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China THE LEGAL SYSTEM
The Imperial Era
Contemporary social control is rooted in the Confucian past.
The teachings of Confucius have had an enduring effect on Chinese
life and have provided the basis for the social order through much
of the country's history. Confucians believed in the fundamental
goodness of man and advocated rule by moral persuasion in
accordance with the concept of li (propriety), a set of
generally accepted social values or norms of behavior. Li
was enforced by society rather than by courts. Education was
considered the key ingredient for maintaining order, and codes of
law were intended only to supplement li, not to replace it
(see The Hundred Schools of Thought
, ch. 1;
Traditional Society and Culture
, ch. 3).
Confucians held that codified law was inadequate to provide
meaningful guidance for the entire panorama of human activity, but
they were not against using laws to control the most unruly
elements in the society. The first criminal code was promulgated
sometime between 455 and 395 B.C. There were also civil statutes,
mostly concerned with land transactions.
Legalism, a competing school of thought during the Warring
States period (475-221 B.C.), maintained that man was by nature
evil and had to be controlled by strict rules of law and uniform
justice. Legalist philosophy had its greatest impact during the
first imperial dynasty, the Qin (221-207 B.C.; see
The Imperial Era
, ch. 1).
The Han dynasty (206 B.C.-A.D. 220) retained the basic legal
system established under the Qin but modified some of the harsher
aspects in line with the Confucian philosophy of social control
based on ethical and moral persuasion. Most legal professionals
were not lawyers but generalists trained in philosophy and
literature. The local, classically trained, Confucian gentry played
a crucial role as arbiters and handled all but the most serious
local disputes.
This basic legal philosophy remained in effect for most of the
imperial era. The criminal code was not comprehensive and often not
written down, which left magistrates great flexibility during
trials. The accused had no rights and relied on the mercy of the
court; defendants were tortured to obtain confessions and often
served long jail terms while awaiting trial. A court appearance, at
minimum, resulted in loss of face, and the people were reluctant
and afraid to use the courts. Rulers did little to make the courts
more appealing, for if they stressed rule by law, they weakened
their own moral influence.
In the final years of the Qing dynasty (1644-1911), reform
advocates in the government implemented certain aspects of the
modernized Japanese legal system, itself originally based on German
judicial precedents
(see The Hundred Days' Reform and the Aftermath
, ch. 1). These efforts were short-lived and largely
ineffective.
Data as of July 1987
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