- All of China's imperial dynasties worked towards setting
up a uniform legal system within the boundaries of their
regimes, and within this framework they sought to produce
a detailed statutory code. The first known statutory code
came about even before Imperialism; it comprised an anthology
drafted by Shang Yang in the Chin province in 338 B. C.
E. Similar codes were to spring up during the course of
the various empires, yet these specific statutory codes,
although they continued to influence one dynasty after another,
were not wholly preserved. The Code that survived, that
held sway, and that continued to apply, at least partially,
right until the end of the Imperial era (in 1911 C. E) was
that of the T'ang dynasty. This Code was the most detailed
of all, and there is a reason for its thoroughness. The
reason stems from the Code's reliance on the philosophy
of Dong Zhongshu (who lived during the second century B.
C. E.) which philosophy had already been expounded upon
in China during the Han Dynastic regime. This philosophy
assumes that nature and man make up one holistic unity and
are so interconnected to the extent that man's deeds have
a direct bearing upon the course of nature. Completing this
holistic chain is the emperor whose every action has a profound
impact on the order of things both in regards to man and
in regards to nature. This philosophy, then, lends weight
to His Imperial Highness's elevated stature, and at the
same time immeasurably strengthens his grasp on power. This
is especially so since any harm attaching to him would be
considered as dangerously threatening the world order, which
would consequently bring about terrible disasters that ordinary
man would find impossible to withstand. According to theory,
there are five forces within the above mentioned holistic
system that all represent the same side of the equation
(i.e. the sun, man, Imperial kindness, spring, and summer),
and for each the theory provides an opposing force that
operates against it (Operating against the sun, then, is
the moon, against man- woman, against Imperial kindness-
the death penalty, against spring- autumn, and against summer-
winter) The core of this holistic system is based on the
number five. There are five different colors, and five different
paths (the middle one is in fact the fifth). Any transgression
committed by man negatively alters the universal holistic
balance, and therefore punishment must immediately follow
in order to repair the damage and to restore the equilibrium.
An overly harsh punishment has the same detrimental effect
as does a laxly dealt with or, unpunished crime. The emperor's
task is to see to it that everyone is appropriately punished
so that the universe remains evenly balanced. It is therefore
vital that the judge administers the punishment in exact
accordance with the provisions of the Code that has been
determined, and drafted, by the lawmaking emperor. In this
way, the whole empire will have exactly the same punitive
systems. In order to achieve the abovementioned balance,
anyone falsely accusing another on trumped up charges, receives
the exact same punishment that would have been meted out
to the wrongly accused. Admitting theft and subsequently
returning the stolen goods is enough to restore a breach
in the equilibrium that was caused as a result of the theft,
to the extent that the necessity to punish is rendered redundant.
This is especially the case since the only aim of punishment
is to correct an imbalance. According to this system, the
emperor's status is elevated above all else when it comes
to acting as the final link that joins man to the other
natural worlds. It follows, then, that a transgression committed
against the Emperor and his household is considered to be
the severest of all, binding the law enforcer to impose
punishment upon the whole family of the accused. It follows
too that procedural defenses that are, in the ordinary course
of events, open to all accused, are inadmissible in this
situation. Looked at from this context the Emperor's regime
is safely ensconced because of the vital need to have a
government that correctly and accurately balances all the
workings of nature. To further this goal it was decided
to set up an institution of watchdogs who would supervise
those connected with balance achievement, including, amongst
others, the judiciary. A judge, then, who did not perform
these prescribed duties in a meticulous manner, was duly
punished. The distance between this outlook and one which
considers China to be positioned in the centre of the universe
is indeed very small. China is at the centre because it
balances the whole world, including nature and humankind.
China is then entrusted with a great responsibility towards
the world, most of it being borne by its leader, the emperor.
Therefore the legal system in China carries crucial weight
as does the system of law enforcement. Someone who refuses
to accept upon himself the authority of the legal system
and by extension the authority of the responsible Imperial
government shows himself to be willfully boorish, lacking
any semblance of culture. The Chinese statutory Code later
acted as a model for the legal systems that were to arise
in Japan, Korea, and even Vietnam. This type of statutory
system borrowed principles from Confucian philosophy. One
may speculate that one of the reasons for the heavy Chinese
influence on its surroundings, has to with the fact, as
has already been stated, that there was an acknowledgement
that Chinese enlightenment arose out of the fact that one
of its key components was Confucian philosophy, and that
the prevailing and successful system of law and order that
had been achieved was made possible through assimilating
principles of this philosophical doctrine. In light of the
stability that ensued as the result of the rule of law,
which every Chinese person quickly learned to respect, the
emperors inserted extra principles into the criminal and
civil code that were to strengthen the Imperial regime,
and that were based chiefly upon Confucian philosophy, a
philosophy that was already proclaimed to be legally binding
at the time of the Han Dynasty. The latter applied both
the criminal code and the Confucian system to all extra
territories that fell under the jurisdiction of members
of its dynasty, but it was the Confucian system that on
its own acted as an effective and important toll of government.
The Confucian system obligates its adherents to show respect
to one's father or master on the part of the son and the
servant; it contains a set of obligations more than a set
of rights, a disciplinary system, and other basic principles
that enshrine social stability and that prevent the subversion
of the dividing lines of authority and, of the distinctions
within the economic and ruling classes. These principles
were absolutely vital for the Chinese emperors and for prolonging
their regime. It is therefore no wonder that the Code of
Laws drafted during the period of the T'ang Code managed
to survive, virtually unchanged, for a period close on 1300
years. If these meticulously set- out laws were responsible
for maintaining the world's equilibrium, no one could easily
go and change them. Rather they needed to be preserved in
order to ward off any harm affecting the world's balance,
which could only lead to catastrophic results. It is possible
to view this whole scheme, including the belief that the
emperor played the role of balancing the forces of nature,
as a religion, and from this perspective it is the emperor
who assumes the highest authority within this religion.
This is a type of religion that tolerates and accepts those
other religions that do not oppose nor undermine it, including
the Chinese folk religion with its gods and its rituals
that celebrate its forefathers, namely: Daoism, Confucianism,
and Buddhism. The path to the judiciary was paved with academic
scholarship and examination. While it may have been the
case that other administrative jobs did not require admission
tests, in order to be a judge one did have to undergo a
series of tests. The very fact that judges had to pass tests
in order to be accepted leads one to conclude that it was
one of the few government positions that was open to those
who came from classes that were ranked on a lower peg than
the upper classes, and it was therefore one of the few ways
in which a lowly ranked individual could gain promotion
to a higher class. The local judge was also the government
administrator, and the collector of taxes; in effect the
judge performed all duties of government. In order to be
accepted into the judiciary one had to be equipped with
a thorough knowledge of the law. At the same time a judge
was answerable to the government supervisors and was not
immune to their punishment if it was discovered that he
was not exacting in his judgment. This, because of the view
pertaining then that considered meticulousness in sentencing
critical for the continued existence of nature. Against
this backdrop, and in an environment where Chinese culture
was on the rise, an increasing number of people within Imperial
China began studying and delving into literature, poetry,
art, and trade, and during the period of the T'ang dynasty,
few even began to study law. The emperor was legislator,
Chief Justice and head of the executive, and was therefore
bestowed with the untrammeled authority to lighten or to
increase the punishment that had already been imposed- and
from this perspective he was the only individual who was
unrestricted by the statutory laws. The belief in Chinese
philosophy was so powerful that the overseers, whose duty
it was to supervise the administration and the judiciary
and to thus order to restore balance to the world, in furtherance
of their emperor's commandment, were on more than one occasion
during their work so absorbed in their worand so determined
to recognize and to fulfill their ideal that they denounced
the policies of the emperor, even though they were well
aware that such a course of action could lead to their decapitation,
and in fact it often did. It is possible to infer from this,
that the philosophy that led to the establishment of the
regime in China succeeded in implanting itself into the
ordinary Chinese in a very strong way. The great Chinese
empire required that their ruling class remain large but
in order to check abuses of the system, there were those
in the royal courtyard whose job it was to alert the emperor
to those cases that required that the penalty meted out
be lightened. Nonetheless in some aspects the regime was
concentrated among the very few making it impossible to
carry out any death sentence without express permission
from His Majesty. The Imperial Chinese statutory laws entrenched
the advantageous position of functionaries of the state,
including those who had worked for the state in the past,
and including others who held titles of nobility that they
had inherited from their ancestors (hereafter these three
categories will be collectively referred to as "officers"
and will also include judges). Transgressions against the
emperor and his government, against the state or against
the religion as it was practiced within the family (for
example- transgressing mourning rites after the death of
a father or mother) were considered the most severe of all
crimes, and when such a crime included rebelling against
the emperor or even planning such a rebellion, a collective
punishment was imposed upon all family members of the offender
(and for these purposes any accomplice was considered on
par with the actual offender). Within this framework- the
more severe transgressions carried with them the death penalty
for all male relatives of the offender even if they had
no knowledge of the plan to commit a crime, while the more
distant relatives would be exiled and their property forcibly
removed. In these matters a wide variety of punishments
could be imposed, but the general trend was as described
immediately above. Owing to the fact that the judges were
public servants who were subordinates of the state's interests
and of Imperial edicts, they concentrated all their efforts
on adjudicating matters that had to do with rules pertaining
to the criminal statutory code and to the stability of the
regime, trying as much as possible to avoid dealing with
commercial, or private disputes, that had nothing to do
with structure of the family hierarchy or with the discipline
expected of a servant towards his master. Consequently laws
pertaining to the commercial/ private sphere were shoved
into a corner. By now the results of such an attitude are
well known as may be witnessed in contemporary Japan, which
imported wholesale this type of attitude from China together
with the latter's criminal code and general legal system.
In Japan, the result has been that people have learnt that
when it comes to their own affairs they must be willing
to solve their problems through the art of compromise. They
very rarely, then, deal with private and commercial matters
in the courtroom; to the extent that even in this day and
age the number of lawyers remains very small. As regards
to China during the T'ang dynasty, and as it would appear,
during the whole Imperial period, though commerce was very
advanced and though there were courts specifically authorized
to adjudicate commercial disputes, the prevailing trend
was to solve these disputes without having resort to court
trials; in fact it was considered beyond the pale to pressure
judges into arbitrating commercial matters that they never
had an interest in dealing with in the first place. As regards
to personal legal status, those seven years of age and younger,
and those who have reached their ninetieth year and over
were not considered fit to be punished. However for the
purposes of carrying out collective punishment their age
was no bar to being included with the rest of those condemned.
Within a framework where the trend was to strengthen the
control exerted by the fathers and by the oldest in the
family, and against the backdrop of encouraging discipline
within the nuclear family, it made sense that while a son
who struck his father would be guilty of a serious offence,
the father who struck his son, or the man who beat his wife
or his concubine was not guilty of anything; in fact there
were detailed rules surrounding this matter, which basically
laid forth that the more distant the blood relative(in accordance
with the five levels of mourning rites, which determined
the proximity in blood relationship) the less the disparity
in punishments for reciprocal acts committed by each party.
To determine when discrepancies in punishment were applicable
a special table was annexed to the code so that a network
of gross inequality was de facto created when it came to
the laws of domestic injuries. This was commensurate with
the basic principles enunciated by Confucius in respect
of the respect family members need to show towards their
parents and older relatives. These principles were interpreted
so that they came to include the relationship between supervisor
and underling, and falling within this broad definition,
within the confines of a monastery, was the relationship
between teacher and disciple. In a similar vein respect
had to be displayed by those on the lower rung of the regime's
bureaucratic ladder towards those positioned a few steps
higher. These rules, as they applied to the various scenarios
outlined above, were not exclusively confined to crimes
of assault but also covered other offences, such as theft
and robbery. The trend of the regime to place the emperor's
honour above the ideal of preserving the nuclear family,
may be illustrated by the fact that so long as the emperor's
honour is not impeached, a family member may hide the fact
that another family member has committed an offence, and
is even allowed to warn the said transgressor that the state
has opened an enquiry based on suspicions that he is involved
in criminal wrongdoing. In this way family unity is encouraged
and family loyalty is strengthened; it follows then that
if family members conspire jointly to commit a crime, only
the eldest male member, never female, will be brought to
trial. Stealing within the family was dealt with very leniently
especially if there was a very close relationship between
the thief and the person who had his goods stolen. Accordingly,
a son who stole from his father would not be punished unless
the amount exceeded a certain minimum, and even in that
event the punishment would be very light. What in fact did
happen to the universe's equilibrium, when a person was
found to be guilty by law, and so paid his fine, and only
afterwards it was discovered that his conviction was not
legally justified? How then would the universe adjust its
equilibrium? How would it return to the situation where
everything was weighted equally? One thing was clear from
the very beginning: if an execution did wrongly take place,
the universe was forced to absorb the shock inflicted to
its system, and this was not only because of the impossibility
of the Chinese legal system restoring life into the wrongly
condemned man, but also because the emperor was never mistaken,
and the death penalty was never carried out without express
permission of the emperor; so since the emperor was not
wrong, a shock had not really taken place, and there was
no need for him to repair anything. In all other cases,
there would be an acknowledgement that an injustice had
occurred and the so called offender would then be compensated
since he had not, in fact, committed the offence he was
accused of. How was the culpability of an accused proven?
The prosaic answer is quite simple: The accused would be
tortured until he would either confess his guilt or until
it would become obvious that he was not going to admit anything.
Accompanying this physical torture was a verbal interrogation,
both of which were conducted in exact accordance with what
was writt and decreed in the law books in relation to the
type of felony with which the accused was charged. For every
type of crime there was a specific kind and amount of torture
that could be legally administered. If an accused was tortured
but refused to confess, the torturers would turn their attention
to the plaintiff and would start investigating and torturing
him, and if, as a result, this plaintiff would admit that
he made a false accusation against the accused, the law
decrees that he receives the same punishment that would
have been in store for the accused, had the charges been
proven correct. Nonetheless, if the plaintiff in the case
held an important position in the regime or if he was a
man of the cloth, and it turned out that he had charged
the accused with a false allegation, his punishment, as
mentioned earlier, would not be the same as that that would
have been in store for the accused; instead through a certain
calculation system the punishment would either take the
form of a demotion in rank or alternatively a redemption
fee would be paid in place of the physical punishment. This
favorable treatment would also apply to the investigative
stage where the office holder or clergyman would not be
tortured during questioning, but rather witnesses would
have to be sought, and their guilt would only be considered
a proven fact after at least three witnesses were found
that would testify against them. In this way the principle
of equilibrium integral to Chinese philosophy finds its
practical application. One cannot confuse the situation
where one admits guilt as a result of being tortured, and
so has punishment imposed upon him, with the situation where
one admits guilt freely and at one's own initiative, and
where one returns that which was taken illegally, in which
case the guilt is rescinded, on condition - obviously- that
the offence is not one of accepting bribes, or any other
similar felony where there can be no absolution for simply
confessing the crime and returning the goods. How was it
that the Chinese accepted such gross disparities being incorporated
into the Code that was drafted by their emperor? How did
they tolerate discrimination based on one's position and
on one's status? Buried in the answer to these questions
is the great secret of the Chinese system. Since the emperor
assumed the pseudo- Divine role of achieving equilibrium
between nature and humanity, and since it was he alone who
knew how to manage this dangerous and finely tuned business
of maintaining balance, a balance that has been achieved
through the cumulative effort of generations, proving that
it was exclusively the imperial system that worked, and
which therefore rendered any other person powerless to prevent
any great disaster that may occur should the emperor for
one moment cease his holy work of achieving balance, the
Chinese accepted his judicial decisions and methods. The
alternative would have been to rebel against His Imperial
Majesty with the attendant risks of changing the course
of heaven and earth. The Chinese were always very fearful
of this risk materializing. The price for such fear: complete
acceptance of imperial justice and its methods of implementation.
Certainly one may say- and with full justification- that
Confucian values, both in relation to the myth surrounding
the emperor's role in achieving balance in nature and in
relation to the statutory books, had laid so much stress
on order and hierarchy within the family and within society
s that they had became integral elements within the prevailing
philosophy so that they were accepted as part of the natural
order. The Confucian system, like the law books which incorporated
it, became an integral part of the whole set of principles
that sustained the imperial order, and which in turn ensured
social order. This system then managed to serve two distinct
interests; society's for which Confucius originally labored,
and, as is noted above, the imperial interest of maintaining
law and order. In order to elevate the authority of the
nuclear family it was laid down in the T'ang statutory books
that a son who had struck his father or grandfather, or
had planned to kill either one of them would be decapitated.
In any event even if harm was done to the property of the
father or grandfather for the express purpose of inheriting
their property during their lifetime, the offender would
be punished with three years hard labor. Included among
those offences for which not only the offender in question
would be penalized, but also his family, in line with the
idea of collective punishment, was that of rebelling against
the emperor. In the criminal code it is explained that since
the emperor is on par with heaven and earth and since he
is the father of all his subjects- rebelling against him
is the same as causing a natural disaster, and the only
way to counter such activity is to completely destroy the
source of the rebellion from its very roots, which necessarily
includes all family members of the offender. Obviously this
type of mandated punishment had an especially wide deterrent
value since the loss of family continuity was the harshest
punishment one could inflict on someone trained in Chinese
culture. The reason the code refers to the emperor as the
father of all his subjects is to show that the penal system
compares the elevated position and authority of the father
figure with that of the emperor's. In regard to the position
of the family as it related to the regime and to the legal
system in place during China's imperial period, so long
as the families were relatively small and politically impotent,
they were considered the focal point of loyalty and authority
for the regime, so that the support given by the government
towards family institutions squared off a positive relationship
of reciprocal bonds between the family, at the one end,
and the institutions of law and order, at the other. Since
government positions were decided by the royal courtyard,
in accordance with recommendations made by the local population
and its dignitaries, and since the social criteria that
were to influence such a recommendation were measured in
terms of the loyalty and honour a man demonstrated towards
his parents, and the amount of obedience he showed specifically
towards his father, as well as the academic level, of the
candidate, and also, owing to the fact that the positions
that were connected to the judiciary were conditional on
passing examinations on topics of law, philosophy, and religion,
it became the accepted practice that the families would
finance the academic studies of one of the children who
seemed to them to be the most gifted, in order that he may
be promoted by receiving a government career, and thus elevate
the reputation of the forefathers of that family. Studies
were also partially funded by a tax exemption on part of
the family's income so that in effect the government was
partially subsidizing education. The traditional Chinese
education that nurtured the family included motifs of belief
in man and in his good nature, in contradistinction to the
western Christian institutions which had continued to teach
the idea that the nature of man's heart was evil from his
youth.
