Ancient Chinese law inspiration from Xia dynasty to Tang dynasty
In Xia and Shang dynasty, the ancient Chinese legal consciousness was generated by the awareness with the divine power and rule with blood heritage, as one of the prescriptive conduct, transformed prehistorical matriarchic society into the matriarchic society. This divine power blends with the rulers power and will in regulation, which leads to the first chinses slavery model, forming the law for such prescriptive conduct, functioning on the law for punishment for such disobeying.
Then when time pass into the Zhou dynasty
The Power has been cautiously treated since the power abuse has been occurred in the previous dynasties, leads to the ruining of the reign. Hence one of the middle transitions has been created as the one measurement and structuration of the will of the reign and the power of the divine, called ‘礼’.
The ‘礼’ occurred in this time formed the purpose of the measurement and testimony. How this facilitation has been formed by externalized matters? ‘礼’ is associated with the ancient concept of virtue, which differentiated from the concept of the virtue as ‘礼’ in ‘儒’.
Hence the ‘礼’ here emphasize 3 parts:
Natural mythical virtue formed by the mythical centralization and secularization in Shang dynasty with its relative priesthood concerning on the orders of the heaven, the power, purity and the divinity.
Social obligation for taking the heritage of the blood tie
Taking care for the people in his reign
Hence this externalized structure limited the kings own ego on the power of the heaven orders, as well as becoming new structural prescriptive conduct for social class division, that is under this slavery rule, different class has been limited into their deeds, prescribed in such virtue between the heavenly power and the man made blood tie value.
Then those feedback measured by ‘礼’ went back to the custom of the virtue itself forming a special circulation as the source of the ‘礼‘， through this , the legal terms has been created through the priority and proportion of the prescriptive conduct in its combination between heavenly priesthood and the blood tie imposed forceful value.
In this level, the law is no longer only way to prevent the disobedience through the power, but a facilitated virtue which feeds its controlling custom to form a value derived chain between the initial social respect and blood tie reign. The ruler as well as being ruled subjected to such intelligent of the virtue, called ‘礼’, formed a forceful value conducted social order by such value, then the law becomes the complementary part for punishment for disobeying such forceful value.
Hence education was strongly encouraged to achieve this value conformity from the prescriptive blood-time and patriarchal conduct. hence there existed the initial combination between control of the state and the heritage of the blood time priority, through ‘礼’ intelligently in achieving the law subjected to guidance for value guidance in an apparent civilized level, that is the state order is determined by heavenly priesthood and blood tie privilege and with the law to hold it transgressor. From this system the blood-tie became the nature rule under its combination with the mythical power and the virtue he imposed for value control. That value makes the social division and subjected to certain deeds on each class under such intelligence.
The virtue mentioned here is different from the virtue mentioned in the Greek, since the virtue in China is power blended rather than a merely metaphysical or the ideal of the muse. In china such power abides with virtue in the ancient time becomes the manifestation in half divine worth and half for class division.
Hence the first form of Chinese law custom was not derived from the intelligent recognition or philosophy themselves but a manner of avoidance and punishment for disobeying. The intelligence of the legal autonomy has not been achieved until the time after Han dynasty. Hence ancient Chinese might be the civilization possessed the wisdom of the prescriptive intelligence in value conduct and class divisions. And then law in early time turn to be the character of the criminology. Due to this reason, Chinese civil has not been lowly developed until after the Han dynasty as well.
‘礼’ was determined from altar culture and secularised in Shang dynasty through mythical centralization, then it became a class division and measurement in Zhou dynasty which extended it into state level . Still this time, ‘礼’ is different from the concept of the ‘礼’ in Han with academy ‘儒’.
In Zhou dynasty, the ‘礼’ diffused into more derived social norms, as lower existing of the Tao of the norms, and the ruling power handle the altar priesthood as Tao of origin, and virtue ‘礼’ becomes the mutual transition, feedback as conductive intelligence between the higher end and the lower end.
Since through the education, such virtue would anchor the derived social norms. Hence we might treat this ‘礼’ as the custom prescription and conduct in value imposed by the blood tie, with higher end binding with priesthood.
Hence the initial ideology of criminology formed in punishment for the manner towards what is out of the ‘礼’ in earlier history of ancient China. Hence its historical function might be laid on the aiming for chaos of the social orders and the chaos of the conduct of blood tie with power in their binding priesthood.
Hence ‘礼’ could be treated as the second hand, towards the power of higher end, for the conduct of the norms and the imposing power for conformity in such prescribed ancestry value conformity. Hence by ‘礼’， there is the trace to diffused tribal origin, but with abuse in blood tie ego due to the special Chinese legal awareness in this ancient time.
During the time, the initial contract consciousness has been formed through the trade and learning system, but did not yields into any coded law in civil level. King still held the judgement power in his direct judge to no matter civil or criminal issue.
However, in the law states era, this social order has been strongly collapsed by the increasing productivity and trade, hence the public land policy would no longer satisfy the new value and orders yielded in the trade and famer economy. Hence in ancient China the efficiency of the production secretly changed the law, and leading to the collapsing of the ancient ‘礼’ in Zhou dynasty.
In Chinese legal development, the law lacks the insight of the righteousness for yielding the structural society, but as serving the changing power, this leads to its initial weakness in civil awareness in law. Hence in traditional law in ancient China, the change of the law stands for the change of the power, rather than in changing the law by changing the management of the power. This intelligence has not been developed until it was in the Tang dynasty.
In addition, the fall of the social order of ‘礼’ in Zhou dynasty, stands for the emerging of the farmer class, land tax and feudalism, which focused on tax, agriculture, using the military ranking replaced the privileged of the blood ties.
During time of the spring & autumn and warring states
There came up 4 main stream academies in serving the new theory towards the coming of land lords’ rising, like what I said in ancient China, the law and theories serves the changing power.
Academy of Ru ‘儒’
It was generated to embrace the new rising of the land lords’ class. Confucius launched his new idea of ‘礼’， which is different from the ‘礼’ in early time. Here the ‘礼’ have applied on direct social norms and its direct secularization. The states’ politic as norms which might indicate that the norms and context of ‘礼’ has been developed rather than custom in previous dynasty, conjunct directly with politics at its prescriptive conduct come as existence, this is different from the ‘礼’ from the previous aristocracy by departing the mythical attributes in ‘礼’ and its contextual secularization.
Hence here Confucius‘‘礼’ have indicate prescribed value and conduct in norms directly for social class division, which might exempt the ‘礼’ from original priesthood binding in power and its mythical function in the royalty blood tie. It becomes more and more as the forceful social tool rather than a conductive intelligence between the higher end and lower end regards to the metaphysics and power balance, while it becomes more and more concerned on the lower ends.
Under this situation, the law has been set as according to the sequence of the priority in the value of the ‘礼’ in ru, which formed permissive insight yielded the criminal judgement for transgression of such lower end applied value through the vision of the blood-tie.
Differentiated from the Zhou, the facilitation of the ‘礼’ is no more the testament or proportion for political righteousness, but instead transferred into the philosophical base, internalised the humanised vision in ‘great love’ and ‘mercy’ with the blood lie tradition.
That is the power has been philosophized into some Taoist metaphysical ideal into direct social class diversification rather than in priesthood concretely. Indeed, still in this stage, social class still can not freely form any value from the facts, but under the forceful value from the ancestor patriarchic model.
Hence Ru ‘儒’ might advocate the prescriptive conduct based not on secularized sequence of social division, which continues the structural vale from heritage described as above, but rather facilitated himself for norms application legal creation under such philosophized power, which transfer from the priesthood binding power (God- king) in the stage of the philosophised power (social order concern by reason) but still sticking on the blood tie value.
This view would strongly resist the development of the autonomy of the law and civil social autonomy in class division mechanically.
Hence the law is departed from the its measure of the nature, becoming one of the complementary manner regards to the prescriptive conduct, while the value of those conduct has not been biding with the law itself.
Academic Tao
This branch was opposed man made social order, and its overwhelming attachment on virtue based on virtue developed with ancestry line on the social division, neither did it emphasize on the facilitation of the law in the human affair as precise control. Instead it embraces the idea of the higher law with metaphysical understanding and simple law for regulation.
2. Academic Mo
This branch emphasizes the law, based on the measurement and conduct of one’s will and intentions. Hence the law has been treated as the one that is attributed to righteousness as means through weight the benefit and harm. This ideal pushes on how the righteousness of the means of the law could be utilized in the social justice by right and fault in conceptual division.
3.Academy Fa
The principle of this branch has been strongly utilized in Qin’s policy and laws, we would sum up later
From all those points views of the academy of the law in land owner power rising era, the law and policy in china is a timely issue, and the power is relatively constant, hence the policy and law rising due to different powers rising, rather than there existed a essence of the philosophical guidance and methodology in law developed in early time of ancient China towards structure of power. the mutability was their serving object in law timely until the later time when it was Tang dynasty, the law yielded the initial bureaucratic system for administration.
One of the scholars who held some similar idea with western legal awareness in ancient time might be Deng xi (邓析) regards that ‘the law terminates affairs; The gradual intelligence of law increasing in Qin and Han era but still lacks the civil concern and codes.
There yielded more and more contractual and legal codes through rising efficiency of production and land owner, which yields more and more interpretation of the law and the declare the content of the private law. By rearranging the power of the land owner and military honours, in order to replace the previous aristocracy’s social status and privilege with state, in order to transfer the power to the proper service of the law it might serve.
This might transfer the power from the divinity towards the commerce, military, land, tax and gradually form its ancient empire ideology under the academy of the Ru ‘儒’
Those were all changes occurred in the time just before the Qin dynasty.
Qin dynasty
It was the dynasty launched the legal concern from Fa’s theory. Interpretation and recording of the law as the manner has been authorised into precise terms.
It turned the will of the emperor as the highest law, rather than the will of the emperor to assent the law according to his power.
Qin strongly emphasize on the criminology with precise law and its measures on the civil level without clear law. This leads to a poor development in Civil development. In contract, the criminal law has far reached to the harm connected with state with pushing reason to execute its punishment; the punishment was severe and cruel.
Then its powerful centralization formed the professional structural official for operation. More department has been established for the structural legal operation and power division abides to law to punished the disobedience.
Even the injury would pushed by forceful reason to connect it with the state correlation to receive the physical punishment as the non-conformity.
The operation is under was under the legal description, but operational power was limited under each legal terms with authority. Except that its legal procedure, court manner, executive, legal acquisition might be advanced due to its precise control with thousands of the laws and judgement cautiously with strong focus on records.
Han dynasty
In the first stage, it focused on combination between the Taoism and Mo, fa insight in legal establishment, formed the special view in conduct though one’s desire to reach the best outcome abides with simple law.
Through their law and their transcendence which yields greater liberty and fortune accumulation.
In the second stage, academy Ru ‘儒’ becomes mainstream conduct for legal and policy development, formed the initial expansive emperor ideology, from ancestor value secularization with law development for minorities’ habitation. Hence the ancestry conduct becomes the core of such controlling power of the imposing expansive social order, even with the philosophized ‘mercy’ and ‘universal love’, still it was an blood tie value.
During this era the legal consciousness has been transferred from forceful criminal punishment into the stage for negotiation and the contract for such norms establishment, with liberated attitude to deliver the cruel law from descendant.
Many laws are settled as regulation of the purpose of the integration and easy to use, hence there might not exist the concept of the ‘rule of the law’ itself.
There yielded some development for the legal development through new theory establishment.
‘九章律’ laid the base in the civil case and coded law.
‘傍章律’ laid another foundation towards ‘礼’ and the regulation between palace and the emperor, namely the orders in higher ruling class.
‘朝律’ laid the foundation of the palace security system and regulation towards the assembly and celebration in the palace.
The regulations has been very sufficiently laid but lacks the coded manner as integration since the archives was collected and gathered through different time through challenges in different reign in this dynasty with their legal insertions.
In this time, the statue of the king could recall, cancel or replace the law.
The concept of the ‘比’ is the ideology of precedence or the typical preferred precedence. The legal system n Han dynasty stands for the completed transfer from the slavery society to the Feudalism with the liberation of the serfdom. Social settlement has been treated as the main purpose in political strategy.
In the Han dynasty, the local judicial authority enjoyed strong self-sufficiency in dealing with the cases themselves. Also they have been authorised to execute the death punishment (ask for permissive performance).
But the right of the accuse engaged in the limited power for the lower class, who could hardly reach their appeal towards the higher class, such as the slave could not accuse their master. Still the accuse power among the lower class was weak.
The law codes of the ‘spring & autumn’ era is laid on the sentence, based on intention and heart rather than through facts and will in different level, hence this sort of the conduct might chase one returning the prescriptive sequence of the social value in class division. Hence cease the blood-tie tradition from direct influence on the value would cease its direct function social class division.
Sui and Tang dynasty
In this era the law codes reached to the southern Asian, southern eastern Asian, such as Korea, Japan and the Vietnam.
In the time of sui and Tang dynasty, the majority Han race and other racial elite participated the authoritative operation of the feudalism, leading a legal revolution forming a relative integrated law.
‘开皇律’ laid the foundation of the law in Tang dynasty, enlightened the criminal punishment, it enjoyed reputation as the explicit codes with wide coverage.
The evil deeds have been written down as the descriptive conduct into legal regulation. it also emphasized the priority and privilege of the high power with their social status.
In the Tang dynasty the legal direction yields to strong evolution in order to achieve relative conservative attitude towards power and prevention its abuse as well as its correlated punishment.
In this era, there gradually forms the combination between the ‘礼’ and the criminology, which abolished previous punishment system. It was aiming at the legislation in a steady and stable manner with simple codes. Also the cautious attitude has been triggered regards to the law making and new legislation.
‘唐六典’ enable of the law of the administration departed from the criminology, which formed a special department in autonomy on its legal facilitation.
New evolution also has been laid in the compensational cases in crime redeem, such, one might disband for his social status, title of the aristocracy to redeem relative amount of the claim in due. This brought strong liberation in theory concerning on the balance between the benefit and harm through this transition.
One of the law forms legal description towards the working position and responsibility, like Roma, with cautious consideration in one’s political position and official control.
The well established information system made the high efficiency on documents distribution variously in different location of the reign.
In addition, the law forms the severe punishment towards one of the specific crime as theft.
There is division in crime regards the crime ascribed to the political or career position by breaking its prescribed legal description objectively. Which would be differentiated from the what is considered as the private tied intention abides it.
In the combination of the crime one committed, it was regarded that the severe one would be picked without double counted towards them.
Tang’s law respected different racial custom regards to the trade and international commerce.
In its civil concerns the evolution of the civil law laid in:
Contractual norms in trade
Leasing regulation
Leasing regulation contains the leasing that is either without interest or with interest.
Marriage and family regulation with conductive and permissive norms.
Much of the law aims at the legal contract and tax on feudalism.
In the operational and the executive power, the layers of documentary bureaucracy form the filter for controlling efficient and distinguishing manner for documents and information facilitation.
‘三省’ forms initial shapes of such bureaucratic system, for 3 divided power:
Legislation, presented with King
executive power
testament of the legislation feedback collection
‘六部’ stands for 6 divisions for the specific administration categories with authority.
Since from the era of Tang dynasty, the tradition of the ‘礼’, which started to present into the legislation in civil level, which has been freed through independence of the administrative law, formed the first bureaucratic system abides with the legal affection.
From the bureaucracy administrative perspective, it combined the ancient Chinese outstanding criminal codes from past and the civil legislation in the new level.
‘法’ and ‘儒’ academies achieved sort of balance under such initiation of the bureaucratic establishment.
Then the law codes carried such ideology affecting the korea, Japan and the Vitnam.
As towards the death penalty, it should be assented by emperor for permission of executive .
Then the judicial power divided into 3:
Highest judging department
Executive power
Supervisory department