became more social in nature, and their concepts and awareness were thus more influenced by social factors.
In 587 BCE, the Jewish people were exiled to Babylon and lived there for nearly 50 years. Without this history, it is unlikely we would have the "Old Testament" we see today, nor might Christianity and Christian civilization have become a reality. Many such events in history can be cited, such as the Great Migration of peoples and the fate of the Roman Empire, or the cultural character of the Han Chinese shaped by foreign invasions, and so on. The formation and differences in ancient legal concepts may also be explained in a similar way. While ancient legal phenomena shared some similarities or even commonalities, they were just as varied as ancient civilizations—Jewish, Babylonian, Egyptian, Greek-Roman, Indian, and Chinese laws were all distinct. Even by examining the laws of ancient China and Greece-Rome, which we are more familiar with, we can gain some thought-provoking insights.
From an etymological perspective, the Chinese character "" (fǎ) has a long history, but it was only during the pre-Qin era that it became popularly used to refer to a specific social phenomenon. Before that, while legal phenomena did exist, they were not referred to as "." Instead, another character was used to denote this concept: (xíng). The general meaning of is well understood, but in ancient times, its meaning was more specialized and narrower than it is today. Mr. Lü Simian wrote in A History of the Pre-Qin Period: "The original purpose of was to deal with foreign peoples. The concept of in ancient times was different from that today. The Han people often said, 'A person who has been punished cannot be restored to their former status,' or 'A person who has been executed cannot be restored to their former status.' This meant that must involve a physical separation of the body, referring specifically to corporal punishment and capital punishment, such as the five punishments recorded in the Lü Xing: tattooing, castration, amputation of the foot, castration, and decapitation. Later concepts like hard labor, exile, or imprisonment were merely 'punishments' and could not be called '.'" In other words, at that time, specifically referred to physical punishments and executions, such as the five punishments recorded in the Lü Xing: tattooing, castration, amputation of the foot, castration, and decapitation. Punishments like hard labor, exile, or imprisonment were considered "punishments" but not "." Research shows that the formation of this linguistic phenomenon is related to the early historical development of China and cannot be simply attributed to convention.