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The Theory of Law in the Ching-fa

Published online by Cambridge University Press:  26 March 2015

Karen Turner
Karen Turner*
Affiliation:
Department of History, Holy Cross College Worchester, Massachusetts
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Extract

The Ching-fa, one of the four “lost” books attached to the Ma-wang-tui Lao tzu, addresses issues of universal concern for legal theory. This paper examines how the Ching-fa's nine short theaties present fa linked with tao as a Law or model for guiding and judging the legitimacy of the ruler's use of coercion. I attempt to demonstrate that the conception of a universal and timeless Law offered a more universally applicable standard for governing than did the old laws based on the practices of the ancient sage kings. The text's notion of law linked with a timeless, natural principle, tao, is compared with early Western theories of universal law and its relation to justice. I conclude that the content and ultimate purposes of law are different in these early traditions but that in both cases the emerging imperial states were better served by theories of law based on abstract standards rather than on particular histories and customs.

Type
Articles
Information
Early China , Volume 14 , 1989 , pp. 55 - 76
Copyright
Copyright © Society for the Study of Early China 1989

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References

1. Starr, Chester G., “Reflections on the Problem of Generalization,” in Generalization in the Writing of History, ed. Gottschalk, Louis (Chicago: University of Chicago Press, 1963), 6 Google Scholar.

2. Ching-fa is the modern title given to a series of short treatises, named: “Tao-fa” “Ming-li” “Liu-fen” “Lun” , “Lun-yüeh” , “Kuo-tz’u” , “Chün-cheng” IE, , “Wang-Lun” , and “Ssu-tu” . I have consulted three editions of the Ching-fa: 1) Ma-wang-tui Han-mu po-shu, (Shanghai: Wen-wu ch'u-pan-she, 1974); 2 Google Scholar) Ma-wang-tui Han-mu po-shu Ching fa (Peking: Wen-wu ch'u-pan-she, 1976); 3)Google Scholar Ma-wang-tui Han-mu po-shu (Peking: Wen-wu ch'u-pan-she, 1980)Google Scholar. In this paper, citations are from the 1980 text and are indicated by the title of the individual sections, which are usually no more than one page in length.

3. This paper condenses themes that I am pursuing in a book on rulership and law in the early empires in China. The texts that I have selected to illustrate my argument in this essay were chosen because they address very directly the problems of defining a role for law in government.

4. Opinions on the dating and attribution of the Ma-wang-tui finds have been surveyed by several American scholars, perhaps most thoroughly in Wei-ming, Tu, “The ‘Thought of Huang-Lao’: A Reflection on the Lao Tzu and Huang Ti Texts in the Silk Manuscripts of Ma-Wang-Tui,” The Journal of Asian Studies 39 (1979), 95–110 Google Scholar, and need not be repeated in detail here. We know that the four “lost” books were in circulation in Han Wen-ti's reign (179-157 B.C.), because the occupant of tomb number three, the son of the Marquis of Tai , chief minister to the kings of Ch'ang-sha, died in 168 B.C., Wen-ti's fifth year.

5. Tu Wei-ming in “The Thought of Huang-Lao,” p. 103, terms the Taoist thought in the Mawangtui materials a “purposive” Taoism. Yün-hua, Jan agrees that the texts represent an activist strain of Taoism; see his detailed study of the philosophy of the four lost books: “Tao, Principle, and Law: The Three Key Concepts in the Yellow Emperor Taoism,” Journal of Chinese Philosophy, 7 (1980), 205-28CrossRefGoogle Scholar.

6. See Wei-ming, Chang and Chieh-chün, Ho Ma-wang-tui Han-mu (Peking: Wen-wu ch'u-pan she, 1982), 95 Google Scholar. The authors state that they will not take a position on whether the texts on law form part of a larger lost work, but declare: “One point about which there is no doubt is that these four lost books are the important product of a pre-Ch'in Huang-Lao tradition.” Precisely how long before Ch'in the texts were composed is still open to question. Chin Ch'un-feng sees the four lost books as products of the early to middle Chan-kuo period when “rule of law replaced rule by rites”; see Ch'un-feng, Chin “Lun Huang-Lao po-shu te chu-yao ssu-hsiang” , Ch'iu So 1986.2, 54–60 Google Scholar. Uchiyama Toshihiko detects strong Mohist sympathies as well as Confucian ideas in the silk books and argues that they must have been written at the end of the Warring States period, because only then did such a highly eclectic blend of thought appear. He points out too that terms like san-kung and wu-ti did not appear until late in the Warring States and that Huang-ti — an institution-builder above all — did not become an important figure in mythology until that time; see his “Maōtai kinsho ‘Keihō,’ ‘Jūdaikei,’ ‘Shō,’ ‘Dōgen’ shōkō” Tōhōgaku , 56 (1978), 1–15 Google Scholar. Kanaya Osamu points out, however, that the four lost books are not the work of one author. He finds strong similarities between the Ching-fa and the sections of the Kuan-tzu that describe a tao-fa point of view and dates these sections of the Kuan-tzu to about 300 B.C. He places the Shih-liu-ching in the early Han, in part because it uses Huang-ti as a model; see Osamu, Kanaya, “Sen-Shin ni okeru hōshisō no tenkai” , Shūkan tōyogaku , 47 (1982), 1-10Google Scholar.

7. Huo Ts’un-fu and Su Chin , for example, argue that Huang-Lao advocacy of the welfare of the people, coupled with the lessons learned from Ch'in's demise, encouraged early Han rulers to lighten demands for taxes and labor and to offset punishments with acts of beneficence; see “Huang-Lao te fa-lü ssu-hsiang yü Wen Ching chih chih” , Chi-lin ta-hsüeh she-hui k'o-hsüeh hsüeh-pao 1985.4, 15–21 Google Scholar.

8. Bodde, Derk and Morris, Clarence, Law in Imperial China, Exemplified by 190 Ch'ing Dynasty Cases (Philadelphia: University of Pennsylvania Press, 1967), 13 Google Scholar, describe traditional prejudice against law in China, arguing that it was always considered secular, punitive law and was abhorred not only as a “violation of human morality, but perhaps even of the total cosmic order.” Needham, Joseph, Science and Civilisation in China, Vol. 2 (Cambridge: University Press, 1956), 544 Google Scholar, contrasts the informal, moral li with the arbitrary, punitive fa of the Legalists, “which was to be the pure will of the lawgiver, irrespective of what the generally accepted mores or morality might be and capable of running quite contrary to it if the welfare of the state should so require.” A more recent argument that fa in the Legalist texts referred to punitive law derived purely from the ruler is put forth in Ames, Roger T., The Art of Rulership: A Study in Ancient Chinese Political Thought (Honolulu: University of Hawaii Press, 1983)Google Scholar; see especially pp. 125-41.

9. For a more extensive treatment of the relationship between law and rulership in the late Chan-kuo and early Han periods, see Turner-Gottschang, Karen, “Chinese Despotism Reconsidered: Monarchy and Its Critics in the Ch'in and Early Han Empires” (Ph.D. diss., University of Michigan, 1983)Google Scholar.

10. In a recent conference paper, Chad Hansen offered a critique of traditional sinological views of the meaning of fa; “Fa: Laws or Standards,” New England Association for Asian Studies Meeting, Middletown, CT, October 1988.

11. See especially Tu Wei-ming, “The Thought of Huang-Lao,” 103, and Jan Yün- hua, “Tao, Principle and the Law,” 207-10.

12. See, for example, T'ang Hsin , “Fa-chia tui Huang-Lao chih hsüeh te hsi- shou ho kai-tsao” , Wen-wu 1975.8,18-22. T'ang Hsin observes that the Ma-wang-tui texts, which he considers Legalist writings, supply the critical link between fa and tao, giving law a new legitimacy. A similar argument was made by Ch'eng Wu (T'ian Ch'ang-wu ), who concluded that the new materials bolster the authority of fa by presenting law as the concrete social realization of tao; “Han-ch'u Huang-Lao ssu-hsiang ho fa-chia lu- hsien” Wen-wu 1974.10,43-47.

13. Hsin-hsien, Jao , “Han ch'u Huang-Lao hsüeh-p'ai fa-lü ssu-hsiang lüeh-shuo” , Fa-lü-shih lun-ts'ung 1983.3, 326–38Google Scholar.

14. Tetsuo, Shimamori , “Kō-Rō shisō no kōzō to ichi: Keihō nado shihen o yonde kangaeru” Shakan tōyōgaku , 45 (1981), 1–16 Google Scholar.

15. See Kanaya Osamu, “Sen-Shin ni okeru hōshisō no tenkei,” 8.

16. For another view of Han Fei-tzu's thought and the silk books of the Huarig-Lao school, see Shun, Chang (Leo Chang) and Hsiao-po, Wang , Han Fei ssu-hsiang te li-shih yen-chiu (Peking: Chung-hua shu-chu, 1986)Google Scholar.

17. Chin Ch'un-feng notes that the Huang-Lao silk books are concerned with the dual problem of establishing rule of law internally and punishing outside aggressors; see “Lun Huang-Lao po-shu te chu-yao ssu-hsiang,” 58.

18. See Joseph Needham, Science and Civilization, vol. 2,518-69; see also Escarra, Jean, Le Droit Chinois: Conception et Evolution, Institutions Legislatives et Judiciares, Science et Enseignement, (Peking and Paris: Library of the Sirey, 1936)Google Scholar. Needham and Escarra argue that no mutual divine source for laws of nature and juridical natural law existed in China, leaving positive law separate from morality and custom.

19. Cicero, The Republic III.xxii; see De Re Publica, De Legibus, trans. Keyes, Clinton W., The Loeb Classical Library, (Cambridge: Harvard University Press, 1928), 211 Google Scholar.

20. See Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)Google Scholar for a valuable discussion of natural law in ancient and contemporary legal theory in the West.

21. Weber, Max, The Theory of Social and Economic Organization, trans. Henderson, A.M. and Parsons, Talcott (New York: The Free Press, 1964), 130–31Google Scholar.

22. For a description of Germanic concepts of the ruler and the old laws, see Kern, Fritz, Kingship and Law in the Middle Ages, trans. Chrimes, S.B. (New York: Praeger, 1956)Google Scholar.

23. Mcllwain, Charles, The Growth of Political Thought in the West (New York: MacMillan, 1932), 106 Google Scholar.

24. Shih-chi (Peking: Chung-hua shu-chu, 1959), 118.3077Google Scholar.

25. Shih-chi 106.2825.

26. Han-shu (Peking: Chung-hua shu-chu, 1962), 65.2852Google Scholar.

27. Shih-chi 122.3153.

28. Kuan-tzu (SPPY ed.), 15.6a-b.

29. Kuan-tzu 6.7a. I have followed the translation of Rickett, W. Allyn; Guanzi: Political, Economic, and Philosophical Essays from Early China, vol. 1 (Princeton: Princeton University Press, 1985), 260–61Google Scholar.

30. Chia Yi was employed by the Legalist Wu-kung , Han Wen-ti's t'ing-wei, because of his understanding of the old books; Shih-chi 84.2491-92. Ch'ao Ts'o studied the teachings of Shen Pu-hai and Shang Yang but he also worked with the great master of the Shu-ching, Fu-sheng , thus gaining both Legalist and Confucian training; Shih-chi 101.2745-46.

31. Shih-chi 122.3138.

32. See McKnight, Brian, The Quality of Mercy: Amnesties and Traditional Chinese Justice (Honolulu: University of Hawaii Press, 1981)Google Scholar. For a study of legal reform in the Han, see Hulsewé, A.F.P., Remnants of Han Law, vol. 1 (Leiden: E.J. Brill, 1955)Google Scholar. Reading through these materials, one can determine that most of the ruler's activities involved reviewing the laws, especially those involving the death penalty.

33. See, for example, Han Yüan-ti's complaint that the laws had become too numerous to be understood, referred to on p. 67 below. In an unpublished conference paper, “The Decline of Han Law,” presented to the Association for Asian Studies, Boston, March 1986, Jack Dull has documented the growing complexity of law in the Han.

34. Maine, Henry, Ancient Law (New York: Henry Holt, 1888), 20–28 Google Scholar.

35. Han-shu 23.1103; see also Hulsewé, Remnants of Han Law, 340.

36. Han-shu 23.1104; see also Hulsewé, Remnants of Han Law, 341.

37. Shih-chi 122.3139.

38. Shih-chi 121.3125. Wallacher, Benjamin E. has discussed the Ch'un-ch'iu as a source for legal authority in “The Spring and Autumn Annals as a Source of Law in Han China,” Journal of Chinese Studies, 2 (1985), 59–72 Google Scholar.

39. Han Fei-tzu chi-shih (Shanghai: Chung-hua shu-chu, 1958) vol. 1, 4.239Google Scholar. See The Complete Works of Han Fei Tzu: A Classic of Chinese Legalism, trans. Liao, W.K. (London: Arthur Probstain, 1939), vol 1,115Google Scholar.

40. Lü-shih Ch'un-ch'iu (SPPY ed.) 15.17b.

41. Shih-chi 6.243,245.

42. Han-shu 49.2296.

43. Han-shu 23.1103; see Hulsewé, Remnants of Han law, 339–40.

44. Kuan-tzu 6.4b-5a; see Rickett, Guanzi, 256–57.

45. Huai-nan-tzu, 9.13b; see Ames, The Art of Rulership, 190.

46. Han Fei-tzu chi-shih, vol. 1,4.248; see Liao, The Complete Works of Han Fei Tzu, vol. 1,124-25. For a good discussion of Han Fei-tzu's conception of tao, see Chang, Leo and Wang, Hsiao-po, The Philosophical Foundations of Han Fei's Political Theory, Monograph No. 7 of the Society for Asian and Comparative Philosophy (Honolulu: University of Hawaii Press, 1986), 3–56 Google Scholar.

47. Shih may refer to “forms” for investigating and reporting legal cases, which are described in the Shui-hu-ti materials; see McLeod, Katrina C.D. and Yates, Robin D.S., “Forms of Ch'in Law: An Annotated Translation of the Feng-chen shih,” Harvard Journal of Asiatic Studies, 41.1 (1981), 111–63CrossRefGoogle Scholar.

48. Tu, “The Thought of Huang-Lao,” 103.

49. Kanaya Osamu, “Sen-Shin ni okeru hōshisō no tenkei,” 3, notes that frequent references to t'ien in the Ching-fa indicate the author's preoccupation with Heaven as the ultimate agent in control of the human and the natural worlds.

50. Huo Ts'un-fu and Su Chin in “Huang-Lao te fa-lü ssu-hsiang,” point out that the silk books place great weight on the ruler's need to respect the material needs of the people in order to win their support.

51. In the Ching-fa, shen-ming is the essential factor for understanding how to rule in accord with the tao. It is a concept found in other eclectic texts, among which the the Huai-nan-tzu may give the clearest explication (15.16a):

If he sees what others cannot, he is said to be clear-minded and if knows what others do not, he is said to be sagely. One with shen-ming is the supreme conqueror.

Roth, H. D., “The Concept of Human Nature in the Huai-nan Tzu ,” Journal of Chinese Philosophy, 12 (1985), 1–22 CrossRefGoogle Scholar, describes shen as “ground of consciousness”, which when clear allows the sage to discern the pattern of things.

52. For a survey of legal realism in contemporary Western thought, see Bodenheimer, Edgar, Jurisprudence: The Philosophy and Method of the Law (Cambridge: Harvard University Press, 1962), 89–177 Google Scholar.

53. Ibid., p 177.

54. For one view of the collective aspect of Plato's concept of justice see Lycos, Kimon, Plato on Justice and Power (Albany, New York: State University of New York Press, 1987)CrossRefGoogle Scholar. Lycos argues that for Plato, the aim of justice was not freedom from the intervention of the state, but rather secure membership in a community in which the rules were known, revered, and followed by all. For a comparative study of rule of law and concepts of justice, see Turner, Karen, “Sage Kings and Laws in the Chinese and Greek Traditions,” The Heritage of China: Essays in Chinese Civilization in Comparative Perspective, ed. Ropp, Paul, (Berkeley: University of California Press, forthcoming)Google Scholar.

55. See Bodenheimer, Jurisprudence, 180-81, for an analysis of distributive and corrective justice in Aristotle's political thought.

56. Huai-nan-tzu 9.14a See Ames, The Art of Rulership, 191. The text goes on to admonish the ruler to exemplify good conduct so that his laws will be implemented and followed.

57. Shih-chi 104.2778-79.

58. Shimamori Tetsuo, “Kō-Rō shisō no kōzō to ichi,” 12-13, offers an explanation for the disappearance of Huang Lao thought; though effective in advocating a balance between local autonomy and central control in the early years of empire, it could not offer practical guidance for the problems faced by a mature and expansionist regime.