Law Classics
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“Zhu Fa Bing Cun” (The Coexistence of Various Laws) and “Min Xing You Fen” (The Differentiation Between Civil and Criminal Laws)
Abstract From the time China entered the class society and began the legal civilization, criminal law had always been the basic form of the expression of law. It was stated in “Shi Gu” (explaining the different meaning and usages of words in ancient times) of Er Ya (Using Graceful and Elegant Languages: an ancient book containing commentaries on classics, names, etc.) that “‘Xing’ (punishment) is both the constant and the law”, and it was also mentioned in Yi Jing (The Book of Change) that “‘Jing’ (punishment) is the law.” During the period of the three ancient dynasties, namely, Xia Dynasty (2033–1562 B.C.), Shang Dynasty (1600–1046 B.C.) and Zhou Dynasty (1046–256 B.C.), the legal codes were mainly criminal laws, such as Yu Xing (The Penal Code of Yu), Tang Xing (The Penal Code of Tang), Jiu Xing (The Code Nine Penalties), Lv Xing (The Penal Code of Lv), Xing Shu (The Penal Code) and Xing Ding (Sacred Container Inscribed with Penalties). To the Period of Warring States, to adapt to the epochal need of reform and the trend of standardization and codification of laws, Li Kui, “Si Kou” (the minister of justice) of Wei had gathered the criminal laws of every state and made the six-chapter Fa Jing (Canon of Laws). Fa Jing (Canon of Laws), which was known as the first codified feudal law with comparatively systemized structure, had expressed the legalists’ proposals that “there should be no discriminations between the intimate and the distant or between the noble and the humble” and “severe penalties be executed for minor misdemeanors” for the purpose of upholding the authority of the centralized feudal despotism. As for its structure of compilation, Fa Jing (Canon of Laws) was centered on the criminal law, but it also had incorporated the procedural law and the administrative law, therefore, it had inaugurated the legal tradition of compiling a codified law with “Zhu Fa He Ti” (the integration of various laws) and “Min Xing Bu Fen” (with no differentiation between civil and criminal laws).
Origin of Legalism
The early thought behind Legalism was first formed by Shang Yang and was further developed by Hanfeizi and Li Si as a realist reform oriented philosophy meant to strengthen government and reinforce adherence to the law. Legalism fully emerged during the Warring States Period, a critical point in ancient Chinese history. The Warring States Period and the preceding were marked by frequent violence and war, and many new philosophies were founded to cope with the environment of the time including, Daoism, Confucianism, and Mohism. Some of the first adopters of Legalism were the statesman Shang Yang of the State of Qin. The legal elements of Shang Yang's theories were based on the Book of Law written by Li Kui of the State of Wei. Overall, these theories advocated the belief that all people are fundamentally flawed and that stringent laws and harsh punishments are required to keep them in order. In addition, his theories thought all humanity was selfish and evil, which added towards the cause for Shang Yang becoming prime minister of the Qin under the rule of Duke Xiao of Qin and gradually transforming the state into a vigorously regulated machine, the sole purpose of which was the elimination of all rivals. The Qin Dynasty would eventually conquer six other feudal states and create what is regarded as the first true Chinese Empire. Shang Yang swept away the aristocracy and implemented a meritocracy – those who achieved could reach high places and birth privilege was reserved exclusively for the ruler of the state. Previously the army had been controlled by nobles and constituted of feudal levies. Now generals could come from any part of society, provided they had sufficient skill. In addition, troops were highly trained and disciplined. From then on, Qin was taking its shape to become the most powerful state in China before it eventually brought all of the six other states together (Qi, Chu, Han, Yan, Zhao, and Wei) under Qin Shi Huang.
Li Kui (legalist)
Life and Reforms Li Kui was in the service of the Marquis of Wei even before the state of Wei was officially recognised, though little else is known of his early life. He was appointed as Chancellor of the Wei-controlled lands in 422 BC, in order to begin administrative and political reforms; Wei would therefore be the first of the Seven Warring States to embark on the creation of a bureaucratic, rather than a noble-dominated, form of government. The main agendas of Li Kui's reforms included: The institution of meritocracy, rather than inheritance, as the key principle for the selection of officials. By doing this, Li Kui undermined the nobility while enhancing the effectiveness of government. He was responsible for recommending Ximen Bao to oversee Wei's water conservancy projects in the vicinity of Ye, and recommending Wu Qi as a military commander when Wu Qi sought asylum in Wei. Giving the state an active role in encouraging agriculture, by 'maximising instruction and agricultural productivity' (盡地力之教). While the precise contents of this reform are unclear, they could have included the spreading of information about agricultural practices, thus encouraging more productive methods of farming. Instituting the 'Law of Equalising Purchases' (平籴法), wherein the state purchased grain to fill its granaries in years of good harvest, to ease price fluctuations and serve as a guarantee against famine. Codifying the laws of the state, thus creating the Book of Law. The text was in turn subdivided, with laws dealing with theft, banditry, procedures of arrest and imprisonment, and miscellaneous criminal activities. Legacy The direct result of these pioneering reform measures was the dominance of Wei in the early decades of the Warring States era. Leveraging its improved economy, Wei achieved considerable military successes under Marquis Wen, including victories against the states of Qin between 413 and 409 BC, Qi in 404 BC, and joint expeditions against Chu with Zhao and Han as its allies. At the same time, the main tenets of Li Kui's reforms - supporting law over ritual, agrarian production, meritocratic and bureaucratic government and an active role of the state in economic and social affairs - proved an inspiration for later generations of reform-minded thinkers. When Shang Yang sought service in Qin, three decades after Li Kui's death, he brought with him a copy of the Book of Law, which was eventually adapted and became the legal code of Qin. Along with his contemporary Ximen Bao, he was given oversight in construction of canal and irrigation projects in the State of Wei.[1] See also
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1 The Canon of Laws or Classic of Law (Chinese: 法经; pinyin: Fǎ Jīng) is a lost legal code that has been attributed to Lǐ Kuǐ (Chinese: 李悝), a Legalist scholar and minister who lived in the State of Wei during the Warring States Period of Chinese history (475-220 BCE).
2 His political agendas, as well as the Book of Law, had a deep influence on later thinkers such as Han Feizi and Shang Yang, who would later develop the philosophy of Legalism based on Li Kui's reforms.
3 The Canon of Laws, attributed to Li Kui.