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Were Chinese rulers above the law? Toward a theory of the rule of law in China from early times to 1949 CE.

Abstract

In recent years, there has been a growing awareness both in China and elsewhere of the importance of law in Chinese efforts to bring order--if not justice--to society and the world. Even the most admiring students of Chinese legal history, however, have rejected the idea that the Chinese ever succeeded in establishing the rule of law--as opposed to rule by law--including, especially and critically, the subordination of the ruler to legal principles and practices. This article uses a fresh conceptualization of the entire Chinese historical record from earliest known times to the mid-twentieth century CE to argue that, according to a commonly agreed upon definition of "the rule o flaw," we can discern several different kinds of regimes of the rule of law in China's past that included both the ideal and, in many cases, the reality of holding the ruler accountable to the law. The implications of this suggested shift in the paradigm of Chinese legal history for Chinese politics in the period since 1950 CE will be addressed in another venue.
TABLE OF CONTENTS

I. INTRODUCTION
   A. Defining the Rule of Law
   B. The Existing Paradigm for Chinese Legal History
   C. Toward a New Theory of the Rule of Law in Chinese History
II. ORIGINS OF LEGAL PRINCIPLES AND PRACTICES IN THE ZHOU
III. INTELLECTUAL FOUNDATIONS IN THE SPRING AND AUTUMN AND WARRING
STATES PERIODS
IV. THE QIN CENTRALIZATION
V. THE HAN POPULIST ORDER
VI. WEI, JIN, AND NORTH AND SOUTH DYNASTIES: THE PERSISTENCE OF THE
IDEAL AND SOME OF THE REALITY OF THE RULE OF LAW IN A PERIOD OF
DISUNION AND DISORDER
VII. SUI REUNIFICATION
VIII. THE TANG: AN ELITIST REFORMIST ORDER
IX. FIVE DYNASTIES, TEN KINGDOMS, LIAO, XIXIA, SONG, AND JIN: ANOTHER
PERIOD OF DISORDER ACCOMPANIED BY CONCERN FOR THE RULE OF LAW
X. THE YUAN: ANOTHER AUTHORITARIAN CENTRALIZING POLITY
XI. THE MING: ANOTHER POPULIST ORDER
XII. THE QING: ANOTHER ELITIST ORDER
XIII. THE REPUBLIC: DISUNION AND ANOTHER CENTRALIZING STATE
XIV. CONCLUSIONS


I. INTRODUCTION

A. Defining the Rule of Law

While Chinese and other scholars define "the rule of law" (fazhi) in many different ways, they generally agree that it should be distinguished from "rule by men" (renzhi), in which personalities matter most, (1) and from "rule by law" (fazhi), in which politics take priority. (2) Stated more positively, observers in both China and elsewhere and in both the past and the present tend to agree that the rule of law requires at least two elements. First, the ruler must be subject to, or at least not above, the law; and second, the law must be applied equally, or at least equitably, to all members of society. (3) Other criteria are possible, of course, including: transcendent values, natural law, rationality, publicity, fixity, consistency, universality, constitutionality, separation of powers, an independent judiciary, professional lawyers, human rights, and broad political participation. (4) In fact, we shall encounter many of these characteristics in various legal regimes in China. But these features, we submit, are or at least should be regarded as secondary to the above two core elements, if only because they are subject to wider variation over space and greater change over time. Few, if any, historical polities have fully and consistently exhibited the core elements of the rule of law, let alone manifested the entire panoply of ancillary features often associated with it. (5)

B. The Existing Paradigm for Chinese Legal History

In the standard view widely held by Chinese and others, China lacked the rule of law throughout its long history for many reasons. First, the dominant intellectual tradition of China was "Confucianism" (rujia sixiang) that valued the rule by men. (6) The most relevant other school of thought, Legalism, called only for the rule by law. (7) Legalism's defect was dramatized by its association with the despotic Gin dynasty that unified China in 221 BCE. (8) In this view, Legalism's limited promise of equality before the law was subsequently emasculated by a process of "Confucianization" in the succeeding Han Dynasty (206 BCE-220 CE). (9) During the Han, Chinese emperors ruled by will or whim over a hierarchical society. That "imperial society" subsequently grew in size and sophistication over two millennia without significant change. (10) The only shifts were an intellectual reaction to Buddhism (that produced "neo-Confucianism") and a political reaction to Mongol rule (that involved "brutalization"). These developments merely heightened despotism and hardened hierarchies. (11) Only with the decline of China's last dynasty, the Qing (1644-1911 CE), and the arrival of Western ideas and institutions did the Chinese state really change. Finally, in the first half of the twentieth century, the Chinese transformed their inherited, traditional, feudal empire into a modern, capitalist nation state. The significance of that supposed transformation, as well as that of our alternative perspective for the legal regime of the Chinese People's Republic will be addressed in future publications. (12)

C. Toward a New Theory of the Rule of Law in Chinese History

The recent discovery of new texts from early Chinese history and access to new archival materials pertaining to the last few centuries now permit--even require--a fresh theory regarding the origins, nature, development, and incidence of the rule of law in China. According to the theory entertained here, the rule of law originated in the ideas and institutions of the earliest historical polities, including particularly the Zhou (trad. 1122-256 BCE) that based its legitimacy on the mandate of heaven and nature (tianming). The rule of law acquired its theoretical foundations during the Spring and Autumn and Warring States period (770-221 BCE) in all three major schools of Chinese political thought: Ruism (known in the West as Confucianism), Legalism, and Daoism. The Gin dynasty (221-206 BCE) used Legalist principles to centralize China in the third century BCE, but, significantly, it was soon overthrown and replaced by the Han. The Han drew on all three of the major schools of thought plus other ideologies to establish a modicum of political order and social justice for four centuries. The Han then gave way to a long period of disunion characterized by the pervasive influence of Buddhism that added its own, as yet largely unstudied, perspectives on law.

The Sui (589-618 CE) used Buddhism as well as other ideologies to reunify China. Together with its more durable sequel, the Tang (618-907 CE), the Sui established a kind of rule of law that spread to the rest of East Asia. The Tang eventually declined in a process remarkably reminiscent of the Zhou, but its legal system remained normative for China and much of East Asia. The next several hundred years saw the rise and fall of various regional polities: the Five Dynasties/Ten Kingdoms, Liao, Xi Xia, Jin, and Song. Then, the Mongol-led Yuan (1279-1368 CE) reunified and attempted to recentralize China and much of East Asia by means of a rule of law that was both lax and comprehensive, including numerous ethnic groups in an oecumene of unprecedented size. With the break up of that system, another commoner rebel rose to power. He followed the model of the founder of the Han to establish the Ming (1368-1644 CE) which enforced a comprehensive legal regime designed to rein in the bureaucracy, serve the people, and maintain China's centrality in East Asia.

After the Ming fell in a process strongly resembling the fall of the Han, the Qing (1644-1911 CE) drew on the experience of several previous orders, including particularly the Tang, and used ancient legal principles, especially those of the Zhou, to bring order to a burgeoning population and extensive realm. At its height in the eighteenth century, the Qing attracted tribute from many states in Asia and won respect among Europeans and Americans. During the nineteenth century, as the Qing declined, it joined much of the rest of the world in a subordinate position in a newly forming, European-dominated system. At the end of the Qing and in the Republic (1911-1949 CE), the Chinese revised their legal system in an effort to recover sovereignty over themselves and foreigners residing in China. In 1928, the Guomindang established a new capital in Nanjing and regained tariff autonomy, but, like the Song on which it modeled some of its policies, it proved unable to reassert central control over much of the country including the treaty-ports that remained in foreign hands. During the 1930s, the Nanjing government confronted an American economic crisis, Soviet socialist revolution, and Japanese military expansion. It turned to European fascism and the Qin model in a desperate effort to regain autonomy and control. The result was a drift from a draconian form of the rule of law to rule by men and then on to rule by law and even lawlessness that ended with the overthrow of the Republic in 1949. (13)

II. ORIGINS OF LEGAL PRINCIPLES AND PRACTICES IN THE ZHOU

The Zhou dynasty developed the idea of the superhuman mandate of heaven and nature that both legitimated and problematized its replacement of the Shang (circ.1750-1122 BCE). The mandate also justified and limited the authority of the Zhou kings who were conceptualized as the sons of heaven (tianzi). The Zhou monarchs promulgated the first written laws in Chinese history that have come down to us. They include the Kanggao (Declaration of Kang), in which King Wu (r. 1122-1116 BCE) instructed a young prince to follow the example of the Shang rulers in administering justice. Early statutes also include the Luxing (Punishments of Lu), supposedly addressed by King Mu (1001-947 BCE) to a minister. This statute argued against the five bodily mutilations (nose, ears, castration, branding) said to have been used by the Miao. (14) The Zhou Chinese were clearly ambivalent toward laws, regarding them primarily as inheritances from the past or as techniques developed outside the central plain. But they were sufficiently confident of their value to make them public, beginning a practice that was followed by some--but not all--later dynasties. As Zhou authority waned, regional states, including Zheng in 536 and Jin in 513, developed legal statutes which they inscribed on metal cauldrons. Those statutes were probably designed to strengthen the authority of state rulers against local aristocrats. Their "publication," in any case, stimulated a debate. Some argued that if people knew of the regulations, they would resort to litigation to circumvent them. Certain persons did appear as advocates in lawsuits during this period, although their role did not develop into a profession as happened in ancient Rome. (15) These issues of publicity and advocacy were not definitively decided in the late Zhou (or Spring and Autumn and Warring States) period, and they would reemerge under comparable conditions in later times.

III. INTELLECTUAL FOUNDATIONS IN THE SPRING AND AUTUMN AND WARRING STATES PERIODS

In reviewing the major texts of the three main ways of thought in late Zhou China, one discovers several ideas relevant to the rule of law.

1. Ruism. While the Zhou state developed laws (fa), punishments (xing), and even statutes (dian), it may not have enforced them very far down in society or extended them very far out to neighboring peoples. The Zhou people probably had their own customs (li, also translated rites) which coexisted with different ones maintained by other peoples (zu) under their sway. (16) In an effort to restore the dwindling authority of the Zhou in the Spring and Autumn Period (770-481 BCE), Kongzi (Confucius) (551-479 BCE), a teacher and prison warder in the state of Lu, developed the concept of custom (li) into a more universal concept, potentially available to all social strata and all ethnic groups. Kongzi also invoked earlier political leaders, both legendary and historical, as sages who could serve as models (fa, the same character as for law) for rulers of his own day. In these ways Kongzi and his followers, including Mengzi (Mencius) and Xunzi, who became collectively known as the Ru (literally "weaklings, or scholars"), arguably fashioned a form of "natural law" that could provide a foundation for a more integrated and extensive polity. As Karen Turner has pointed out, Kongzi, like Plato in Greece, favored sage kings over legal regulations, but, also like Plato, he and his followers acknowledged the need for laws and punishments to supplement moral authority. Unlike Plato, Kongzi never called for sages that were laws unto themselves. (17)

2. Legalism. During the Warring States Period (481-221 BCE), Shang Yang (d. 338 BCE) carried out reforms in the state of Qin that enabled it to increase its wealth and power in competition with six other large states contending for hegemony in China. Perhaps inspired by the efficacy of the original laws of Zhou, he argued that the sage kings were law makers and that rulers should not be afraid to abolish old laws and promulgate new ones to accord with the times. He believed that the ruler should govern through laws and apply them equally to all men. He should punish even small offenses harshly so as to deter crime and ultimately end the need for laws. Meanwhile, laws should be clear and public, and the ruler should be guided by them and not by his own private will or interest. In his words, "When the ruler and officials are lax in executing the laws and allow private interests to take over, there will be chaos. Therefore, establish laws and clarify duties, and do not allow private views to infringe the laws. Then you will have good government." (18) Shang Yang's determination to enforce the law, even against the Qin heir-apparent, led to his death, but his book was preserved and became influential. Another advisor to the Qin, Hanfeizi (d. 233 BCE) also argued that the law should take precedence over everyone's will, including the ruler's. In his view, the former sage kings had "depended on law and not their personal ability to decide whether to reward or punish." (19) Otherwise "even Yao [a legendary sage ruler] could not have governed a state well." Further, "even though a ruler is mediocre, he can still administer the state without making a mistake if he sticks to the law." (20) Like Aristotle, the Legalists believed that the rule of law was preferable to that of any person and that rulers and officials should be custodians of the law. Unlike Aristotle, the Legalists did not believe that a sage might rightly act above the law or that certain people were born into families destined to be slaves. (21)

3. Daoism. As warfare intensified and popular suffering became unbearable, some thinkers lost confidence in the human ability to establish peace and order. Kongzi and Hanfeizi had already invoked the concept of the Way (dao). Now some thinkers, including Zhuangzi and the legendary Laozi, focused on a naturalistic interpretation of that concept as a way out of the chaos of their age. The recently discovered anonymous text, the Jingfa (Classic of Law), offers a naturalistic source of law. In its words, "The dao gives birth to the law, and law is what marks success and failure Used as a marker it distinguishes what is crooked from what is straight." (22) This text, combined with more eclectic ones, such as the Guanzi and the Huainanzi, spelled out the implications of the dao for rulers and officials' intent on administering a large and diverse population. The Daoist dao shared the universality of the Ruist li and the Legalist fa but it emphasized nature over sages and people over the state. Like the li and the fa, the dao imposed constraints on the ruler, and it came close to the concept of natural law advocated by Greek Sophists and Roman jurists. Unlike natural law in the West that undergirded the duties and rights of citizens, the dao in China was brought to bear more on the responsibilities and opportunities of rulers and officials. (23)

IV. THE QIN CENTRALIZATION

If the Zhou initiated legal ideas and practices, and the Spring and Autumn and Warring States period provided the theoretical foundation for law, the Qin state adopted Legalist methods to centralize control of China. Favored by a defensible location on the frontier and a stable royal line, the Qin developed sufficient wealth and power to overwhelm the other states and unify China in 221 BCE. The First Emperor (Shihuangdi) drew on ideas previously associated with gods and ancestors to adopt a new title that symbolized his claim to greater authority than that of past sons of heaven. He also drew on Legalist theory tempered by Ruism, Daoism, the five agents (earth, wood, metal, fire, and water), and yin (shade) and Tang (sun), to extend a centralized bureaucratic system (junxian, literally "commanderies and counties") down to the local level and out beyond the frontiers of the former Zhou realm. (24) Writings on bamboo discovered in the 1970s indicate that the Qin established a highly rational and effective administrative system with detailed written instructions to officials on how to conduct and report criminal investigations and how to make fine distinctions among offenses. The Qin established certain durable legal practices, such as accepting an offender's voluntary confession as a mitigating factor in sentencing. The Qin established peace and order, decreed the standardization of weights and measures (another enduring, though rarely enforced, ideal), and recognized households and private property as the bases of the social and economic systems. Given these achievements, it is not surprising that its administrative system long survived the dynasty. Yet the emperor also claimed heightened sacred authority, quested for personal immortality, rejected criticism, conscripted laborers for enormous public works projects, sent troops on far-flung expeditions against northern neighbors, and resorted to harsh punishments of bodily mutilation and collective responsibility. These despotic measures resulted in aristocratic and popular revolts that brought the polity to a relatively quick end. (25) While recent scholarship increasingly shows that the Qin suffered from bad press, initiated by the succeeding Han, and that a more balanced appraisal based on original documents is long overdue, (26) it is still true that the precipitous fall of the Qin greatly weakened the appeal of Legalism and opened the way to alternative perspectives. Whereas the roughly contemporaneous and analogous Roman Empire had a major impact on the theory and practice of the rule of law in the West, the Qin established an authoritarian regime of law that provided temporary centralization but proved to be only one form of the rule of law that could be adopted or rejected by successor regimes.

V. THE HAN POPULIST ORDER

The first Han emperor, Liu Bang, was a commoner who led a semi-popular revolution against the harsh laws and heavy exactions of the Qin state. Early Han ideologues attempted to legitimate their polity by claiming to simplify the laws and reduce the levies in line with the Daoist theory of non-purposive action (wuwei). Scholars using legal documents discovered in the 1980s, however, remind us that Liu Bang had served as a Qin policeman. As Gaozu (r.206-194 BCE) (literally "grand progenitor"--his temple name as founder of the Han), he actually took over most of the Qin laws, including even the notorious ban on Ruist books. He enlisted thirty students from Lu to draw up the Han rites on the basis of those of the Qin, and he increased the number of statutes to 359 (including 409 articles requiring capital punishment). While Han jurisprudence owed more to Qin precedents than it was willing to acknowledge, Han legal theory and practice did undergo important changes. Although Han and subsequent monarchs to 1911 retained the Qin title "emperor" in addition to the title of "son of heaven," they generally gave up the Qin rulers' claim to absolute and eternal power and styled themselves intermediaries between heaven and earth. The early ruler Wen (r. 179-156 BCE), inspired by Ruist and Daoist ideas of humaneness (ren), abolished the punishments of bodily mutilation (including tattooing, castration, and the cutting off of feet) and shifted the focus away from deterrence to retribution, attained largely through flogging and forced labor. The Han abandoned the Legalist principle of heavy punishment for minor crimes and adopted instead the Xunzian ideal of making the punishment fit the crime (and the criminal). This practice became standard in most later ages. Han laws certainly respected elements of social hierarchy, but that reflected a continuation of Legalist ideas and the Qin system as well as an acceptance of Ruist principles and Han realities. (27) Under Wudi, the Ruist classics (the Poetry, Documents, etc.) were cited in arguing legal cases. Cases were appealed all the way to the ruler, written judgments were returned after cases were decided, and special inspectors were appointed to review doubtful lawsuits--all forms of judicial review. By at least 50 BCE the administration of punishments was designed to conform to the cosmic process as understood through the theories of the five phases, yin and yang, and the interaction of heaven, earth, and humans. Even Wang Mang, a minister who overthrew the Han and established his own short-lived Xin dynasty (8-23 CE) reportedly demonstrated his respect for the rule of law by ordering three of his sons, a grandson, and a nephew to commit suicide for infringing the statutes. (28)

In this context, individual Han rulers dealt with particular cases so as to establish and maintain various bases of the rule of law. One basis was ancestral instructions. For example, Gaozu decreed that only men named Liu could be named kings and only men of great military achievements could be titled marquis. This rule was violated by his wife, nee Lu, who usurped the throne and enfeoffed her relatives, but it was generally observed by later rulers. Jingdi (r. 156-140 BCE), for example, followed the founder in respecting the Liu kings; when a high official Chao Cuo recommended limiting their authority he had him executed. Respect for the ancestors' rules did not, of course, require total or permanent adherence to them. Jingdi's successor, the powerful Wudi, accepted the suggestion of one of his officials and adopted measures to weaken the power of the Liu kings over time. (29) The idea that the title of marquis should be bestowed only on men with military merit, however, persisted through the dynasty. Three centuries later, when Lingdi (r. 168-188 CE) wanted to bestow the title on a loyal eunuch who could boast no military achievements, the eunuch himself reportedly demurred, pointing out that it violated the founder's rule. (30)

Custom (li rites), already important during the Zhou and in Ruist thought as discussed above, provided another check on the behavior of Han rulers. When, in the early Former Hart, Wendi's favorite concubine took a seat next to the empress, an official moved her away. Both Wendi and his concubine were annoyed. But the official insisted, saying that the ruler had already established his empress and could not allow a concubine to be treated in the same way as her mistress. According to the records, Wendi not only accepted the remonstrance but also asked his concubine to reward the official for his integrity. (31)

Hart rulers were also subject to the constraint of statutory laws. The ruler Wendi was nearly thrown out of his saddle when a commoner jumped out and startled his horse. The ruler was so vexed that he wanted the offender executed to serve as an example. According to the historical records, the Chamberlain for Law Enforcement Zhang Shizhi protested that the statutes stipulated a mere fine for such an offense, and the imposition of capital punishment would be a violation of the law. The official pointed out that, "Laws are universal and public. This law being what it is, if you violate it, it will cause people not to trust in the law." (32) Again, although Wendi was not pleased at this legal restraint on his actions, he acknowledged his error and withdrew his request. (33)

Perhaps in part because Hart rulers were generally accountable to the laws, some of them worked to reduce their severity. Wendi's son Jingdi, for example, was well known for his lenience. He formally reduced the severity of corporal punishment, first from five hundred blows to three hundred and then from three hundred to two hundred. His reforms together with those of his father gave rise to the expression, "the good rule of Wen and Jing." Jing, too, had to weigh the public interest in enforcement of the laws against his personal and family interests. When his brother, the king (or prince) of Liang, was charged with involvement in a murder conspiracy, Jingdi asked the judicial inspector to investigate. The inspector reported to Jingdi that the prince was guilty as charged and should be executed according to the law. The official added: "I understand your majesty is very anxious because, if the prince is not punished, Han law will not be implemented; if the prince is punished, your mother will not be able to eat and sleep." (34) The inspector finally found a way to pardon the prince while executing his co-conspirators, but the rule of law was sufficiently strong that neither Jingdi nor his mother could be sure of that outcome. The fuss would not have arisen in a system in which rulers were laws unto themselves. Even Guangwu (r. 25-57 CE), the aristocratic founder of the Latter Han who favored many members of his lineage and other powerful families, placed the law above family in two cases. In one he rewarded an official who had executed his adopted son for violating the law. In another, he admonished critics of an official who had prosecuted an errant member of an aristocratic family, saying: "You cannot vilify my official who simply acted in accord with the law." (35)

Even the famously autocratic ruler Wudi (r. 140-87 BCE) who was mindful of Qin as well as Han precedents, also faced limits on his authority. When the court historian Sima Qian defended an official who had lost an important battle against the Xiongnu on the northern frontier, Wudi showed his pique by forcing him to choose between death and castration. Sima chose the latter so that he could complete his history. He then expressed his resentment of Wudi's harshness by refusing to include the basic annals of that monarch's reign in his account. While Sima's mutilation symbolized Wudi's highhandedness (a quality often evident in "national security" cases in any society), Sima's very text showed that even the most authoritarian ruler had limited influence over the historical record. Moreover Wudi sometimes used his personal authority in support of the rule of law. It was for this reason that the later historian, Sima Guang, actually praised him for "implementing the law strictly, not allowing corrupt exceptions." (36) In one relevant case, when Wudi's nephew killed a person while intoxicated, the ruler ordered the implementation of the stipulated death sentence. He reportedly told his officials: "The laws were created by my forebears. If I break their laws because of my sister, how will I face them in the royal temple after I die? Also I would be betraying my people." (37) In another case, Wudi, although a very imperious ruler, was said to be sufficiently awed by one of his officials that he always put on his most formal attire when meeting with him. When that official once appeared unannounced, the ruler, who was informally attired, reportedly concealed himself behind a curtain and asked his personal attendant to grant the visitor whatever he requested. (38) While some of these anecdotes might not be literally true, taken together they suggest that even the strongest rulers were thought to be aware of the restrictions placed on them by laws and by their subordinates.

Underlying such royal circumspection in matters large and small was the theory, embraced by Wudi's principal ideologue, Dong Zhongshu, that there were important connections among heaven, earth, and humans. If the son of heaven performed his proper functions, the natural world would be harmonious and the people at peace; but if he failed in his duties he and his people would be warned by storms, meteors, and eclipses, and punished by droughts, floods, and earthquakes. (39) This theory came under serious criticism in the Latter Han, but it remained a powerful force in Chinese politics to the end of the dynasty and beyond. When Huandi (r. 147-167 CE) allowed eunuchs to arrest and torture two upright governors, an official reported that continual thunder storms signalled that "the eunuchs are too powerful and the punishments too harsh." (40) Although the late Han rulers were too weak to rein in their servants, such eunuch abuses of the law ultimately contributed to the fall of the dynasty. Censorial officials who had opposed eunuch power in the late Han, sometimes at the cost of their lives, took comfort in the possibility that they would at least "gain fame as faithful officials" in the histories. (41) In this case, failure to observe the laws against using eunuchs in matters of state became a negative model that was invoked in later times to deter such negligence.

VI. WEI, JIN, AND NORTH AND SOUTH DYNASTIES: THE PERSISTENCE OF THE IDEAL AND SOME OF THE REALITY OF THE RULE OF LAW IN A PERIOD OF DISUNION AND DISORDER

After the collapse of the Han in 220 CE, China entered another period of internal division often compared with that of the Spring and Autumn and Warring States periods. This period of "disunion" (a term that suggests that "union" had become normative), like the previous one, witnessed much lawless activity both within and among states. But it also contributed to the evolution of the Chinese theory and practice of the rule of law. Wars among the Three Kingdoms (220-265 CE) of Wei, Shu-Han, and Wu included acts of loyalty and disloyalty that became positive and minatory models for later generations. Zhuge Liang, the prime minister of Shu-Han, was so fair in his administration of justice that when he died he was reportedly mourned by two former officials whom he had banished to the southern frontier. Following Mengzi's principle that rulers and officials should take historical exemplars as models (fa), a later (Tang) ruler urged his officials to take Zhuge as their model. (42) During the Jin (265-420 CE) a document called the Fajing (Legal Classic) was "discovered" and used to explain the origins of Legalist thought, probably revealing more about the needs of the Jin than about the history of Legalism, but reflecting the continuing interest in law as a means of unifying the realm. (43) In the Former Qin (350-82 CE), after Fu Jian defeated his "rebellious brothers," he ordered one set of nephews to be spared to continue the main line of the royal lineage and ordered another set killed because their father had endangered the state without regard to his mother. It was thought to be because Fu Jian "did not treat public law as a private thing" (44) that he was able to unify much of northern China at least briefly. (45)

During the Northern Wei (386-556 CE), when an empress dowager executed the subordinates of an "evil" general but spared the general because his wife was the dowager's sister, her sister upbraided her, reportedly saying "How can your majesty not punish Yuan Yi simply because I [his wife] am your sister?" (46) Although we do not know the upshot of this case, the record suggests that even members of aristocratic families could recognize that public laws should take precedence over family interests. In the Eastern Wei (534-550 CE), the powerful Prime Minister Gao Huan tried to prevent the prosecution of the wife of his friend, tutor to the ruler, but he had to work through judicial officials to do so. (47) During the Northern Qi (550-577 CE) there was concern about the widespread disloyalty to rulers and to fathers that typically occurred in such times of disorder. That led to the codification for the first time of the "Ten Abominations:" rebellion, sedition, treason, contumacy, depravity, irreverence, impiety, discord, unrighteousness, and incest. (48) This categorization of offenses has been compared to English common law because it later became so widely accepted. The ten abominations were not always punished at all, let alone harshly, but those who were convicted of them were ineligible for pardons and amnesties. The ten abominations persisted in common law and appeared prominently in subsequent legal codes. (49) It was during this period of domestic strife and interstate warfare that the Indian religion of Buddhism, stressing the evanescence of human life and the quality of mercy, began to permeate Chinese civilization. The effects of Buddhism on Chinese concepts and forms of the rule of law, presumably including notions of causality, responsibility, mercy, and respect for life, remained operative into the twentieth century but are only beginning to be studied. (50)

VII. SUI REUNIFICATION

The Sui dynasty (589-618 CE) played a role somewhat analogous to that of the Shang dynasty in early China and reunified China, allowing China to assume its accustomed role as a cultural center, now in all of Asia. Yang Jian, the aristocratic founder of the Sui (581-617 CE) who ruled as Wendi (r. 589-604 CE), not only reunified the known world (tianxia, literally "all under heaven") but upheld the principle of "equality before the law." Yang refused his officials' pleas that he pardon his son, the Prince of Qin, who had pilfered public funds, noting simply that he (Yang Jian), as the son of heaven, could not violate the law. He also turned down a subsequent petition from officials to establish a separate legal regime for his offspring. Wendi did have a violent temper, and in one case he decided to kill someone who had simply displeased him. But a leading official, Su Wei, managed to foil his plan. Later Wendi reportedly regained his composure and thanked Su for his intervention. In another instance demonstrating the Sui ruler's accountability to the law, Wendi had a servant beaten at court for a small offense. When a censor, an official somewhat immune to royal wrath, reproached him, Wendi at first ignored him. When the censor asked how the ruler could disregard the advice of an official (himself) whom he had deemed worthy of appointment, Wendi finally relented and pardoned the servant. In another instance, when the ruler insisted on restoring to office an old friend who had speculated in grain, he acknowledged that he was guilty of "twisting the law to accord with my private feelings." (51) In this case, the ruler had not been constrained by the rule of law, but he acknowledged that he should have been. Wendi was strict in dealing with corrupt officials and even with minor offenders among commoners, but he acted in accord with Legalist theory and in a manner expected of a leader who had reunified the realm. He could also demonstrate lenience in encouraging appeals from ostensible victims of injustice. On balance, in the words of one twentieth-century scholar, Wendi's statecraft conformed not only to Chinese Legalist thought but also to "the modern spirit of the rule of law." (52)

To reunify China for more than a single generation or dynasty, the Sui drafted a comprehensive, universal, and up-to-date legal code. It began with a parsimonious draft in 583 that was only one-fifth to one-third the size of those of the immediately preceding regimes. In 589 it produced a new and enlarged code of 1735 articles that lessened many of the most severe punishments in earlier codes, such as whipping, dismemberment, and public exposure of heads. Then, in 591, it promulgated another, an even leaner version, the so-called Kaihuang Code in five hundred articles, that drew on the codes of five previous states and provided for five basic punishments for commoners (death, exile, labor, and two kinds of beatings) and two for officials (fines and dismissal). Significantly, the code was based on the model of the Zhouli (Rites of Zhou), a Hart-period text idealizing the Zhou system, and it provided for a system of appeals from commoners up to rulers that had its roots in the Han. (53) The Kaihuang code provided a model for the neighboring states of Korea, Vietnam, and Japan. (54) Even the second Sui ruler, Yangdi, infamous (perhaps unfairly) for his arbitrary and dissolute rule, further reduced penalties in two hundred of the five hundred articles in the code. Such amelioration, to be sure, was quickly reversed as the dynasty became bogged down in campaigns against Koguryo. In 607, the very year the new code was promulgated, Yangdi executed three officials held over from the previous reign who criticized his mode of governance. His execution of Xue Daoheng two years later for mild criticism was the beginning of a darker period of Sui rule that ended in its overthrow by rebels. (55)

VIII. THE TANG: AN ELITIST REFORMIST ORDER

Like the plebian Han founder, the aristocratic Li Yuan who overthrew the Sui and founded the Tang (618-907 CE) issued a simplified set of laws that restricted the death penalty to the offenses of murder, violent robbery, desertion, and rebellion. Like Han Gaozu, Tang Gaozu (r. 618-26 CE) no sooner established his own new dynasty than he promulgated an additional fifty-three ordinances based on the Kaihuang code of the Sui. Under his son Li Shimin, temple name Taizong (r. 627-49 CE), the high officials Zhangsun Wuji and Fang Xuanling supervised further revisions of the code to make it more humane and therefore more relevant. They abolished the last remaining mutilation (amputation of the feet), reduced the number of offenses penalized by execution and banishment, limited the use of judicial torture and corporal punishment, and lightened the penalties for lesser crimes. (This appeared to be the first mention of torture in legal statutes, significantly emphasizing restrictions on its legitimate use. More on this topic later.) To ensure care in carrying out executions, the one penalty requiring the ruler's approval, Taizong decreed that it must be requested in three separate reports. Under Gaozong (r. 649-83 CE) there were further revisions in the code, and official and private commentaries were prepared for use in legal education. (56)

Tang Taizong had killed his brothers to secure his own hold on the throne--hardly a virtuous act in Confucian eyes--but he invoked the Confucian model ruler, the Duke of Zhou's suppression of his brothers to justify his action. (57) Whatever the justice of those remarkably parallel incidents that ostensibly served public interests over private (or familial) ones, Taizong, like Zhou Gong, has long been celebrated in the historical records as one of the most enlightened and law-abiding rulers of all of Chinese history. (58) In the first place, he realized that his authority and that of his state rested on the mandate of heaven and nature. Taizong believed that the Sui had fallen so quickly in part because Yangdi had not acted on officials' criticisms. He therefore paid close attention to the advice of such upright advisors as Wei Zheng. Taizong also listened to more obsequious officials such as Revenue Minister Pei Ju. In one case, the ruler secretly instructed his servants to offer bribes to some officials in an effort to expose corruption. When one official took the bribe, Taizong wanted to have him executed as an example. Pei Ju objected on the grounds that such enticement was "not the way to 'guide people with virtue and correct them with rites.'" (59) Taizong was chastened and extolled Pei before the court as a model official. (60) In another case, he told his censors: "I often fear that I will abuse my power to reward or punish people because of pleasure or anger. Accordingly, I want you to do your best to censor me." (61) Believing in heaven's power, Taizong was also constrained to censor himself. Although he wanted to intervene to protect a loyal general who had been sentenced to death for accepting a large bribe, he refrained. He explained to his court: "Law is something rulers obtain from heaven and they cannot violate it for personal reasons. If I pardoned Ren Hong I would violate the law and betray heaven." (62)

Even less high-minded Tang rulers recognized the need to pay public allegiance to the rule of law. Taizong's ambitious concubine, Wu Zetian (r. 690-705 CE) rose to the position of empress and eventually, through a serious of ruthless political maneuvers resulting in many deaths, established her own dynasty (significantly named the Zhou, 690-710, a clear effort to use the authority of that early order to buttress the empress' authority vis-a-vis the Tang ruling family). But even Wu made a show of respect for the law, often presiding at trials and reviewing important cases. When courageous censors such as Xu Yougong confronted her with miscarriages of justice, she almost always accepted their advice. Of course there were also sycophantic officials who were willing to do her bidding and who used dubious means to get results.

For example, Zhou Xing and Lai Junchen used torture to extract confessions that resulted in the execution of many officials accused of rebellion. Later, after Zhou and Lai were themselves eliminated, the empress told her servants that if she had known that they had used torture, she would not have followed their advice and permitted the executions. In her words:
   When Zhou Xing and Lai Junchen decided on the arrest of
   officials, they charged them with conspiracy to rebel. Our
   state has regular laws, so how could I dare violate them?
   Because I sometimes wondered whether some cases were
   true, I sent my trusted servants to check. But they would
   bring me the signed confessions of the indicted officials.
   Thus my suspicions were allayed.... (63)


Given the empress' obvious political ambitions, we may doubt her sincerity in this case. The Lis whom she pushed out of power subsequently described her entire reign as lawless. But even the authoritarian Empress Wu felt compelled to acknowledge her duty to enforce the law rather than violate it. Here we see the constraints imposed by the rule of law but also the unfortunate results of judicial torture. Although strictly limited in the Tang and considered unnecessary when the facts were clear and no confession was required, torture was not proscribed in this era nor in any other before the twentieth century. (64) Empress Wu's personal responsibility was clearer in another case in which she blatantly ignored a court judgment in favor of an upright elder statesman who had criticized two of her favorites. Instead, she banished the critic to the southern frontier. According to one historian, "this act, so uncharacteristic of her, probably determined her fate." (65) High officials, fearing the wrath of her favorites after her death, tried to remove them by legal means. When that failed, they resorted to force. (66) A ruler as bold and skillful as Empress Wu could sometimes violate the law with impunity, but even she paid the ultimate price: removal of her family line from power and a tarnished historical reputation.

Tang Xuanzong (r. 712-756 CE) was another ruler with a mixed record who sometimes felt compelled to enforce the law. Early in his reign he suffered so much criticism from his prime minister, Han Xiu, that he lost a lot of weight. When someone asked why he did not remove the critic, he replied, "Although I am getting emaciated, our state will get fat.... I use Han [Xiu] for the sake of our state not for my own good." (67) Later, after the avaricious Li Linfu became prime minister, Xuanzong began to assert his will, not always according to the law. For example, he pardoned the mutinous general An Lushan whom many believed, at least retrospectively, should have been sentenced to death. Li and Xuanzong nonetheless enforced the law in some cases. When two young men avenged their father's execution at the hands of a censor by killing the censor, many officials favored pardoning the sons in light of their filial piety. But Li Linfu argued that failure to prosecute would result in a clear violation of the law, and Xuanzong agreed. He invoked the example of the legendary model official Yu, who had overlooked the sage ruler Shun's execution of Yu's father and had accepted an appointment to his late father's post in river conservancy. He announced that, "[o]ur state enacts laws to prevent killing" (68) and ordered the two young men beaten to death. (69) This case starkly reveals the logical contradiction in the death penalty--state killing to discourage people's killing--that would remain unaddressed in China until the late twentieth century (if then). In addition to enforcing the law in such cases, Xuanzong and Li Linfu arranged for the last rigorous revision of the Tang Code that would become the main basis of Chinese law for the next 600 years. (70)

After the An Lushan rebellion (755-62 CE), most Tang rulers fell short of their forebears' standards of statesmanship. Even mediocre rulers, however, continued to respect the ideal of the rule of law. One relevant institution was the censorate which typically included bright young scholars who were expected to criticize wayward rulers as well as corrupt officials. (71) Under Xianzong (805-820 CE) there was a debate at court between those who believed that censors' criticism of rulers would create disharmony at court and those who believed that censors who failed to admonish their rulers "were not faithful because they permitted them to do evil things." (72) Although Xianzong's opinions are unclear, he presided over the debate and maintained a liberal spirit at his court. During this time the idea that the law should prevail over personal feelings was so widespread that women who were not usually expected to voice their views on such matters also pledged their support. In the reign of Wuzong (840-46 CE), for example, a prefect who had beaten to death a junior official for a minor offense was upbraided by his (the prefect's) mother in front of his troops. According to Sima Guang, she exclaimed: "The son of heaven gave you the authority to govern this region; how could you substitute your personal pleasure for state law and kill innocent people?" (73) Unfortunately Sima did not record the upshot of this case. Although Tang rulers were arguably less given than Han rulers to believing in the interaction of heaven and humans, Wuzong responded to a serious drought by curtailing his own appetite for food, music, and sex. He also ordered his officials to make sure that no prisoners were being unlawfully punished, a standard explanation of unusually severe weather. (74)

Xuanzong (r. 846-59 CE) presided over an era of relative prosperity and became known as a "little Taizong," a reference to his much admired ancestor. In one case, when the magistrate of the capital, Wei Ao, arrested a favorite servant of the ruler's uncle, the ruler intervened on his behalf. Wei agreed to suspend the death penalty but he insisted on flogging the criminal with the heavy bamboo. Partially appeased but also gently reproved in the name of the law, Xuanzong reportedly admitted to Wei that he felt guilty for having waived the law to please his uncle. (75) Later, when one of his favorite musicians, Luo Cheng, was arrested for murder, other members of the troupe pleaded for a pardon so that he could continue to entertain the ruler. But Xuanzong admonished them: "You are thinking only of the skill of Luo, but I am thinking of the laws of Gaozu and Taizong." (76) To punish Luo and teach a lesson to others, he had the errant musician beaten to death. (77) Although the punishment seems brutal by any standard, the spirit of the rule of law had caused the ruler to regret not having enforced the statutes in the previous case and to enforce it strictly in this one.

IX. FIVE DYNASTIES, TEN KINGDOMS, LIAO, XIXIA, SONG, AND JIN: ANOTHER PERIOD OF DISORDER ACCOMPANIED BY CONCERN FOR THE RULE OF LAW

After the fall of the Tang, China went through another long period of division. This period was arguably more similar to that which had followed the fall of the Zhou than to that which had followed the fall of the Han. During this period, called the Five Dynasties and Ten Kingdoms (907-960 CE), successive dynasties reunified the north but were unable to recover the south that remained divided among contemporaneous kingdoms. Evanescent and/or regional rulers established authoritarian regimes little concerned about--or at least successful in--establishing the rule of law. During the Tang, capital cases had been routinely forwarded to the ruler for decision, but now, according to one scholar, "local military governments began to execute criminals arbitrarily." (78) The Liao (907-1126 CE) state in the northeast adopted the Tang code to govern former Tang subjects but introduced harsh new punishments (including death by slicing) that were customary among the Khitan. Nonetheless Shenzong (r. 982-1031 CE) extended elements of a revised Tang code to certain groups of Khitan and gained a reputation as a "just emperor." Because he became arbitrary when drunk, "he instructed his ministers not to act on any decision he had taken when under the influence of liquor but to make him review his decision the next day." (79) The Liao adopted other measures to maintain the identities of--and harmony among--various nationalities. For example, it banned Khitan sales of slaves to the interior and Chinese sales of metals to the frontier. (80) Meanwhile in the west, the XiXia state (1131?-1237? CE) adopted a complete code in the Tangut script that has survived. It focused on regulating the hereditary transmission of office and rank that constituted the principal means of staffing its administration. (81)

Zhao Kuangyin, the military officer who founded the Song (960-1279 CE), established a centralized, civilian administration in an effort to extend control over the entire realm inherited from the Tang. Ruling as Taizu (960-976 CE), he adopted the Tang code and generally lightened the punishment enforced in that period, except for death by slicing that was informally carried over from the Liao for use in special cases. He encouraged those under sentence of death to bring their cases to the capital, and he spared most defendants, causing some to say that he was too lax. Above all, Taizu gained fame for enjoining his descendants never to kill officials on pain of punishment from heaven. (82) But if Taizu himself was lenient, he could not keep subordinates from enforcing the law strictly. In one case, he warned soldiers being sent to an army led by General Guo Jin that they should obey the law because otherwise Guo would surely have them killed even if he, the ruler, wanted to pardon them. (83) Taizu's son and successor Taizong (r. 976-997 CE) also yielded to his subordinates when it came to enforcing the law. When Taizong's favorite doctor Chen Liyong was charged with homicide and other crimes, Taizong wanted to let him off with light punishment. The Prime Minister Zhao Pu, however, insisted that the murderer should be punished severely in accordance with the law. Taizong then asked Zhao if he, as ruler, could not pardon whomever he wished. Zhao replied: "If your majesty refused to execute Chen, that violation of the law would have more serious consequences than his execution would." (84) Taizong finally yielded and allowed his officials to punish Chen according to the law. (85) In another case, officials successfully refused Taizong's request to tailor an amnesty to exclude a suspect he happened to dislike. (86) In one famous incident, a woman was forced to marry while she was still in mourning for the death of her mother, and she expressed her anger by killing her husband. The case might have been quickly solved because it involved one of the ten abominations, but it became highly controversial because it required a choice between respect for a parent and loyalty to a husband. It occasioned more than a year of debate in the capital before it was finally resolved--with the ruler following the consensus among his officials. Given this experience, the tendency of Huizong (r. 1101-1125 CE) to intervene in court cases and decide them by decree was regarded as an "unfortunate aberration from generally accepted imperial practice." (87) On balance, "this dynasty is known for the degree of respect paid by emperors to their ministers." (88)

The Song is also famous for allegedly elevating the status of the ruler over that of his officials, but there were other ways in which that polity departed from the Tang. The Song never attained its goals of establishing authority over all of the territory inherited from the Tang, much less extending comparable influence over the surrounding states of East Asia. As a result, perhaps, it adopted a different style of the rule of law, filled with tensions reminiscent of those of states in the Spring and Autumn and Warring States periods. For example, concerned about internal as well as external security, the Song prohibited private individuals from copying or printing any provisions of the codes. (89) At the same time, the Song showed increased willingness to alter the statutes. When one official warned Renzong not to change the laws inherited from his predecessor, another noted that only one-tenth of Taizong's laws had been retained by Zhenzong (997-1022 CE). Echoing a view of the early Legalists, this official asked: "If complicated laws can be summarized to make them more convenient for people, what is wrong with that?" (90) The Song quest for greater wealth and power as well as morality and justice resulted in periodic reforms including those of Wang Anshi under Shenzong (1068-1085 CE). Wang's "New Laws" emphasized educating the literati in the laws and publicizing laws among the people. (91) Even a chief opponent of Wang's reforms, the historian Sima Guang, regarded "clarification of punishments and rewards as essential to government." (92)

The Song approach to law and order exhibited other contradictory features that echoed distant pasts, reflected current trends, and adumbrated later developments. On the one hand, the Song administered more individual and general amnesties than any other dynasty in Chinese history. For example, in 1085, the last year of Shenzong's reign, only ten percent of the 264 cases of felony forwarded to the capital for review actually resulted in death. At the same time, the Song seems to have gone beyond the Tang in requiring confessions before cases could be resolved. Whether intended to protect the accused from false charges or to further the process of personal redemption, the intensified demand for confessions must have resulted in more torture of obstinate and/or in some cases innocent defendants. One saving grace was that defendants could still repudiate their confessions up to the moment when their sentences were executed, automatically precipitating a reinvestigation of the facts (though not the procedures) of the case. A second palliative was the continuing widespread belief that confessions exacted by torture reflected poorly on the quality of the officials who obtained them. Another seeming contradiction in the Song rule of law was the relative secrecy of trials, resulting in a reduction in public accountability that was inimical to justice, combined with the exclusion of the police from the judicial process limited their ability to push for convictions to justify their arrests and increase their salaries. Two other, more consistent, features of the Song judicial system, again reminiscent of the Spring and Autumn/Warring States period, were the municipal government's licensing of scriveners to represent the non-literate in court, and renewed emphasis on civil and commercial law combined with surprising tolerance of prolonged litigation. (93) These practices appear to represent a return to greater acceptance of legal professionalism and civil litigation, an acceptance that would reappear under similar conditions in the early twentieth century.

Events after the Northern Song dynasty further attested to the exercise and development of the rule of law. In 1126, the Song yielded its heartland to the Jurchen and retreated to the south, where it established a rump government that became known as the Southern Song (1126-1279 CE). The first ruler of the Southern Song, Gaozong (r. 1127-1162 CE) is infamous for having presided over the death in prison of the general Yue Fei who had resisted the Jurchen advance and advocated recovery of the north. But even Gaozong is supposed to have demonstrated some sense of justice (as well as of economy) in warning his officials that the upper class would have to reduce its appetite for copper money if the state was to be able to enforce its laws against counterfeiting copper coins. (94) Although corrupt and ineffective leadership drove many of the Southern Song elite into local activities, certain rulers continued to try to uphold public interests over private ones. For example, when Xiaozong (r. 1163-1189 CE) learned that one of his relatives had been appointed an official in eastern Zhejiang without passing an examination, he exclaimed: "How can I violate the public law (gongfa) on behalf of a relative?" (95) He instructed his court to report such cases immediately in the future. (96) This incident may lie behind the Song History's (probably hyperbolic) praise of Xiaozong for "never making legal judgments on the basis of his personal will." (97) The Southern Song also gave rise to the thinker Zhu Xi (1130-1200 CE) whose synthesis of Northern Song ideas resulted in an emphasis on the concept of pattern (li). This concept was a Ruist and Daoist response to a Buddhist notion that would result in vigorous debates about the role of law in society and would eventually provide a fresh foundation for theorizing about the rule of law. (98)

The absence of the Song Dynasty in the north did not result in a vacuum in the rule of law. Meanwhile the Jurchen in the north had established a state, the Jin (1115-1234 CE), which modified the Tang code to take account of Jurchen culture. It imposed heavy punishments for minor offenses (e.g., execution for theft), restored harsh penalties (such as cutting off ears and noses), reinforced patriarchal authority (although also allowing sons to set up households while their fathers were still alive), and legitimated levirate marriages (regarded by most Chinese as incest). The Jin code also reflected growing commercialization as fines paid in silk in the Tang period were increasingly paid in cash. The Jin ruler Shizong (r. 1161-1189 CE) oversaw the compilation of a comprehensive code of 1190 articles that finally appeared as the Taihe Code in 1201. Shizong remained a Jurchen leader but he also accepted a Legalist notion of the rule of law. According to the sources, he once told his courtiers, "I always treat Jurchen well. However, if anyone of you takes bribes, even if he is my relative, I will not pardon him." (99) A ruler who enforced the law against his own family and court retainers even in a time of division was well on his way to governing according to the rule of law.

X. THE YUAN: ANOTHER AUTHORITARIAN CENTRALIZING POLITY

The Yuan dynasty (1279-1368 CE), like the Gin, was a highly authoritarian and even oppressive polity that nonetheless unified and pacified China after a long period of division and warfare. In recent years the Yuan, again like the Gin, has been reevaluated in light of new materials and perspectives. The case has increasingly been made that it established a rational and even lenient legal system that created a modicum of law and order--perhaps even a kind of rule of law--in an unprecedentedly large oecumene. (100)

One charge against the Yuan was that it never formally promulgated a single, comprehensive, and written legal code, thus opening the door to the use of force majeure in a fundamentally lawless society. It is true that the Yuan was never able to agree on--and thus authorize--a uniform code, but it did compile a whole series of unofficial codes that took account of changing needs over time and space. The original Mongol leader, Cinggis Qan (r. 1206-1229 CE), governed in accord with an oral, customary code, the Jasag, that was promulgated by his elected successor Ogodei (Taizong, r. 1229-1245 CE). Taizong and his immediate successors relied increasingly on the Jurchen Taihe Code as they gradually took over the Jin realm and extended their reach to the Southern Song. With the formal proclamation of the Yuan in 1271 and its final triumph over the Southern Song in 1279, Qubilai (Shizu r. 1260-1294 CE) authorized his officials to compile a revision that appeared as the Zhiyuan New Code in 1291. This code was never formally promulgated nor was its complete text transmitted to later age. A recent reconstruction of it, however, reveals that it emphasized administrative over penal law, included both Mongol and Han legal practices, and "was observed throughout the dynasty." (101) Subsequent codes of 1307, 1321, 1332, and 1346, discreetly incorporated portions of earlier codes, including that of the Tang, and added new legislation as it appeared in the Yuan. (102)

More significant than the existence of codes was their content. The Yuan rule of law appears to have been harsher than its predecessors in the punishments it legitimated and imposed. Its codes for the first time formally incorporated death by slicing for the most serious crimes, such as treason, a provision perpetuated by subsequent dynasties. The Yuan also resorted to certain other extra-judicial punishments, such as the quartering and pickling of the corpse, for extraordinary (especially political) crimes. In other ways, however, the Yuan rule of law was arguably more lenient than in some ages in the past and in the future. According to the Yuan History, only 135 offenses were subject to the death penalty, about half the number during the Tang (233), Song (293), and Ming (282). Even the strongest Yuan rulers maintained the inherited Chinese norms in handling capital cases. As early as 1260, Qubilai instructed his officials that any case involving a capital offense had to be thoroughly reviewed before the final judgment; after 1271, he often personally reviewed cases and reduced sentences. In 1287, when 190 persons were to be put to death, he admonished his officials: "Prisoners are not a mere flock of sheep. How can they all be suddenly executed like this? Let them instead be enslaved and assigned to pan gold with a sieve." (103) Mentored by Buddhist monks, Yuan rulers continued to proclaim many amnesties, so many that some Chinese officials criticized them for being lax. As a result of these measures, during thirty-seven years between 1261 and 1306, when there are records, an average of only seventy-four people per annum were put to death by the judicial process. Whether strict or lenient, Yuan rulers continued to rely on the laws to govern. For example, Yingzong (r. 1321-1324 CE) warned his intimate servants to be careful because he would not pardon them if they violated the law. When one of his loyal officials committed a crime, Yingzong refused to pardon him, saying: "The law was made by my ancestors; it is not a private thing. Although Barjisu has served me for a long time, he must be punished today in accord with the law." (104) Taiding (r. 1324-1328 CE) encouraged officials to keep him informed about legal issues because, he explained: "if all state affairs are conducted in accordance with the law, our state will be stable. Otherwise, our people will face a miserable situation." (105)

The Yuan, like previous polities, addressed the issue of how to apply its laws to the various social strata and ethnic groups under its authority. Most previous polities had thought in terms of four ideal occupational groups (scholars, farmers, artisans, and merchants) and two basic divisions of society (rulers and ruled), all the while dealing with more autonomous social hierarchies (based on heredity, wealth, power, etc.). The Yuan thought more in terms of what we might call four "ethno-classes" (Mongols, Central Asians, Han, and Southerners) and numerous hereditary occupational groups (military, artisanal, Ruist, etc.) and ethnic groups. As in the case of codes, the Yuan never formally and systematically established these hierarchies, but it adopted laws that effectively constructed them, endowed them with duties and privileges, and allocated to them various degrees of judicial autonomy. Furthermore, the Yuan attempted to apply the laws so as to achieve a modicum of political and social equity. In brief, the Mongols held military and civil authority, the Central Asians had access to commercial wealth, the Han staffed clerkships (including ones specializing in law), and the Southerners were free to pursue wealth and preserve culture. The accumulation of wealth had legal consequences because, during the Yuan, convicted criminals could increasingly use money to recompense victims in addition to (or even in lieu of) receiving the standard punishments. Hereditary status groups and ethnic groups, although hardly equal, were allotted a considerable degree of autonomy in managing their legal affairs. (106)

Despite its success in reunifying and to some degree recentralizing China, the Yuan, like the Qin before it, effected a fairly draconian form of the rule of law and made heavy demands on the population for resources to conduct its frontier wars. It therefore lasted only a century and was overthrown in popular uprisings.

XI. THE MING: ANOTHER POPULIST ORDER

The Ming dynasty (1368-1644 CE) that replaced the Yuan was in good measure modeled on and resembled the Han populist order. The founder, Zhu Yuanzhang (1328-1398 CE), began life in the late Yuan as a poor farmer in the central plain whose family was decimated by famine. He rose to power by joining a White Lotus sectarian rebellion, by winning the support of a Huai valley literatus Li Shanchang who urged him to model himself on the plebian founder of the Han, and by listening to the advice of Liu Ji and other Jiangnan scholars who developed a Ruist rationale for law. He defeated rivals less attuned to the needs and aspirations of the people and led a broad rebellion or even revolution against an increasingly lax and corrupt Yuan state. During his Hongwu reign (1368-1398 CE), Zhu, known to history by his temple name Taizu, adopted policies that reflected this personal experience and shaped the entire Ming polity. (107)

Like their Han predecessors, Taizu and his advisors sincerely believed in heavenly signs and earthly prodigies and did not simply manipulate them to further their political interests. Imbued with Song Ruism and following the contemporary trend to unify Ruism, Daoism, and Buddhism, they aspired to establish a rule of law based on "heavenly pattern and human feelings." (108) Believing that the Yuan had fallen because it paid insufficient attention to law, they drafted a new legal code and promulgated it immediately upon taking power in 1368. They then compared the draft with previous codes, including that of the Tang, and revised it in 1372, 1376, and 1383, producing, finally, the Great Ming Code of 1389. Organized according to the Six Ministries (personnel, revenue, rites, war, justice, and public works), the code was notable in allowing all five of the standard punishments (death, exile, the congue, and flogging with the large and small stick) to be commuted to the payment of fines in cash, paper money, or labor. It protected women from unwarranted withdrawals from betrothal, from incarceration and exile, and from being treated as chattels by their husbands. It extended assistance to mortgagees, debtors, and small merchants who were threatened by various forms of economic monopoly. Between 1373 and 1395, Taizu also saw to the drafting of the Imperial Ming Ancestral Instructions that incorporated changes in the structure of the government over the course of his reign and established guidelines for later generations. Taizu and his advisors believed that he was empowered by heaven to teach the people. He warned that good deeds would ultimately be rewarded by heaven while bad deeds would eventually be punished. Believing that the cosmic pattern (tianli) could be realized through law, Taizu oversaw the promulgation of many other regulations to control the activities of palace women and eunuchs, censors and princes, students and elites, troops and commoners. In sum, he was "one of the emperors in Chinese history who promulgated the most laws." (109) Many of those laws continued in force through the Ming period and influenced the law codes of other societies of East Asia, including particularly Korea and Japan. (110)

Given Ming Taizu's emphasis on law as the key to ordering a moral society, he naturally became personally involved in trying many individuals accused of violating the law. In 1370 he banned the White Lotus sect that his advisors considered "heterodox" and that could serve as a nucleus for future rebellions. In 1376 he prosecuted many officials who turned in blank tax forms, accusing them of cheating the state out of its rightful revenue. By 1380, he came to suspect that his long-time lieutenant, Hu Weiyong, now serving as prime minister, had abused his position to protect criminal members of his family and had made treasonous contacts with enemies (Mongols and Japanese). He sentenced Hu and hundreds of his supporters to death and the case expanded to include thousands of others. While this case is often cited as evidence of Zhu's paranoia, he believed that he was caught between "violating heaven's mandate and opposing human feelings." (111) Since the case led him to abolish the post of prime minister, it is also cited as evidence of his despotism. But the size of the case may also have stemmed in part from factionalism. Moreover, although Taizu abolished the prime ministership, that post had never guaranteed an effective check on royal authority. Even after eliminating the post, Taizu did not attempt to rule alone but relied on grand secretaries to provide him with advice and assistance. In a fourth case five years later, Zhu prosecuted his vice-minister of revenue, Guo Huan, for embezzling millions of piculs of government grain. During this case, Zhu cited the Daoist text, The Way and Its Power, to the effect that although heaven uses surpluses to make up insufficiencies, men use insufficiencies to make up surpluses. During the 1380's, Zhu issued Grand Pronouncements written in simple and comprehensible language to justify and publicize his decisions in these and other cases. Unlike the Song rulers, Zhu clearly believed that laws and court cases should be made widely known to the public. During his reign, persons convicted of crimes could have their sentences mitigated if they could prove they possessed a copy of the Grand Pronouncements. In 1393, Taizu mounted a fifth major case, against Lan Yu, another early supporter and a leading general, who was accused of arbitrarily killing a commoner and raping a Mongol princess. Once again, the case ultimately cost the lives of thousands, leaving the Ming founder, like his model the Han founder, bereft of most of his early supporters. But Taizu continued to take his case to the people, issuing placards recording his rulings and disseminating illustrated copies of sacred instructions for the edification of all. (112)

If Ming Taizu demonstrated commitment to the rule of--as well as by--law, he also, like Qinshihuangdi, violated the law in his campaigns against official corruption and elite irresponsibility. In 1382, he formally organized an Embroidered-Uniform Guard outside of the regular bureaucracy, ignoring a basic Legalist precept to govern only through regularly constituted organs of state. Although he learned from the Han experience and restricted the roles of eunuchs, he violated his own regulations by employing eunuchs in his guard. The guard, moreover, maintained its own prison where warders reportedly used non-statutory instruments of torture, such as branding irons, finger presses, and skull crushers. The Ming code formally prescribed death by slicing in cases of rebellion, but Taizu illegally used it to punish lesser crimes, such as making false accusations. Taizu sometimes recognized that he had violated the law, but he persisted in doing so anyway. Annoyed by the constant carping of a censor, Wang Pu, Taizu ordered him executed and then gave him a chance to recant his views. When Wang refused, saying he must be guilty if the ruler had decided as much, Taizu became even angrier and ordered him taken away to be killed. He simultaneously shouted to a court diarist: "Let it be recorded that on this day the emperor murdered the guiltless censor Pu." (113) Toward the end of his reign Taizu recognized the damage inflicted by his reliance on such extra-legal measures. He explained this behavior as an extraordinary response to unusual times, and he instructed his successors not to follow his example. But the embroidered uniform guard persisted and grew even stronger in later reigns, and the extra-legal punishments remained an option for Ming rulers. More to his credit, perhaps, Taizu also sometimes honored human feelings over heavenly pattern. For example, in one case, a common criminal should have been beaten and exiled according to the law, but, when a son offered to take his place, Taizu pardoned the father to reward him for inculcating filial piety in his son. While such interventions might be interpreted as the rule of man over the rule of law, Taizu had some reason to regard it the rule of law in the Ruist mode as against the rule of law in the Legalist style. (114)

The Ming founder's mixture of the rule of and by law with violation and bending of the law set the tone for the rest of the dynasty. When Taizu's eldest son and presumed heir died young, his young grandson succeeded to the throne. Another of Taizu's sons, Zhu Di, then seized power in a coup d'etat against his nephew. Zhu Di became notorious for prosecuting thousands of people, including the prominent Ruist Fang Xiaoru, whom he punished for refusing to accept his legitimacy. But two anecdotes demonstrate that Zhu, whose reign name was Yongle (r. 1402-1424 CE) and temple names Chengzu and Taizong, also shared his father's animus toward official corruption and his sympathy for the people. In one case, he ordered the execution of an official who had embezzled foodstuffs. When the ministry of punishments reported that the statutes did not call for such harsh punishment, Zhu replied: "[My] edict was mistaken because I made it in anger. Punish the man in accordance with the law. In the future, requests for the death penalty must be made five times before they are acted on." (115) Ming Taizong thus recognized the need to punish corruption according to the law, and he improved on Tang Taizong by requiring five reports before imposing capital punishment. In another case, the grand court of revision wanted to punish a merchant for using a non-standard steelyard in his transactions. Zhu asked if a placard informing people of the rule had been posted. When the court replied in the negative, Zhu observed that it was "inhumane" to punish people for violating regulations in which they had no choice. He ordered the defendant released. He demonstrated similar concern for commoners when he ordered special inspections and assizes during the summer to insure that prisoners were not unduly suffering from the heat." (116)

During the rest of the Ming dynasty, a general decline in the personal I vigor and public authority of rulers combined with the increased activity of censors and other officials tended to result in less strict, and often less efficient, governance. (117) Renzong, who reigned for only one year (1424-1425 CE), told his ministers that if he did not enforce the law properly they should object persistently and "it would not be difficult for him to correct his error." (118) He said that he sympathized,
   with the people who have been forced to confess due to officials'
   misunderstanding of the meaning of punishment. From now on,
   decisions on punishment must be in accordance with the law. If I
   punish a person more harshly than the statute allows because of my
   personal antipathy, the Judicial Office should remonstrate with me
   persistently. If, after receiving five reports, I still do not
   yield, the judicial officials should report along with the three
   dukes and all the ministers of the court until I yield. (119)


By the late sixteenth century, the Chief Grand Secretary Zhang Juzheng found the Ming court so lax that he attempted to tighten it up in line with Legalist thought and the Gin and Yuan models. But that initiative was only temporarily effective. It was followed by the long Wanli reign (1572-1620 CE) during which the ruler refused to govern to protest his officials' unwillingness to accept the son of his favorite concubine as heir apparent. In the end he had to yield to his officials who invoked the customary law of the ruling house. Even if the Ming rulers' authority had been absolute in theory (and we have argued that it was not), it was certainly not so in fact. (120) In the late Ming, it was not royal absolutism but royal weakness combined with factionalism that led to the worst abuses of legal authority. (121)

XII. THE QING: ANOTHER ELITIST ORDER

Although there is a trend in the United States to emphasize the "Manchuness" of the Qing "Empire" (1644-1911 CE) (122) it is well known that the Qing regime retained much of the Ming code. Indeed, thirty to forty percent of the statutes in the Qing code of 1740 were unchanged from the Tang code of 653. (123) Therefore, in an analysis of Qing approaches to the rule of law, comparisons and contrasts between the Qing code and those of the Tang and Ming should be at least as instructive as comparisons and contrasts between the Qing code and those of earlier so-called "conquest" dynasties (such as the Liao, Jin, and Yuan).

The basic statutes of the code remained fairly constant throughout the Qing dynasty, as during the Tang and Ming. However, while the Tang and Ming codes had been quite manageable, the Qing code ultimately became so large and complex that officials found it difficult to use. New laws, consisting primarily of proposals from officials approved by rulers supplemented by official commentaries on the statutes, were entered into the code as sub-statutes (li), which increased in number from 449 in 1646 to 1,892 in 1870. As in the past, the sub-statutes kept the code up to date and could take precedence over the statutes. (124) While the Tang and Ming codes had been quite manageable, the Qing code ultimately became so large and complex that officials found it difficult to use. That was contrary to the Legalist emphasis on simplicity, but it was consistent with trends in many "modern" politics. (125)

In general, Qing laws tended to be harsher and more patriarchal than those of the Tang and Ming. Crimes of rebellion and treason continued to be severely punished, often by slicing for the principals and collective responsibility for accessories. Such penalties were meted out in the famous Zhuang Tinglong case in the seventeenth century. In the eighteenth century, castration, abolished as a formal punishment under the Han and only occasionally practiced thereafter, was formally reintroduced as a punishment for rebels. As rebellions proliferated in the nineteenth century, other mutilations were imposed. (126) A larger number of relatives of rebels were punished in the Qing than in the Tang and Ming, now with no mitigation on account of age. (127) The Ming and the Qing were more supportive of patriarchy than the Tang in that they reduced the penalties for parents who killed their children and for men who took second wives (not concubines, who were legal). They also permitted men who found their wives in flagrante delicto to kill them without fear of punishment. (128) The Qing put new emphasis on female chastity by requiring women to provide more evidence of resistance to prove rape and by forbidding parents to compel widowed daughters to remarry. (The former policy, of course, was more clearly and uniformly inimical to women than the latter). (129) While the Qing rulers were less strict than the Tang in punishing violations of mourning rites (leaving the matter to individual clans to sort out), they reinforced the age hierarchy among the living by holding children liable for parents' suicide "where that suicide could be attributed, even in the loosest possible way, to unfilial conduct," (130) and by meting out harsher penalties for filial disobedience. (131)

The Qing was more insistent on confessions and more tolerant of torture than the Tang had been and than contemporary Europe was. It was widely assumed, though not statutorily required, that confessions were necessary to close most criminal cases that did not involve the old, young, or disabled. As in the Tang and Ming, confession was not regarded as evidence of guilt but, unlike in the Tang or in contemporary Europe, refusal to confess was also not grounds for acquittal. The Qing seems to have emphasized confession for other reasons: to protect the innocent, to get the "true facts" (assumed to be best known to the defendant), to start the process of rehabilitation, and to reaffirm the legitimacy of the state. The emphasis on the need for confession combined with the refusal to acquit in its absence, however, probably led to more use of torture than in the past. On the other hand, the code continued to sanction torture only indirectly by imposing limitations on its use: torture was permitted only after obtaining independent evidence of wrongdoing, only in the judicial process, only with certain instruments, etc. The code also specified penalties for official violation of these restrictions, for torture resulting in death, for the coercion of false confessions, and for tampering with confessions. As in the past, the best and most highly respected Qing magistrates avoided torture and depreciated it. Some regarded it as a last resort, others as an obstruction of justice, and still others as cruel and unlikely to yield any positive results. One continuing check was that confessions could be repudiated and/or challenged by relatives at any time, requiring a reinvestigation of the facts (though not of the procedures) of the case. Following a Qin precedent, Qing China remained "unique [in the world] in allowing for reduction or complete remission of punishment if the offender voluntarily surrendered and confessed before the offense was known to the authorities." (132) For all its obvious negative effects, the emphasis on confession may have shown more respect for the offender than did the "traditional" English practice of barring the suspect's testimony as unreliable. (133)

While there is a tendency in the People's Republic to continue to regard the high Qing as a time when the "imperial system" initiated in the Qin "reached its peak of effectiveness," there is increasing recognition that Qing rulers, like many of their predecessors, actually shared their legislative as well as judicial and administrative authority with officials. (134) The most careful comparison of the legal regimes of the Tang, Ming, and Qing reiterates the cliche that the ruler was "above the law," but it puts the phrase in quotation marks, as if to raise doubts about its meaning. (135), In fact, MacCormack acknowledges that, as we have seen for earlier periods, "The emperor did not have an unfettered discretion to act as he pleased, but was very considerably circumscribed by precedent and expected to follow the 'right way to rule' as established by earlier dynasties or his own ancestors." (136) "On most occasions he simply accepted the Board [of Punishments]'s recommendation" regarding the adoption of sub-statutes; and he normally modified sentences only "in accordance with well established principles...." Local officials, too, were to judge cases strictly according to the law. (137)

Similarly, MacCormack notes that "the principle of equality before the law did not operate" during the Qing, but we may add that the ideal had not been realized in earlier ages and it would not be in later times, either in China or elsewhere. More importantly, perhaps, the principle of equity continued to be observed. For example, the ruler's permission was required before a judicial official could investigate imperial relatives, high officials, and a few other eminences; the governor's permission was required before a magistrate could investigate provincial or metropolitan graduates, and so forth. But since the political and social hierarchies of the Qing were commonly thought to be based on merit, that is, on personal achievements as well as on life chances, such unequal treatment before the law may well have been widely accepted as fair. The Qing hierarchies were also leveled by certain restraints on aristocrats, officials, seniors, and men. The Manchu banners were increasingly bureaucratized; officials were subject to removal and, increasingly, to administrative punishments; marriages between free and servile persons were punished less severely than in the Tang; youths whose marriages were not properly arranged might assert their preferences; and divorce by mutual consent was recognized (unlike in Anglo-Saxon law until very recently). (138)

Individual Qing rulers recognized their duty to rule impartially according to the laws. Nurhaci, the Jurchen leader who founded the Later Jin in 1616, and was later given the temple name Taizu, admired Zhuge Liang (of the Three Kingdoms period) for his strict implementation of the law and believed that the Ming was declining because it lacked "clear laws." He consulted with subordinates in deciding legal cases and warned nobles and women alike to live up to their respective dao or suffer punishment according to the law. (139) Nurhaci's son, Hong Taiji, who established the Qing in 1636 and was known to history as Taizong, called upon Manchus to treat the Han as equals, and warned his princes: "Even I always have to respect the law; how dare you violate it?" (140) While Nurhaci and Hong Taiji were aware of Zhou and Tang models of statecraft, Hong Taiji's brother, Dorgon, who assumed authority as Prince Regent in 1643, explicitly compared himself--and was compared by others--with the Duke of Zhou. His nephew Fulin, the youthful Shunzhi ruler (r. 1644-1661 CE), was instructed to follow the example of Tang Taizong. (141) Just as Zhou Gong took over some Shang rules, Dorgon adopted much of the Ming code. Just as Tang Taizong tried to govern in accord with the law, Fulin insisted on following the code in prosecuting corrupt officials. (142)

The fourth Qing ruler, Xuanye, who ruled as Kangxi (r. 1662-1722 CE), alluded clearly to the founders of the Zhou when he stated that "[t]he rulers of the past all took reverence for Heaven's laws and reverence for their ancestors as the fundamental way of ruling the country." (143) He echoed Tang Taizong when he declared that "a criminal who has been executed cannot be brought back to life...." Kangxi carefully cultivated his own image of Ruist humaneness, remarking that his most distasteful task was "giving a final verdict on the death sentences that are sent to me for ratification after the autumn assize." He also embraced the Legalist idea that the ruler's "intention must be to punish in order to avoid the need for further punishing." (144) Kangxi worked closely with his grand secretaries and their staff to review capital cases and regularly spared up to a third of the defendants he reviewed. He personally intervened in cases of rapacious high officials and local elites who were so powerful that the responsible officials were afraid to prosecute them. He did not hesitate to overrule lenient subordinates to impose harsh punishments, including execution by slicing, in political cases involving court rivals, Ming loyalists, ethnic minorities, and regional rebels. When his heir apparent behaved bizarrely, Kangxi blamed him for "violating the state law" and removed him from the succession. He expressed his aspirations and intentions if not his actual performance when he stated in his last will and testament that he had "never punished a person unlawfully and would not pardon his own servants if they broke the law." (145)

As a result of Kangxi's indecision about his heir apparent, Yongzheng (r. 1723-1735 CE) acceded to the throne only after a bitter power struggle with two of his brothers but he ruled with the assistance of a third. Coming to power in middle age, the new ruler was fully familiar with the system and proceeded to raise it to a high level of efficiency. Combining a fundamental Confucian idea of the ruler as model with a Legalist emphasis on the law, he announced: "If I, a person placed above all others, want the law to be enforced, I must first implement it myself and then other people will follow." (146) After arresting the powerful official Nian Gengyao on charges of plotting a rebellion, Yongzheng reportedly wept when telling the court why he would have to punish him harshly: "To govern the state well, I have to bestow rewards and punishments fairly. If I ignore the law to pardon such rebels as Nian Gengyao, how will I be able to publicize the laws and win the hearts of the people." (147) Yongzheng was particularly interested in using state authority to promote political and social equity. He bureaucratized the banners to rein in aristocratic independence, limited officials' opportunities for the commutation of their sentences to promote "justice and fairness," raised public salaries and outlawed private gifts to curb bureaucratic corruption, enforced the tax and rent laws to make state burdens more equitable, and eliminated the category of mean people to render society more open. (148) Although undeniably autocratic, Yongzheng recognized the right and duty of ministers to criticize the throne. In one celebrated case, when a commoner, Zeng Jing, rashly called on a provincial official to lead a rebellion against the Qing on the grounds advanced by the Ming loyalist Lu Liuliang that it was an "alien" dynasty, Yongzheng had Zeng arrested and forced to confess to the conspiracy. But the ruler also took great pains to persuade Zeng that the Qing was no more alien than the Zhou, and he actually compiled and published a book with his captive to that effect. Yongzheng had the scholar Lu's corpse dug up and his family exterminated on the grounds of his elite responsibility, but he allowed the commoner Zeng to return to his home on the supposition that he had since been educated. (149)

Benefiting from Yongzheng's decision to make the succession secret, his son Hongli assumed the throne in an orderly fashion that set the tone for the long Qianlong reign (1736-96 CE). (150) Qianlong, to be sure, could be just as strict as his father and he was less concerned with equity. Eager to uphold the Ruist ideal of filial piety, he had Zeng Jing rearrested and executed for daring to conspire against his (Qianlong's) father (Kangxi). But at least during the early part of his reign, Qianlong demonstrated moderation in his effort to manage the bureaucracy. Downplaying the criticisms of censors, who were widely held responsible for excesses that contributed to the fall of the Ming, and discounting the secret reports of other officials, who often cited unverifiable rumors to impeach others, he relied mainly on regular officials to submit public memorials indicting corrupt subordinates. In 1757, for example, he learned that the governor of Hunan had protected a former finance commissioner who had been charged by a former governor, Chen Hongmou, with stealing over three thousand ounces of silver from a fund meant for famine relief. The new governor believed that Chen had had a personal grudge against the finance commissioner, and so had allowed the accused to return the funds. The governor had then postponed punishment on the basis of a statute of 1717 that authorized the reinstatement of officials who had "borrowed" money from the state and returned it within a year. Qianlong, however, admired the former governor Chen and decided that the new governor had stretched the meaning of the statute that had applied only to funds transferred from one state organ to another. He therefore had the corrupt finance commissioner executed and turned the governor over to the ministry of punishments on the charge of usurping royal authority. The ministry recommended the death penalty. The defendant's position was further weakened by charges that he had been part of an influential bureaucratic faction that had recently fallen from power. Qianlong, however, recognized that he was a capable official who had not personally benefited from the case. He therefore reduced the sentence to exile to a military post in Mongolia and later allowed him to be reinstated in important offices. In this case and others, Qianlong used the law as one tool, not unconnected with politics, "to achieve the end of moral government." (151)

During the Qing, contacts with the world outside of Asia multiplied, raising the question as to how Chinese forms of the rule of law with their limited claims to universality would be reconciled with the legal cultures of Europeans. Earlier Chinese approaches to this issue had been mixed, but the Qing code built on the Ming and asserted jurisdiction over all "aliens who come to submit." (152) While this principle was honored in Kangxi's treaties with Russia, it was compromised in Macao where Portuguese who killed Chinese were permitted merely to recompense the families of the victims and to receive light punishment from Portuguese authorities. During its early years, the Qing allowed British merchants to trade informally, without paying the tribute required of all others, at four ports along the southeast coast. Several resulting conflicts were settled variously, with Qing local officials asserting jurisdiction in some cases, the British in others. In 1759 a British envoy took the "unprecedented (and illegal) step" of attempting to petition the Qing court directly to punish corrupt officials and improve commercial conditions at Canton, to which most trade had gravitated for economic reasons. This initiative backfired, causing the Qianlong court to restrict all foreign commerce to Canton during specified times of the year. In 1784 the Qing attempted to assert its legal jurisdiction in Canton by demanding the handing over of a British gunner who had fired a salute that had killed two Chinese minor officials. Because he had killed two persons and had resisted arrest, Qianlong sentenced him to execution by strangulation. (153)

The British reacted by refusing to turn over any future suspects until tried and convicted by the British themselves. They argued that Chinese justice was arbitrary and corrupt (although they indicated no standards for that judgment), that homicide resulted in almost certain execution (ignoring that amnesties were more frequent and the number of crimes subject to capital punishment fewer in China than in Britain), and that collective responsibility was unacceptable (especially because, in 1784, it had resulted in the Qing taking a hostage and enforcing a commercial boycott). They also claimed that Chinese law was exclusively customary and that since opium trading had existed for a long time it should be considered legal despite numerous Qing edicts outlawing it. Seven subsequent altercations in which Chinese were wounded or killed by British subjects were resolved only by various subterfuges, including unfulfilled promises that the perpetrators would be tried in Britain. In 1821, in an exceptional case, an Italian sailor on an American ship who had killed a Chinese woman was investigated by Qing officials aboard ship, tried by Qing authorities on land, and, after reportedly confessing, was executed by strangulation. After two more cases in which British sailors killed Chinese locals and were spirited away by the British on the false pretense they would be punished in England, there was discussion of establishing a British representative in Canton to try such cases. Although a similar arrangement had worked in Macao, it was opposed by Beijing as a usurpation of its authority (which it would have been) and by London as an infringement of Chinese sovereignty (also true, but so was the opium trade). Finally, the killing of a Chinese by drunken British sailors in July 1839 and the British refusal to turn the suspects over to the Qing, combined with other diplomatic, territorial, and commercial issues, led to the Opium War in the following year. (154)

The Qing state, like the Tang before it, had often refrained from asserting its authority over foreigners who committed crimes against other foreigners on Chinese soil, preferring in most cases to have them tried and punished by their own people. On the other hand, the Qing had always punished Chinese offenders against foreigners swiftly and sternly, and had fully compensated the victims. In six cases of Chinese killings of foreigners between 1781 and 1828, the suspects were all prosecuted and executed in the presence of members of the relevant foreign communities. The British, who had deemed Chinese justice too harsh when applied to one of their subjects in 1784, called for its imposition on a Chinese the following year. In 1828, the Liang-Guang governor-general arrested seventeen Fujianese and charged them with piracy for having killed and robbed thirteen French sailors shipwrecked in Vietnam. The leader was executed by slicing and his cohorts by decapitation according to procedures that the British East India Company described as "deserving of the highest commendation." (155) Unlike the upstart globe-straddling British national empire, more keen on punishing foreigners than on disciplining its own subjects, the long-standing Chinese culture-state was more intent on punishing its own subjects than on prosecuting foreigners.

After losing the Opium War to the British, the Qing was compelled to sign a series of "unequal treaties" in 1842-1843 by which, it accepted, among other things, European and American consular authority over legal cases among foreigners in five port cities. The Qing thus followed the path of the Zhou and Tang in recognizing the different customs of aliens (yizu), but it was also forced to resort to the strategy of weaker states, such as the Song, of sacrificing sovereignty on the frontier in an effort to retain control of the central plain. (156) It was the Qing's relatively weak and declining military capacity, not any misunderstanding of--or disregard for--the rule of law, that led to defeat in four more wars and the opening of over 100 treaty ports during the succeeding six decades. (157) In fact, China continuously worked to establish a rule of law during this time. Even before 1840, Commissioner Lin Zexu displayed skill in his "invocation of Chinese law, British law, international law, and general principles of morality (East, West, and shared) as part of his futile effort to persuade Queen Victoria to bar her subjects from selling opium in South China." (158) Also, even after the Eight Allied Powers' Intervention of 1900 to suppress the Boxer movement, Chinese negotiators showed dexterity in playing "common law and civil law diplomats off against each other for some two decades in their attempt to avoid carrying out treaty concessions imposed by the Western powers" regarding trademark rights. (159) Indeed, the way in which the Western powers used law to reinforce their power advantage actually "weakened those international law arguments" and sent "the message to others that it was futile even to proffer such arguments." (160)

The Western argument for extraterritoriality on the grounds that Chinese law was all penal and not civil, although widely accepted by scholars until recently, is in fact untenable. The Qing code, like its predecessors, provided penalties for violations of most of its provisions, but some of its statutes and sub-statutes dealt with "small matters" (xiaoshi) or, in other words, "civil matters," including such things as relations among family members and the ownership and sale of property. (161) There was also a subset of these matters, including marriage and inheritance, for which no penalties were stipulated, or at least enforced. For example, it was presumed that fathers had the duty of dividing their property equally among their sons, giving rise indirectly to the rights of sons to inherit equal portions of the family property. This legal expectation tended to prevent the formation of large estates and thus to protect the interests of middle and small farmers. Other provisions of civil law, such as the prohibition of the private manufacture of weights and measures or of the sale of substandard items, were often violated and thus lost their force. But they remained the "rules of society" and could be appealed to on occasion. Although there was no distinct body of civil law or civil procedure, such processes were implicit in the Qing code and Qing judicial practice. Archival materials show that "perhaps one-third of a county magistrate's total case load consisted of such cases." (162) Moreover magistrates adjudicated such cases according to the code. Although the principles were not spelled out, they were clear. For example, debtors had an obligation to pay that implied a corresponding fight of the creditor to collect. Qing law, like Chinese law in general, focused more on duties and penalties than on positive rights, but it was not bereft of reference to rights. In fact it recognized individuals' rights "to their persons and property." "Many litigants called on the legal system for protections against violations of the law, with many of the same practical consequences as modern litigants seeking to assert their rights." (163)

By 1901, however, increasing numbers of influential Chinese were convinced that China would never recover sovereignty in the treaty-ports if it did not reform its laws in line with those of Western nations. The following year the Empress Dowager Cixi appointed the jurist Shen Jiaben to undertake the project. Invoking the model of Meiji Japan, Shen advised a two-stage process. First there was a need to update the existing Qing code, most recently revised in 1870; then there was a need to promulgate two new codes, explicitly distinguishing between civil and criminal matters in the Western fashion. Shen examined the origins of the harshest punishments, proclaimed them "inhumane," and advocated their abolition. They included exhibition of the convict's corpse or head that had originated in the Qin, been abolished in the Sui, and reappeared in the late Ming; and execution by slicing that had originated in the Liao, been regularized in the Yuan, and persisted to the present. These punishments, along with tatooing, branding, castration, and collective responsibility were abolished in 1905. The next year Shen invoked Tang practice to recommend abolition of the death penalty for homicide committed in a game, by accident, or in self defense. In subsequent years, the cangue (mobile stocks), torture, banishment, and corporal punishment of all kinds were outlawed and the last was replaced by fines. As a result, legitimate punishments were limited to four: death (by strangulation), exile (for short periods), work (in special houses), and fines (according to the offense). In a quest for greater social equality, the Qing allowed intermarriage between bannermen and others in 1902 and made the two basic social groups equal before the law in 1907. It abolished public slavery, as a punishment for the relatives of criminals, in 1905, and private slavery, including the sale of oneself and of one's children for reasons of poverty, in 1909. In October 1909 Shen presented the revised code to the court as an attempt to "steer a middle course between the old and the new" and noted that it was necessary to "select from the good laws of the Great Unity of the nations East and West" in adopting "the model of the Great Powers." (164) Thus, Shen pushed China to attempt to arrive at a truly universal code even as it imitated the laws of the great powers so as to enhance China's own wealth and power. The revised Qing code dropped twelve percent of the original 387 statutes and forty-five percent of the original 1327 sub-statutes. It thus approached the Legalist ideal of "a perfectly concise, severely systematic set of provisions, clear and comparatively easy to handle." (165) For this reason, and because of continuing reservations about aspects of the new civil code, forty-two statutes and seventy-nine sub-statutes of the revised Qing code served as the basic civil law of China during the last two years of the Qing and the first two decades of the Republic. (166)

XIII. THE REPUBLIC: DISUNION AND ANOTHER CENTRALIZING STATE

The collapse of the Qing in 1911 was followed by nearly two decades of civil strife reminiscent of earlier eras of disunion. That so-called "militarist" or "warlord" era was in turn followed by another two decades characterized by efforts at authoritarian centralization.

The republic (gonghe guo, joint state) established in 1912, was headed by a ruler (zongtong, president) who was to be subordinated to a constitution (xianfa) and assisted by a parliament (guohui) that was itself elected by and responsible to the people. The first president of the Republic, Sun Yat-sen, was elected according to the Provisional Constitution of 1912 and sought to implement the Guomindang (citizens' or nationalist party) ideology of the Three People's Principles, including ethnicity, rights, and livelihood. The Western idea of rights (quanli, authority/interests) underlay the successive constitutions of 1914, 1923, and 1931. Montesquieu's notion of the separation of powers was realized by positing executive authority in presidents, legislative authority in parliaments, and judicial authority in courts. Specialists in the law, who had their antecedents in the earlier Spring and Autumn and Song periods but who had been banned during the Qing as litigation tricksters or merely tolerated as litigation masters, were reborn in the Republic as respected lawyers (lushi). Increasingly trained in law schools, they grew in number from 1426 in the early Republic to 7651 by 1933. Successive Republican governments based in Beijing implemented the new criminal code drafted at the end of the Qing. The code abolished the ten abominations, reduced penalties for offenses against the head of state, and allowed for the pardoning of such crimes. As in the West and Japan, the deprivation of liberty became the most common punishment. Republican governments established model prisons, of which there were thirty-nine with space for over 14000 inmates by 1918. The emphasis was on rehabilitation (ganhua, literally "transformation of feelings") by means of moral instruction in a wide variety of religions and philosophies, including Ruism, Buddhism, and Christianity. There were lectures on "the rule of law" and the state accepted inmates' petitions complaining about prison conditions. There were provisions for meaningful work and separate cells for suspects and convicts, men and women. There were restrictions on the use of chains and straightjackets, and the latter were banned in 1927. Since most prisoners were convicted of petty crimes, sentences tended to be short and capital punishment infrequent. In all these respects and others, the early Republic arguably established a fairly liberal form of the rule of law. (167)

The early Republic, however, was wracked by internal division and external aggression that, in some other respects, produced different kinds of the rule of law, or only rule by law, or just plain lawlessness. Lacking the means to unify the country or win foreign cooperation (e.g., by restoration of Chinese judicial authority in the treaty-ports), Sun Yat-sen yielded to foreign pressure and followed the model of the sage king Yao to transfer the presidency to Yuan Shikai whose military strength promised domestic order and foreign respect. Yuan, however, assassinated the Guomindang prime minister who challenged his authority, banned political parties whose "selfish" wrangling he regarded as contrary to "the laws," announced that liberty, equality, and rights were bounded by "the law" and did not include political participation, and added article fourteen to the constitution, giving him "all authority to govern (zonglan tongzhi quan)." The foreign powers, always more concerned with their privileges in China than with any kind of rule of law, obliged by providing a large "reorganization loan" that enabled Yuan to govern without parliament or elections and to continue paying interest on foreign loans contracted by the Qing. Yuan used his authority to carry out some reforms, including the establishment of a police force that was "one of the most efficient in East Asia." (168) Under Yuan, police investigations, court judgments, and prison sentences "often followed to the letter the modern criminal code." (169) But the police also took on legislative and judicial functions, promulgating regulations to punish offenders with up to thirty days' detention with no possibility of appeal in a court of law. Access to due process in the courts and prisons "depended largely on an individual's social status and on the prison." (170) In some cases of prison congestion, flogging was reintroduced in lieu of serving time, a measure that was actually applauded by the foreign community. Despite these authoritarian measures, which some foreigners thought should be a model for foreign administration of the treaty-ports, Yuan, too, was unable to recover Chinese sovereignty there. Indeed, he further forfeited Chinese control over salt and customs (to foreign administrators), over domestic industry (to Japanese investors), over Outer Mongolia (to the Russians), and over Outer Tibet (to the British). In a desperate effort to shore up his authority at home and China's sovereignty on the frontier and with the support of an American academic advisor, Frank Goodnow, he finally restored the title "son of heaven" and took the reign name "grand constitution" (hongxian). This maneuver was neither wholly atavistic (it was justified in the name of reform) nor totally irrational (after all, two leading contemporary powers, Britain and Japan, were both constitutional monarchies), but it enjoyed little support in China and it ended with Yuan's sickness and death. In this way, domestic and international forces conspired to encourage a highly authoritarian form of the rule of law, perhaps just as well described as rule by law. (171)

Rather than seeing the early Republic of China's form of the rule of law as "new," whether more liberal or more authoritarian than those of the "empire," we may more usefully compare and contrast it with those of the Spring and Autumn and Warring States and the Song. The early Republic, like those earlier polities, remained too weak to suppress internal rebellion or restore the borders of the previous polity, let alone expand its influence abroad. Like the state of Zheng in early China, the Republic promulgated strict laws in an effort to bring order to society. Some citizens of the Republic recognized parallels between their times and those of the Song in the middle period of Chinese history. Zhao Chen had studied law in Japan, joined the Guomindang in 1925, and become a judicial official in the 1930s. Regarded by contemporaries as a "living Judge Bao," Zhao argued that "poverty, ignorance, and deviance became linked in a vicious circle of crime with the advance of civilization, and it was the task of education and punishment to sever that link." (172) Another Republican intellectual, Li Jianhua, criticized the Ming novel Bandits of the Marsh (Shuihu zhuan) for romanticizing a Song-period outlaw band. He claimed that its contemporary popularity actually contributed to banditry in the Republic. (173) Instructors at a Jiangsu reformatory in 1935, hoping to improve management of the economy, had inmates write papers on the New Laws of Wang Anshi in the Northern Song. (174) Such models from the past, it was apparently hoped, might inspire an appropriate form of the rule of law in the present.

When generalissimo Chiang Kai-shek, trained in Japan and supported by the West, renewed the effort to unify China from his capital in Nanjing in 1928, he finally implemented the new civil code drafted on the German model at the end of the Qing. Wang Chonghui, educated in the United States and Germany and widely considered the leading Chinese jurist of his day, served as first president of the Judicial Yuan from 1928 to 1930 and worked to realize the concept of rights that was central to the code. The new code considered property to be "at bottom individual," and neither fathers nor sons were to be constrained any longer in disposing of it. An important provision of the new code, taken from the German code but going beyond the 1911 Chinese version, was that "[w]omen were to be no different from men in the eyes of the law, and juniors no different from seniors." "Daughters would have equal inheritance rights with sons, and wives separate property rights from husbands." (175) A widow would receive a share of her husband's inheritance equal to that of the sons and daughters. Article 972 provided that "[a]n agreement to marry shall be made by the male and female parties of their own accord." (176) Wives as well as husbands were to have rights to apply for divorce, providing a legal foundation for a de facto practice that had existed in the Qing. In one view, whereas the Qing code had punished "violations of state-prescribed proscriptions" designed for an "agrarian" society," the Republican code defended "individual rights" appropriate to a "capitalist" economy. (177) The idea that the Republican rule of law was bourgeois finds some support in the conditions in the prisons. Conditions were better in the coastal regions than in the interior, and in cities than in the countryside. Under-funding and overcrowding, however, were common. Torture, decapitation, and public executions persisted, especially in cases of alleged leftists. The poor, who comprised the bulk of the prison population if only because they could not afford to pay fines, suffered from drug addiction, extra-legal punishments, and high mortality rates. They were also more likely than the wealthy to have their corpses dissected for medical knowledge. "Social discrimination against the poor was inherent in the penal philosophy of the republican period." (178)

Yet the Nanjing code also reflected some concerns about social equity that had not been evident in earlier drafts. Hu Hanmin, educated in Japan and now serving as first president of the Legislative Yuan, raised doubts about what he regarded as excessive emphasis on the individual (geren benwei) and insufficient attention to society (shehui benwei). He suggested that China's longstanding valuing of the family over the individual actually made it more "advanced" than the West, which was only recently coming to pay attention to the needs of society. (179) Indeed, in Hu's view, foreigners were in fact "preoccupied only with power (badao, literally "the way of hegemony"), focusing only on what was of benefit to the individual," while China was "concerned with the sagely king (wangdao), which emphasized humaneness." (180) Hu called for measures to assist tenants who suffered poor harvests because of calamities beyond their control. While he got such a provision inserted into the code, he was less successful in promoting the principles of equal landholding and limits on rent. Indeed, several additions to the code made in the name of equity in the 1930s turned out to favor the rich and powerful. Given the importance of the German model during the Republic, it is not surprising that Hu, like others, favored codes over customs. Arguing that there were more bad customs in China than good ones, he asserted: "If we expand the use of custom, then the spirit of the rule of law among our citizens will be even harder to develop, and all political and social developments will be slowed down even more." (181) Yet, in a few cases, customs that favored social equity, such as conditions on land sales and limits on interest rates, were honored in the code (182) Intellectuals also expressed concern for equity and humaneness on the basis of other countries' experience in penal administration. Li Jianhua defended Soviet labor camps in Siberia as better than European slave labor in the colonies. He agreed with a Japanese jurist who favored abolition of the death penalty because, he wrote, in putting criminals to death society shirked its responsibility for crime. He combined Ruist with Marxist thought to argue that people must have a livelihood to be moral and that it was the bourgeois quest for luxury that drove the poor to commit crimes. (183)

In addition to weighing the capitalist and socialist features of the Nanjing government, we may assess the sources of its major effort to recentralize China. As the Western powers fought over the world and clashed ideologies, some Chinese became attracted to a different Western form of the rule of law: Fascism. In 1931, Chiang Kai-shek authorized the establishment of a revival society (fuxing she), which the Japanese quickly dubbed Blue Shirts (lanyi she). The society claimed that Chiang was the "only supreme leader" of the Guomindang, whose members "must absolutely support him, follow his orders only, and make his will their own." (184) In 1933, Chiang told party cadres that "the most important point of fascism is absolute trust in a sagely able leader.... I believe that, unless everyone has absolute trust in one man, we cannot reconstruct the nation and we cannot complete the revolution." (185) In a speech in 1935, he added: "At the present stage of China's critical situation, fascism is a wonderful medicine exactly suited to China, and the only spirit that can save it." (186) While Chiang's ideology was a complex mixture of Ruist respect for sages and nationalist veneration of leaders, it also drew on other Chinese and Western notions of the rule of law. One Blue Shirt publication stated: "in order to create a new culture, Lenin, Stalin, Mussolini, and Hitler launched an unfeeling, cruel attack on the old culture, replaying the drama of the First Emperor, burning books and burying scholars alive. Naturally this cannot be done." (187) The Blue Shirts depreciated truth and peace as deceptions and called for fighting violence with violence in a world where only power held sway. Taking a leaf from the book of Lord Shang, they declared: we must cause "the masses to become so frightened that they ... will not again transgress the law." (188) Members of the society, numbering some 10,000 in 1935, were organized into ten branches (including one in Luoyang, in central China) and forty sub-branches (including one in Washington D. C.). After assisting with the New Life Movement, which stressed moral rearmament, the Blue Shirt society was dissolved in 1938, but its spirit lived on in the Guomindang Youth Corps and its role was assumed by special services under Dai Li. Dai's secret service grew from 145 operatives in 1932 to some forty to fifty thousand by the end of World War II. (189) By that time Chiang Kai-shek had signed a secret agreement with the United States that provided for American training of Dai's agents and cooperation in establishing what one historian calls "the most infamous camps" for political prisoners, including one known as the White House (bai gongguan). (190) Under conditions imposed, models provided, and assistance offered by various "Wests," China in a renewed search of unity and centralization arguably came closer to the Qin form of the rule of law than it had in two millennia.

XIV. CONCLUSIONS

In sum, we have argued, by Zhou times, the Chinese conceived of a superhuman basis--the mandate of heaven and nature--for the rule of law. By the Spring and Autumn and Warring States periods, they developed various notions--including Ruist rites, Legalist laws, and Daoist Ways--that could and did limit the authority of the ruler and increase the equity of society. From Qin-Han times on, Chinese rulers were expected to govern in accordance with customs and models inherited from ancestors, with laws and institutions established in cooperation with officials, and with various Ways produced over time by the interaction of heaven, earth, and humans (i.e. the cosmic process).

We have suggested, further, that one may most fully apprehend and assess the kinds of the rule of law in China through careful scrutiny of a handful of political orders (or polities) that have appeared and reappeared during the course of Chinese history from early times to the mid-twentieth century. They include the elitist order (Zhou, Tang, and Qing), the multi-state system (Spring and Autumn/Warring States, Five Dynasties-Jin/Song, and early Republic), the centralizing state (Qin, Yuan, and mid-Republic), and the populist order (Han and Ming). Each of these regimes suffered from various kinds of rule by law and even lawlessness, but they also featured different forms of the rule of law. The apogee of the rule of law was probably attained in the commonly recognized model reigns, including those of the Duke of Zhou, Han Wen and Jing, Tang Taizong, Ming Renzong, and Qing Kangxi. The nadir was probably approached in periods of disorder on the one hand and in eras of over-centralization on the other. Further work needs to be done on the precise identification and description of the various regimes of the rule of law associated with different polities and on the dynamics and patterns of their appearance and reappearance over time. But enough is already known, we submit, to indicate the importance of interactions among past models, current needs, and future aspirations as well as among historical China, its nearby peripheries, and the larger world in creating the conditions necessary for the implementation of the rule of law--as opposed to rule by men, rule by law, and rule without law. In this article, we have attempted to track some of these interactions over three millennia. The implications of our findings for the existence, nature, and prospects of the rule of law in China since 1949 will require further consideration and separate treatment.

(1) RONALD A. CASS, THE RULE OF LAW IN AMERICA 1-2 (2001); ALBERT HUNG-YEE CHEN, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE PEOPLE'S REPUBLIC OF CHINA 11 (4th ed. 2002); Dean Spader, Rule of Law v. Rule of Man: The Search for the Golden Zigzag between Conflicting Fundamental Values, 12 J. GRIM. JUST. 379-94 (1984); Wen Zhengbang, Lun fazhi wenming: hunxiao fazhi yu fazhi de gainian [The Culture of the Rule of Law: Confounding the Conceptions of the Rule of Law and that of the Rule by Law], 2 XIANDAI FAXUE [MODERN JURISPRUDENCE] (1998); Liang Zhiping, Explicating 'Law': A Comparative Perspective of Chinese and Western Legal Culture, 3 J. CHINESE L., 55, 81 (1989).

(2) RALPH FOLSOM, JOHN H. MINAN & LEE ANN OTTO, LAW AND POLITICS IN THE PEOPLE'S REPUBLIC OF CHINA 12 (1992); ROBERT MANGABEIRA UNGER, LAW IN MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY 86-87 (1976); XIN REN, TRADITION OF THE LAW AND LAW OF THE TRADITION: LAW, STATE, AND SOCIAL CONTROL IN CHINA 10 (1997); Yuan Yuan Shen, Conceptions and Receptions of Legality: Understanding the Complexity of Law Reform in Modern China, in 14 THE LIMITS OF THE RULE OF LAW IN CHINA 20-44 (Karen Turner et al. eds., 2000) [hereinafter LIMITS].

(3) PHILIP B. CHEN, LAW AND JUSTICE: THE LEGAL SYSTEM IN CHINA 2400 B.C. TO 1960 A.D., at 41-43 (1973); A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 183, 189, 207 (9th ed., 1956) (1920); Guo LUOJI, GONGCHANDANG WEIFA AN JISHI [A TRUE RECORD OF A CASE OF THE COMMUNIST PARTY'S VIOLATION OF THE LAW] 205 (1997); Karen Turner, Sage Kings and Laws in the Chinese and Greek Traditions, in HERITAGE OF CHINA: CONTEMPORARY PERSPECTIVES ON CHINESE CIVILIZATION 96, 108-11 (Paul S. Ropp ed., 1990); Zhuo Zeyuan, Fazhi de guodu: tan fazhiguojia de jiben tezheng [The Rule of Law State: Discussing the Characteristics of the Rule of Law State], Mar. 6 JIANCHA RIBAO [INSPECTION DALLY] (2000).

(4) ELLIS SANDOZ, A GOVERNMENT OF LAWS: POLITICAL THEORY, RELIGION, AND THE AMERICAN FOUNDING 229-34 (1990); MAX WEBER, ECONOMY AND SOCIETY 311-38 (Guenther Roth & Claus Wittich eds., 1978) (1968).

(5) Shen, supra note 2, at 36-37.

(6) For the origins and tenacity of this view, see William Alford, Law, Law, What Law? Why Western Scholars of China Have Not Had More to Say about Its Law, in LIMITS, supra note 2, at 46-57.

(7) See generally ZHENGYUAN FU, CHINA'S LEGALISTS: THE EARLIEST TOTALITARIANS AND THEIR ART OF RULING (1996) (explaining that the Legalists advocated only the rule by law); YONGPIN LIU, ORIGINS OF CHINESE LAW: PENAL AND ADMINISTRATIVE LAW IN ITS EARLY DEVELOPMENT 182 (1998); STANLEY LUBMAN, BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO 24-27 (2000); RANDALL PEERENBOOM, CHINA'S LONG MARCH TOWARD RULE OF LAW 33 (2002); Xu Xianming, Xie Hui, Fazhi zhizhi yu fazhi zhizhi [The Government of the Rule of Law and the System of the Rule of Law] 10 FAXUE [JURISPRUDENCE] 16-21 (1998).

(8) See generally YU-NING LI, THE FIRST EMPEROR OF CHINA (1975) (explaining the influence of Legalism on Qingshihuang).

(9) See generally T' UNG-TSU CHU, LAW AND SOCIETY IN TRADITIONAL CHINA (1979) (explaining the Confucianization of the Chinese law in the course of Chinese history); CHEN, supra note 3, at 35.

(10) A. F. P. Hulsewe, Ch 'in and Han Law, in 1 THE CAMBRIDGE HISTORY OF CHINA: THE CH'IN AND HAN EMPIRES, 221 B.C.-220 A.D., at 524-29 (Denis Twitchett & Michael Loewe eds., 1986) [hereinafter 1 CAMBRIDGE]; GUO, supra note 3, at 205; LIU, supra note 7, at 2-3; PEERENBOOM, supra note 7, at 36-42; ZHONGGUO FAZHISHI [A HISTORY OF THE CHINESE LEGAL SYSTEM] 3 (Ye Xiaoxin ed., 2002).

(11) GEOFFREY MACCORMACK, THE SPIRIT OF TRADITIONAL CHINESE LAW 10, 36, 63, 97, 109-10 (1996).

(12) See PHILIP C.C. HUANG, CODE, CUSTOM, AND LEGAL PRACTICE IN CHINA: THE QING AND THE REPUBLICAN COMPARED 9 (2001); ZHONGGUO FAZHISHI [A HISTORY OF THE CHINESE LEGAL SYSTEM] 15 (Zeng Xianyi ed., 2000); Yao Jianzong, Fazhi dejingshen yiyun [The Spiritual Meaning of the Rule of Law] 2 J. OF JILIN UNIVERSITY SOCIAL SCIENCE 1-12 (1997); Zhuo Zeyuan, Zhongguo fazhi de guoqu he weilai [The Past and Future of the Rule of Law in China] 8 FAXUE [JURISPRUDENCE] 5-8 (1997). The implications of this paradigm, as well as those of our own, for the Chinese political system after 1949 will be explored in another context.

(13) This theory has been outlined in ROGER V. DES FORGES, CULTURAL CENTRALITY AND POLITICAL CHANGE IN CHINESE HISTORY: NORTHERN HENAN IN THE FALL IN THE MING 317-320 (2003). In this article, we test this theory as a possible explanation for the appearance and recurrence of various forms of the rule of law in China before 1949. The period after 1949 will be addressed in a separate publication.

(14) JAMES LEGGE, THE CHINESE CLASSICS, III, THE SHOO KING 381-98, 588-611 (1871); LIU, supra note 7, at 120-24; MACCORMACK, supra note 11, at 2, 15, 73-74, 146. For general accounts, see HERRLEE GLESSNER CREEL, 1 THE ORIGINS OF STATECRAFT IN CHINA: THE WESTERN CHOU EMPIRE 450 (1970); see generally THE CAMBRIDGE HISTORY OF CHINA: FROM ORIGINS OF CIVILIZATION TO 221 B.C. 323 (Michael Loewe & Edward L. Shaughnessy eds., 1999) [hereinafter ORIGINS].

(15) Herrlee Glessner Creel, Legal Institutions and Procedures During the Chou Dynast, in ESSAYS ON CHINA'S LEGAL TRADITION 41 (Jerome Alan Cohen et al. eds., 1980) [hereinafter TRADITION]; Cho-yun Hsu, The Spring and Autumn Period, in ORIGINS, supra note 14, at 545-86 ("The conservatives argued that if commoners knew the legal statutes, they would no longer obey state authority...."); see also Wejen Chang, Foreward, in LIMITS, supra note 2, at vii-xii; Jack Dull, Epilogue: The Deep Roots of Resistance to Law Codes and Lawyers in China, in LIMITS, supra note 2, at 325-29. For Plato's belief in the unlimited authority of a philosopher ruler (individual or collective), see PLATO, THE REPUBLIC (Desmond Lee trans., Penguin Books 2003).

(16) LIU, supra note 7, at 1-2.

(17) REN, supra note 2, at 20; R. Kent Guy, Rule of Man and Rule of Law in China. Punishing Provincial Governors in the Qing, in LIMITS, supra note 2, at 88-92; see Kidder Smith, Sima Tan and the Invention of Daoism, 'Legalism,' et cetera, 62 J. ASIAN STUD. 129, 138-39 (1993).

(18) GONGSUN YANG, THE BOOK OF LORD SHANG 260 (J.J.L. Duyvendak trans., Univ. of Chicago Press 1963).

(19) CHEN QIQIU, HANFEIZI XINJIAOZHU [A NEW ANNOTATION OF HAN FEIZI] 107 (2000); W. K. LIAO, THE COMPLETE WORKS OF HAN FEI TZU: A CLASSIC OF CHINESE POLITICAL SCIENCE 43, 45, 270 (1959).

(20) QIQIU, supra note 19, at 542.

(21) ARISTOTLE, POLITICS 58-59 (Richard Robinson trans., Claredon Press 1995); DONALD MUNRO, THE CONCEPT OF MAN IN EARLY CHINA 14-15 (1969); Guy, supra note 17, at 94, 96-100, 103; Karen Turner, Rule of Law Ideals in Early China?, 6 J. CHINESE L. 18 (1992). For a recent comparison of Aristotelian and Confucian ethics, see JIYUAN YU, THE ETHICS OF CONFUCIUS AND ARISTOTLE: MIRRORS OF VIRTUES (2007).

(22) MAWANGDUI HANMU BOSHU [THE SILK BOOK OF MAWANGDUI IN THE HAN TOMB] 1 (1976).

(23) RANDAL PEERENBOOM, LAW AND MORALITY IN ANCIENT CHINA: THE SILK MANUSCRIPT OF CHINA 34--36 (1993); Turner, supra note 21, at 9-10.

(24) See generally DERK BODDE & CLARENCE MORRIS, LAW IN IMPERIAL CHINA, EXEMPLIFIED BY 190 CH'ING DYNASTY CASES (1967); LI XUEQIN, EASTERN ZHOU AND QIN CIVILIZATIONS (K.C. Chang trans., 1985) (explaining the social development from the Zhou to the Qin dynasties through archeological artifacts).

(25) REN, supra note 2, at 19.

(26) See A. F. P. HULSEWE, REMNANTS OF CH'IN LAW (1985); Yuan Yuan Shen, Conceptions and Receptions of Legality: Understanding the Complexity of Law Reform in Modern China, in LIMITS, supra note 2; Karen Turner, War, Punishment, and The Law of Nature in Early Chinese Concepts of The State, 53 HARV. J. ASIATIC STUD. 285, 285-324 (1993); Robin D. S. Yates & C. D. McLeod Katrina, Forms of Ch 'in Law. An Annotated Translation of the Feng-chen shih, 41 HARV. J. ASIATIC STUD. 111, 111-63 (1981).

(27) In fact, of course, differences in status exist. See Romeyn Taylor, Chinese Hierarchy in Comparative Perspective, 48 J. ASIAN STUD. 490-511 (1989).

(28) See CHEN, supra note 19, at 1151 ; CREEL, supra note 14, at 43, 1005; LIU, supra note 7, at ch. 7; 2 JOSEPH NEEDHAM, SCIENCE AND CIVILIZATION IN CHINA: HISTORY OF SCIENTIFIC THOUGHT 528 (1975) (1956); Hans Bielenstein, Wang Mang, the Restoration of the Han dynasty, and Later Han, in 1 CAMBRIDGE 223, 239; Guy, supra note 17, at 107.

(29) SIMA GUANG, ZIZHI TONGJIAN [COMPREHENSIVE MIRROR FOR AID IN GOVERNMENT] 747 (1956). This note relies heavily on Sima Guang's chronological history compiled in the Northern Song (eleventh century CE) for cases illustrating the rule of law during the millennium and a half from the fifth century BCE to the tenth century CE. In his famous bureaucratic battle with the reformist official Wang Anshi, Sima Guang emphasized the important role of monarchs in history, but he also believed that the monarch's authority was--and should be--limited. For a review of some of the literature in Chinese and English on Sima's approach to history, see PETER K. BOL, THIS CULTURE OF OURS: INTELLECTUAL TRANSITION IN T'ANG AND SUNG CHINA 233-246 (1992); ON-CHO & Q. EDWARD WANG, MIRRORING THE PAST: THE WRITING AND USE OF HISTORY IN IMPERIAL CHINA 147-51 (2005).

(30) SIMA, supra note 29, at 1523.

(31) Id. at 451. In this case, as in many others cited by Sima Guang, historians cannot be sure that the record reflects precisely what happened, especially when it comes to dialogues supposedly conducted centuries before Sima compiled his account. However, it is reasonable to assume that in each case Sima had some basis for his narrative and it was sufficient for him to believe that there was a solid historical foundation for his theory that both monarchs and their minions believed that the ruler's authority was not absolute. Further research into the sources and contexts of Sima's anecdotes may help to confirm or disprove this theory.

(32) Id. at 532.

(33) Id. For other interpretations of this incident, see Karen G. Turner, Introduction. The Problem of Paradigms, in LIMITS, supra note 2, at 3, 10.

(34) SIMA, supra note 29, at 573.

(35) Id. at 1263, 1389.

(36) Id. at 746.

(37) Id.

(38) Id. at 617.

(39) DONG ZHONGSHU, CHUNQIU FANLU [THE LUXURIANT DEWS OF SPRING AND AUTUMN ANNALS] 496 (1979).

(40) SIMA, supra note 29, at 1791.

(41) Id. at 1642.

(42) Id. at 6028; ZHU XI, SISHU ZHANGJU JIZHU [ANNOTATION OF FOUR BOOKS] 298 (1998).

(43) CREEL, supra note 14, at 37; LIU, supra note 7, at 183-84.

(44) SIMA, supra note 29, at 3212.

(45) Id.

(46) Id. at 4697.

(47) Id. at 4911.

(48) ZENG, supra note 12, at 158-59.

(49) THE GREAT QING CODE 34-36 (William C. Jones et al. trans., Clarendon Press 1994) [hereinafter QING CODE]; MACCORMACK, supra note 11, at 44-45, 51, 55-57; REN, supra note 2, at 37; ZHANGSUN WUJI, 2 THE TANG CODE, SPECIFIC ARTICLES 17 (Wallace Johnson trans., 1979); 1 THE T'ANG CODE, GENERAL PRINCIPLES OF THE T'ANG CODE 61-83 (Wallace Johnson trans., Princeton University Press 1997) [hereinafter 1 TANG CODE]; Wallace Johnson, Introduction, in 1 T'ANG CODE, supra.

(50) MACCORMACK, supra note 11, at 121; see generally FRANK DIKOTTER, CRIME, PUNISHMENT, AND THE PRISON IN MODERN CHINA 107-12, 253, 257-58, 289, 352-53 (2002) (discussing Buddhist, Christian, Daoist and other religious instruction in early 20th-century Chinese prisons). Scholars at the University at Buffalo Law School are currently engaged in a major project studying the relationship between Buddhism and the law. See The Law and Buddhism Project, http://www.law.buffalo.edu/baldycenter/lawandbuddhism (last visited Jan. 27, 2008).

(51) SIMA, supra note 29, at 5446; Arthur F. Wright, The Sui Dynasty (581-617), in 3 THE CAMBRIDGE HISTORY OF CHINA: SUI AND T'ANG CHINA 589-906 63, 70 (Denis Twitchett ed., 1979) [hereinafter 3 CAMBRIDGE].

(52) TANG CHENGYE, SUI WENDI ZHENGZH1 SHIGONG ZHI YANJIU [A STUDY OF SUI WENDI'S POLITICAL ACTIVITIES] 69 (1968). See Jonathan K. Ocko, I'll Take It All the Way to Beijing: Capital Appeals in the Qing, 47 J. ASIAN STUD. 291-315 (1988).

(53) Wright, supra note 51, at 12, 103-05.

(54) Alford, supra note 6, at 48; see generally WILLIAM SHAW, LEGAL NORMS IN A CONFUCIAN STATE (1981) (explaining the role of Confucian law in Yi Korea (1398-1910)); TA VAN TAN, THE LE CODE: LAW IN TRADITIONAL VIETNAM: A COMPARATIVE SINO-VIETNAMESE LEGAL STUDY WITH HISTORICAL JURIDICAL ANALYSIS AND ANNOTATIONS (1987) (explaining the approach to legal institutions in the period of Le Dynaty (1428-1788) that was different from that in China).

(55) Wright, supra note 51, at 131.

(56) Howard J. Wechsler, The Founding of the T'ang dynasty." Kao-tsu (reign 618-26), in 3 CAMBRIDGE, supra note 45, at 178, 195; Howard J. Wechsler, T'ai-tsung (reign 626-49) the Consolidator, in 3 CAMBRIDGE, supra, at 206-07, 274.

(57) HOWARD WECHSLER, MIRROR TO THE SON OF HEAVEN: WEI CHENG AT THE COURT T'ANG T'AI TSUNG 24 (Yale University Press, 1974).

(58) Denis Twitchett, How to Be an Emperor: T'ang T'ai-tsung's Vision of His Role, in 9 ASIA MAJOR 1-3, 92-97 (3rd ed., 1996).

(59) SIMA, supra note 29, at 6029.

(60) Id.

(61) Id. at 6091.

(62) Id. at 6182.

(63) Id. at 6523.

(64) MACCORMACK, supra note 11, at 147; see Richard W. L. Guisso, The Reigns of the Empress Wu, Chung-tsung and Jui-tsung (684-712), in 3 CAMBRIDGE, supra note 45, at 297-98.

(65) Guisso, supra note 64, at 320-21.

(66) Id.

(67) SIMA, supra note 29, at 6801.

(68) Id. at 735.

(69) Id.

(70) MACCORMACK, supra note 11, at 13, 49; see Brian E. McKnight, T'ang Law and Later Law." The Roots of Continuity, 115 J. AM. ORIENTAL SOCIETY 410-20 (1995).

(71) CHARLES O. HUCKER, THE CENSORIAL SYSTEM OF MING CHINA 2, 35 (1966).

(72) SIMA, supra note 29, at 7686.

(73) Id. at 8027.

(74) Id. at 8028.

(75) Id. at 8059.

(76) Id. at 8064.

(77) Id.

(78) Ichisada Miyazaki, The Administration of Justice During the Sung Dynasty, in TRADITION, supra note 15, at 67.

(79) PAUL HENG-CHAO CH'EN, CHINESE LEGAL TRADITION UNDER THE MONGOLS: THE CODE OF 1291 AS RECONSTRUCTED 42 (1979); Denis Twitchett & Klaus-Peter Tietze, The Liao, in 6 THE CAMBRIDGE HISTORY OF CHINA: ALIEN REGIMES AND BORDER STATES 907-1368 94 (Herbert Franke & Denis Twitchett eds., 1994) [hereinafter 6 CAMBRIDGE].

(80) Twichett & Tietze, supra note 79, at 116, 127, 131, 137.

(81) Ruth Dunnell, The Hsi Hsia, in 6 CAMBRIDGE, supra note 79, at 199-200.

(82) LI TAO, XU ZIZHI TONGJIAN CHANGBIAN [LONG DRAFT OF THE CONTINUATION OF THE ZIZHI TONGJIAN] 11417 (1979-95); CH'EN, supra note 79, at 42, n.1 (citing Brian E. McKnight, Sung Justice. Death by Slicing, J. AMER. ORIENTAL SOCIETY 359-60 (1973)); Miyazaki, supra note 78, at 56-57, 67.

(83) BI YUAN, XU ZIZHI TONGJIAN [THE CONTINUED COMPREHENSIVE MIRROR FOR AID IN GOVERNMENT] 1, 10 (1965). Bi Yuan (1730-1797) was a scholar-official of the high Qing period whose continuation of Sima Guang's history continued to focus on politics.

(84) Id. at 14.5.

(85) Id.

(86) BRIAN E. MCKNIGHT, THE QUALITY OF MERCY: AMNESTIES AND TRADITIONAL CHINESE JUSTICE 84 (1981).

(87) BRIAN E. MCKNIGHT, LAW AND ORDER IN SUNG CHINA 60 (1992); Miyazaki, supra note 78, at 69.

(88) Id.

(89) Miyazaki, supra note 78, at 58-59.

(90) TUOTUO, SONGSHI [THE HISTORY OF THE SONG] 4962 (1977).

(91) Miyazaki, supra note 78, at 58, 70.

(92) SIMA, supra note 29, at 2503.

(93) ALISON W. CONNER, True Confessions? Chinese Confessions Then and Now, in LIMITS, supra note 2, at 135. See generally GEORGE A. HAYDEN, CRIME AND PUNISHMENT IN MEDIEVAL CHINESE DRAMA: THREE JUDGE PAO PLAYS (1978) (explaining that the famous Judge Bao tolerated long litigation); MCKNIGHT, supra note 75, at ch. 4; Miyazaki, supra note 78, at 57, 59-60, 61, 65-66, 69, 73 n.21.

(94) BI, supra note 83, at 132.5.

(95) Id. at 146. 17.

(96) Id.

(97) TUOTUO, supra note 90, at 4994.

(98) YONGLIN JIANG, Lun Zhonghua diguo falu de zongjiao tezheng--yi Mingchu falu wenhua wei li [The Religious Character of Chinese Imperial Law: The Example of Legal Culture at the Beginning of the Ming], in 3 MINGQING LUNCONG [A COLLECTION OF ESSAYS ON THE MING AND QING DYNASTIES] 57 (Zhu Chengru & Wang Tianyou eds., 2002). See generally HOYT CLEVELAND TILMAN, CONFUCIAN DISCOURSE AND CHU HIS'S ASCENDANCY (1992) and HOYT CLEVELAND TILMAN, UTILITARIAN CONFUCIANISM: CH'EN LIAN'S CHALLENGE TO CHU HIS (1982) for the rise of Confucian scholar Chu His in the Northern Song in the wake of Buddhist threats.

(99) BI, supra note 83, at 150.19; SIMA, supra note 29, at 3212; TUOTUO, supra note 90, at 1020.

(100) See MORRIS ROSSABI, KHUBILAI KHAN: HIS LIFE AND TIMES 130-32 (1988).

(101) CH'EN, supra note 79, at 3-18.

(102) CH'EN, supra note 79, at 19-40.

(103) Id. at 46.

(104) BI, supra note 83, at 200.11, 201.18.

(105) Id. at 202.7.

(106) CH'EN, supra note 79, at ch. 3; Frederick W. Mote, Chinese Society Under Mongol Rule, 1215-1368, in 6 CAMBRIDGE, supra note 79, at 616, 631, 634.

(107) JOHN W. DARDESS, CONFUCIANISM AND AUTOCRACY: PROFESSIONAL ELITES IN THE FOUNDING OF THE MING DYNASTY 2-3 (1983); Jiang, supra note 85, at 55-59; see Ssu-yu Teng, Chu Yuan-chang, in DICTIONARY OF MING BIOGRAPHY, 1368-1644, at 381-92 (L. Carrington Goodrich & Chaoying Fang eds., 1976). See generally Wu HAN, ZHU YUANZHANGZHUAN [A BIOGRAPHY OF ZHU YUANZHANG] 1-115 (1948) (explaining the life experience and policies of Zhu Yuanzhang); CHARLES HUCKER, THE MING DYNASTY: ITS ORIGINS AND EVOLVING INSTITUTIONS chs. 1-3 (1978) (explaining the political institution of the Ming); Frederick W. Mote, The Rise of the Ming Dynasty, 1330-1367, in 7 THE CAMBRIDGE HISTORY OF CHINA: THE MING DYNASTY 1368-1644, at 11-57 (Frederick W Mote & Twitchett Denis eds., 1988) [hereinafter 7 CAMBRIDGE] (explaining the formation of the Ming under Zhu Yuanzhang).

(108) EDWARD FARMER, ZHU YUANZHANG AND EARLY MING LEGISLATION: THE REORDERING OF CHINESE SOCIETY FOLLOWING THE ERA OF MONGOL RULE 124-27 (1995).

(109) Id.

(110) Id.; Jiang, supra note 98, at 59-60; Teng, supra note 107, at 385; Edward Farmer, Social Order in Early China." Some Norms Codified in the Hung-wu Period, in LAW AND THE STATE LAW IN TRADITIONAL EAST ASIA: SIX STUDIES ON THE SOURCES OF EAST ASIAN LAW 1-36 (Brian E. McKnight ed., 1987) (explaining the adoption of the New-Confucianism in the norms at the reign of Taizu 0368-1398)); Dan Fenno Henderson, Chinese Influences on Eighteenth-Century Tokugawa Codes, in TRADITION, supra note 15, at 270-301; John D. Langlois, Ming Law, in 8 THE CAMBRIDGE HISTORY OF CHINA: THE MING DYNASTY 1368-1644, PART II 172-75, 181-82, 195-97, 201 (Denis Twitchett & Frederick W. Mote eds., 1998) [hereinafter 8 CAMBRIDGE] (explaining the draft of the Ming Code by Ming Taizu and the practices of the code).

(111) Langlois, supra note 110, at 175.

(112) Langlois, supra note 110, at 179-80; Teng, supra note 107, at 387, 389; see HUCKER, supra note 107, at ch. 4.

(113) HUCKER, supra note 107, at 35. Accounts such as this smack of popular history that like the official and private histories--should be treated with some skepticism. But the popular image of a ruler obsessed with the law seems accurate. Id.

(114) Jiang, supra note 98, at 64; Langlois, supra note 110, at 186, 189; Teng, supra note 107, at 386, 391.

(115) ZHANG TINGYU, MINGSHI [THE HISTORY OF THE MING DYNASTY] 2320 (1974). This account is notable because the Mingshi generally depreciated Ming justice to explain the overthrow of the dynasty. Langlois, supra note 108, at 187.

(116) MCKNIGHT, supra note 86, at 101; see Langlois, supra note 110, at 180 (citing MING TAIZONG SHILU [VERITABLE RECORD OF MING TAIZONG] 28, 505-06 (1983).

(117) HUCKER, supra note 71, at 232-34.

(118) ZHANG, supra note 115, at 2320.

(119) Id.

(120) See generally RAY HUANG, 1587 A YEAR OF NO SIGNIFICANCE: THE MING DYNASTY IN DECLINE 19 (1982) (explaining that Ming Shenzong chose to strike against officials due to his failure of changing his heir-apparent).

(121) See generally JOHN W. DARDESS, BLOOD AND HISTORY IN CHINA: THE DONGLING FACTION AND ITS REPRESSION 1620-1627 (2002) (explaining the factional struggle in the late Ming court).

(122) See generally PAMELA CROSSLEY, A TRANSLUCENT MIRROR: HISTORY AND IDENTITY IN QING IMPERIAL IDEOLOGY (1999) (explaining the distinction of Manchu's identity); MARK ELLIOTT, THE MANCHU WAY: THE EIGHT BANNERS AND ETHNIC IDENTITY IN LATE IMPERIAL CHINA (2001) (explaining that Manchu successfully preserved its ethical identity by establishing banner garrisons); EVELYN RAWSKI, THE LAST EMPERORS: A SOCIAL HISTORY OF QING IMPERIAL INSTITUTIONS (1998) (explaining that Manchu was carefully preserving its language and identity).

(123) BODDE & MORRIS, supra note 22, at 52-75; CHEN, supra note 3, at 170; MACCORMACK, supra note 11, at 1, 13, 49, 197; Alford, supra note 6, at 50; Zheng Qin, Pursuing Perfection: Formation of the Qing Code in 21 MODERN CHINA 31 0-44, 313-14, 320-22 (Guangyuan Zhou trans., 1995).

(124) The Qing official commentary of 1695 was directly inspired by the Tang commentary of 653. Fu-mei Chang Chen, The Influence of Shen Chih-eh 'i's Chi-chu Commentary Upon Ch'ing Judicial Decisions, in TRADITION, supra note 15, at 170-71; Zheng, supra note 123, at 320.

(125) MACCORMACK, supra note 11, at 6, 29-30, 160.

(126) Id. at 109-10.

(127) Id. at 35 36; Joanna Waley-Cohen, Collective Responsibility in Qing Criminal Law, in LIMITS, supra note 2, at 119-21.

(128) MACCORMACK, supra note 11, at 79, 94.

(129) Id. at 64; see generally MATTHEW SOMMER, SEX, LAW, AND SOCIETY IN LATE IMPERIAL CHINA (2000) (detailing evolution of rape law in Qing China).

(130) MACCORMACK, supra note 11, at 65.

(131) Id. at 60, 65, 85.

(132) CONNER, supra note 93, at 136.

(133) Id. at 136-50.

(134) QINGDAI QUANSHI [A COMPLETE HISTORY OF THE QING] 44 (Wang Rongsheng et al. eds., 1995); Alexander Woodside, The Ch'ien-lung Reign, in 9 THE CAMBRIDGE HISTORY OF CHINA, PART ONE: THE CH'ING EMPIRE TO 1800, at 246-47 (Willard Peterson ed., 2002) [hereinafter 9 CAMBRIDGE]; Madeleine Zelin, The Yung-cheng Reign, in 9 CAMBRIDGE, supra, at 211; Zheng, supra note 123, at 33. For three quite different views on this issue, see MACCORMACK, supra note 11, at xiv, 20-22, 29, 162, 212; QING CODE, supra note 43, at 1-28; Wejen, supra note 15, at ix-xii.

(135) MACCORMACK, supra note 11, at 104, 149.

(136) Id. at xiv, 18, 21 22, 100, 162, 174, 188, 212.

(137) Id.; THOMAS STEPHENS, ORDER AND DISCIPLINE IN CHINA: THE SHANGHAI MIXED COURT 1911-27 (1992); Zheng, supra note 123, at 340-42; see generally THOMAS METZGER, THE INTERNAL ORGANIZATION OF CH'ING BUREAUCRACY, LEGAL NORMATIVE, AND COMMUNICATION ASPECTS (1973! (explaining the effectiveness of the Qing bureaucracy and its moral obligation).

(138) MACCORMACK, supra note 11, at 75, 89, 106-07, 114, 115, 116, 141.

(139) ZHANG JINFAN, QINCHAO FAZHISHI [A HISTORY OF THE QING LEGAL SYSTEM] 12, 18 (1998). For an important exception, see Gertrude Li Roth, State Building Before 1644, in 9 CAMBRIDGE, supra note 134, at 36, 48.

(140) ZHANG, supra note 139, at 27.

(141) 1-6 DAQING SHENGZU REN HUANGDI SHILU [THE VERITABLE RECORDS OF QING SHIZONG] 5.2a (1968); SUN WENLIANG & LI ZHITING, QING TAIZONG QUANZHUAN [A COMPLETE BIOGRAPHY OF QING TAIZONG] 266-67, 408-12 (1983); Zheng, supra note 123, at 314. Fulin also expressed interest in succeeding Ming precedents in administering the law. Jerry Dennerline, The Shun-chih Reign, in 9 CAMBRIDGE, supra note 114, at 109. For more on the early Qing interest in the Zhou-Tang model, see Roger Des Forges, Toward Another Tang or Zhou? Views from the Central Plain in the Shunzhi Reign, in TIME, TEMPORALITY, AND IMPERIAL TRANSITION: EAST ASIA FROM MING TO QING 73-112 (Lynn A. Struve ed., 2005).

(142) Dennerline, supra note 141, at 111.

(143) 1-6 DAQING SHENGZU REN HUANGDI SHILU, supra note 121, at 1647.

(144) Id.

(145) Id. at 3125; MACCORMACK, supra note 11, at 9, 22, 129, 162; JONATHAN O. SPENCE, EMPEROR OF CHINA: SELF-PORTRAIT OF K'ANG-HSI 29-33, 169 (1974); JONATHAN D. SPENCE, The K'ang-hsi Reign, in 9 CAMBRIDGE, supra note 134, at 130, 133, 143, 182.

(146) SILAS HSIU-LIANG WU, PASSAGE TO POWER: LIANG-HIS AND THE HEIR APPARENT, 1661-1722 (1979); YONGZHENG, YONGZHENG HUANGDI CHENG DASHI DE ERDA FANGLUE [YONGZHENG'S TWO STRATEGIES FOR ACHIEVING GREAT SUCCESS] 31 (Shi Sen trans, and ed., 2000).

(147) 39 DAQING SHENGZU REN HUANGDI SHILU, supra note 141, at 576. A skeptic, of course, might suggest that Yongzheng was here justifying the enhancement of his own power vis-a-vis a highly capable but independently minded official. That he felt required to appeal to the rule of law is significant. Id.

(148) PEI HUANG, AUTOCRACY AT WORK: A STUDY OF THE YUNG-CHENG PERIOD, 1723-1735 (1974); MACCORMACK, supra note 11, at 107; Zelin, supra note 135, at 218-21.

(149) JONATHAN D. SPENCE, TREASON BY THE BOOK 128-29 (2001).

(150) See generally HAROLD L. KAHN, MONARCHY IN THE EMPEROR'S EYES: IMAGE AND REALITY IN THE CH'IEN-LUNG REIGN (1971) (explaining the Qianlong reign (1735-1796) from the images of both the emperor himself and beholders). Woodside, supra note 134, at 304; see Guy, supra note 2, at 88 107. For Chen Hongmou, see

(151) WILLIAM ROWE, SAVING THE WORLD: CHEN HONGMOU AND ELITE CONSCIOUSNESS IN EIGHTEENTH-CENTURY CHINA (2001). For less positive views of Qianlong justice, see PHILIP A. KUHN, SOULSTEALERS: THE CHINESE SORCERY SCARE OF 1768 (1990).

(152) R. Randle Edwards, Ch'ing Legal Jurisdiction over Foreigners, in TRADITION, supra note 15, at 222-41.

(153) Id.

(154) Id. at 242-51.

(155) Id. at 251-60.

(156) For a very stimulating but rather different interpretation of matters of identity and sovereignty in the Qing confrontation with the West in this period, see LYDIA H. LIU, THE CLASH OF EMPIRES: THE INVENTION OF CHINA IN MODERN WORLD MAKING chs. 2-4 (2004).

(157) Scholars disagree about the sources and degrees of China's relative military weakness in the late nineteenth century. Yet both BENJAMIN A. ELMAN, ON THEIR OWN TERMS: SCIENCE IN CHINA, 1550-1900 chs. 8-11 (2005) and S.C.M. PAINE, THE S[NO-JAPANESE WAR OF 1894-1895: PERCEPTIONS, POWER, AND PRIMACY (2003) explain that China's military was not inferior to the West and Japan in the late nineteenth century.

(158) WILLIAM P. ALFORD, TO STEAL A BOOK IS AN ELEGANT OFFENSE 34-45 (1995).

(159) Id.

(160) Id.; Alford, supra note 6, at 51.

(161) Rosser H. Brockman, Commercial Contract Law in Late Nineteenth-Century Taiwan, in TRADITION, supra note 15, at 76-136; David Buxbaum, Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu from 1789 to 1895, 30 J. ASIAN STUD. 255-79 (1971).

(162) PHILIP C.C. HUANG, CODE, CUSTOM, AND LEGAL PRACTICE IN CHINA 23 (2000)

(163) Id. at 27; MACCORMACK, supra note 11, at xiv. See generally MARK A. ALLEE, LAW AND SOCIETY IN LATE IMPERIAL CHINA: NORTHEN TAIWAN IN THE NINTEENTH CENTURY (1994) (explaining the difference between civil and criminal laws in China); Mark A. Allee, Code, Culture, and Custom: Foundations of Civil Case Verdicts in a Nineteenth-Century County Court, in CIVIL LAW IN QING AND REPUBLICAN CHINA 122-41 (Kathryn Bernhardt & Philip C.C. Huang eds., 1994) [hereinafter CIVIL LAW]; PHILIP C.C. HUANG, Codified Law and Magisterial Adjudication in the Qing, in CIVIL LAW, supra, at 142 86; JING JUNJIAN, Legislation Related to the Civil Economy in the Qing Dynast)', in CIVIL LAW, supra, at 42-84.

(164) MARINUS J. MEIJER, THE INTRODUCTION OF MODERN CRIMINAL LAW IN CHINA 52 (1976). See generally HUANG, supra note 162, at 27-30 (explaining the background of the late Qing legal reform)

(165) MARINUS J. MEIJER, Slavery at the end of the Ch'ing Dynasty, in TRADITION, supra note 15, at 327-58.

(166) Id. In fact, inequality between Manchu and Han persisted. See generally EDWARD RHOADS, MANCHU AND HAN: ETHNIC RELATIONS AND POLITICAL POWER IN LATE QING AND EARLY REPUBLICAN CHINA, 1861-1928 (2000) (explaining the surge of the Manchu power in the last years of the Qing).

(167) See DIKOTTER, supra note 50, at 47-48, 66, 71, 77, 101-02, 108-11, 174; HUANG, supra note 162, at 39-40, 43-47, 54-55; Jerome Cohen, Introduction, in TRADITION, supra note 15, at 6; ALISON W. CONNER, Lawyers and the Legal Profession During the Republican Period, in CIVIL LAW, supra note 163, at 215-48 (tracing the professional and ethical development of lawyers in the Republican Period); MELISSA A. MACAULEY, Civil and Uncivil Disputes in Southeast Coastal China, in CIVIL LAW, supra note 163, at 84--121 (explaining the role and status of litigation masters). See generally Meijer, supra note 138, at 64-119, 190-202 (explaining the revisions in the criminal code drafted in the late Qing).

(168) DIKOTTER, supra note 50, at 79.

(169) ERNEST P. YOUNG, Politics in the aftermath of revolution: the era of Yuan Shih-k'ai, 1912-16, in 12 THE CAMBRIDGE HISTORY OF CHINA: REPUBLICAN CHINA 1912-1949, at 226, 243 (John K. Fairbank ed., 1983) [hereinafter 12 CAMBRIDGE].

(170) Id.

(171) See DIKOTTER, supra note 50, at 63, 79, 86, 93, 103; HUANG, supra note 137, at 55; YOUNG, supra note 169.

(172) DIKOTTER, supra note 50, at 191.

(173) Id.

(174) Id. at 283.

(175) HUANG, supra note 162, at 57-61.

(176) Id. at 62.

(177) Id. See generally KATHRYN BERNHARDT, WOMEN AND PROPERTY IN CHINA 960-1949 (1999) (explaining the expanding rights of women with regard to property and inheritance in Republican China).

(178) See DIKOTTER, supra note 50, at 78, 90, 91, 94, 97-99, 105-06, 137; FREDERIC W. WAKEMAN, POLICING SHANGHAI, 1927-1937, at 249-59 (1995).

(179) HUANG, supra note 162, at 63.

(180) Id.

(181) Id. at 63-64.

(182) Id. at 68.

(183) DIKOTTER, supra note 50, at 163-64, 179.

(184) LLOYD EASTMAN, THE ABORTIVE REVOLUTION: CHINA UNDER NATIONALIST RULE, 1927 1937, at 42 (1974).

(185) Id. at 43.

(186) Id. at 40.

(187) Id. at 45-46.

(188) JONATHAN FENBY, CHIANG KAI-SHEK: CHINA'S GENERALISSIMO AND THE NATION HE LOST 231 (2004).

(189) FREDERIC WAKEMAN JR, SPYMASTER: DAI LI AND THE CHINESE SECRET SERVICE 44-45 (2003).

(190) DIKOTTER, supra note 50, at 348-49; see generally MICHAEL SCHALLER, THE U.S CRUSADE IN CHINA, 1938-1945 ch. 11 (1979) (analyzing the scope of U.S. cooperation with the Guomindang).

QIANG FANG AND ROGER DES FORGES *

* Qiang Fang, Assistant Professor of History, Department of Social Science, Missouri Southern State University; Roger Des Forges, Professor, Department of History, State University of New York at Buffalo. We are grateful to the Baldy Center on Law and Public Policy of the Law School of the University at Buffalo for support for the research leading to this article. We also want to thank the staff of the Stanford Journal of International Law for their suggestions. We acknowledge particularly Lynn Mather and Laura Mangan for arranging a symposium at which and after which we received valuable comments from colleagues at the Law School including Rebecca French and David Engel.
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