Introduction
The fundamental laws of China emanated from traditions, customs, and declarations presented rulers of different regions. The first code that served as law emerged during 536 B.C. whose purpose was to regulate people as well as sustain order. During 221 B.C., the Chin Dynasty emerged with the role of establishing the first consolidated Chinese empire under the rule of an empire. The initiative received important support from the law code, which officials (Legalists) from the Chin Dynasty had drafted. Their principal aim was to eradicate the privileges affiliated with the high-status individuals to ensure that each person received equal treatment, thus safeguard the weak from the interests of the strong. The Legalists supported severe punishment for those people who violated the law to sustain order and hinder crime.
Furthermore, the Confucius followers (between 551 and 478 B.C.) were opposed to the Legalists, as they taught that family ancestors, the emperor, higher-ranking individuals, and senior relatives needed great respect. Hence, the penalties accorded to offenders were supposed to be different depending on social ranking or family. Also, the Confucians rejected the imposition of harsh treatment every time, mostly because they preferred every punishment to fit an offense’s severity depending on the case’s circumstances. 1
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For many years, the legal principles of the Confucians and Legalists amalgamated to serve as laws, which the emperor followed. The original all-inclusive law emerged in 653 A.D. during the era of Tang Dynasty. Afterward, every dynasty in authority revised as well as incorporated elements of the previous regime's code. Also, China introduced a judicial system, which was responsible for governing local courts as well as put in place an elaborate procedure for reviewing criminal cases. Therefore, the paper discusses that the revisions carried out by the legal system of China from Qing Dynasty transition to Republican period unveil a merger of worldwide influences, but also the efforts by the Chinese society to sustain their traditional values. The reviewed legal codes of China's legal system comprise of legal frameworks as well as concepts with matters about crime, although they support major Confucian values and influences all over.
Discussion
The Qing Code and Republican Revisions
The Qing Code (The Great Qing Code), which became apparent in China, is 1740 serves as the overall format that governs the civil and criminal laws of China. The Qing Code comprised of laws that governed the country more than 2,000 years ago. The Code used to serve as a set of guidelines, which local officials, referred to as magistrates and individuals in higher authorities. The guidelines aimed at revealing the punishment that each offense faced to, which the emperor agreed was vital in facilitating to sustain order and law in the country. 2
Initially, the Code served as a "punishments book" in the perspective of legalists. Nonetheless, in practical terms, the judicial structure emphasized on cases' facts as well as the ways that the laws were worded to ensure that a specified offense fitted a given punishment according to the perspective of the Confucians.
The initial Code’s part started as “The Five Punishments.” It outlined the traditional penalties that governed the entire Code in the case of civil and criminal offenses, although their ranking followed the form of severity apparent. For instance, beating using light bamboo sticks served as the lightest penalty, although it varied in five degrees ranging from ten to fifty strokes. The overall role of the sentence was to make a person feel embarrassed as well as serve as a physical punishment. The second penalty level involved the use of thick bamboo sticks to beat offenders, while the levels ranged between sixty and one hundred strokes. However, the strokes' numbers were minimized later by Qing when the light, as well as large dimensions of bamboo sticks meant for beating, were increased.
The third level of punishment revolved around requiring individuals to participate in forced labor in a region distinct from their home area. The purpose of the penalty was to subject law offenders to a form of enslavement and disgrace. It comprised of time amount, which ranged between one and three years in addition to between sixty and one hundred strokes using thick bamboo sticks. No prisons existed, but lockup prevailed for individuals accused of certain offenses while eyewitnesses awaited a case’s outcome in a holding area.
Fourthly, a life exile serves as a severe form of penalty as it aimed at removing an individual from rituals and society from the ancestors, graves. The level of the punishment depended on the distance that a person had to go from home ranging between seven hundred and one thousand miles in addition to one hundred strokes using the thick bamboo stick. The emperor also utilized this form of penalty, as he lacked the mandate to issue a capital punishment. 3
The last official penalty revolved around death and revolved around two levels, including cord strangulation and beheading. However, Qing introduced a third level, which entailed "slicing." It used to be a slow death whereby an offender would be cut many times in the body before being beheaded eventually. This form of penalty targeted wicked criminals, who typically participated in activities such as treason or killing of a grandparent or parent. The death penalties would be delayed to await the yearly meeting of the Autumn Court to recommend or confirm sentence reduction or immediate. The emperor was the one responsible for approving all the sentences revolving around the death penalty.
In addition to the five traditional forms of punishments, others comprised of tattooing, whipping, putting on a wooden and paying a certain amount of money to cater for the Code's sentence. Substitution with money regularly targeted women aged over 70 years, officials in government, as well as children below 16 years. The Code comprised of about 4,000 offenses, which were punishable. More than 800 of the crimes advocated for capital punishment although a considerable number of them condemned the individuals who broke the law, while they reduced sentences after the emperor and higher officials reviewed their cases.
The laws (statutes) of the Code did not receive any form of arrangement regarding the subject. Rather, they followed the department of the government with which they were applicable. The units comprised of revenue, administration, as well as several civil law rituals, matters, public works, Punishment's Board (responsible for addressing criminal cases), and public works. The code also comprised of 436 statutes as well as numerous sub-statues. 4
One of the major principles affiliated with the Code resulted from the Confucian notion. It implied that males and senior members of a family received higher status. For instance, in case a senior person stroke a parent, the penalty for such an act was beheading. Nevertheless, no punishment existed in case a parent stroke a son unless it resulted in the death of the son. Even in such a situation, the penalty accorded did not amount to death.
The magistrate was supposed to link his verdict as well as punishment with the relevant Code's statute. In case no direct law could be applied to a given case, the magistrate was advised by the Code to judge based on analogy. Here, the judge was supposed to look for a sub-statute or statute apparent in the Code, which was carefully described the act for a given case then apply the stipulated punishment.
Furthermore, the magistrate could decide to choose a sentence whereby an offender would be stroke 40 times using a light bamboo or 80 strokes for a dense bamboo for engaging in an act that is considered wrong. After deciding the penalty to apply, the magistrate further received instructions from the Code to determine if the offense is minor or severe in line with the situation surrounding the death.
The Code declared that each law entered into force once its proclamation. Here, in case the offense took place out before a certain law was in place, the new law was the one supposed to determine the punishment that should prevail. As such, Code supported ex-post facto rules. 5
Foreign Ideas in Revised Code
The various provisions of the Qing Code go through to numerous revisions and introduction to Republican codes over the years. For instance, questions arise as to how the Chinese responded during the nineteenth century after the powers from the West defeated them before deciding to give into various influential spheres. Initially, they showed signs of confusion as well as uncertainty concerning the direction they should follow. Faced with pressures from both within and outside, they witnessed challenges posed by the massive population growth, unpredictable situations of the economy, as well as the numerous rebellions that prevailed for the entire century. The Chinese firstly shows signs of fear to embark on any significant changes, since they believed that such a move would interfere with the customs and traditions they had accumulated for many years, especially if they decided to follow the influence from the West.
Before the Chinese agreed to any reforms, scholars considered as from an official class were first supposed to support the need for embarking on the change. Most of them, however, remained in the status quo, which received the safeguard of their power and position, while they also felt that they served as China's source of greatness for many years. Some argued that it was not possible based on the challenge they witnessed from the arms of the West. Thus, for most of the 19 th century, it served as a time that characterized by debates concerning whether China should embark on modernization or not. Furthermore, in case the country decided to embark on the modernization process, questions arose as to what extent it should support the influence of the West.
For instance, Japan served as the closest westernized and modern nation to China. The emergence of Japan to power at the start of the 20 th century contributed significantly to the legal modernization of China. For instance, after Japan abolished its extra-territorial rights, the Chinese developed the desire of doing the same. Furthermore, this move made it possible for young scholars from China to visit Japan and study the new law modern law. Because the two nations have similar legal and regulatory frameworks, the Chinese students returned to China where they introduced the new rules. 6
Also, because the two countries had similar legal values, cultures, history, and language, the Chinese were significantly influenced by the way in which the Japanese had incorporated the Civil Code of Germany to their unique legal tradition. It to take place since the model by the Japanese served was considered as a civil law tradition, which the Far Eastern society had adopted. The Japanese model's influence became more apparent when the Qing government started reforming the legal system of China. It welcomed foreign professionals to assist in the process of changing the laws of the country. Most of the experts came from Japan to help the Qing government is examining, revising, and drafting laws for the country as well as taught in both private and public schools.
The German model influenced the Chinese law as it prevailed in the Draft Civil Code, which also served as the archetype model employed by the Japanese. It followed the German Civil Code through supporting a subdivision of the five books, which comprised of "Law of Obligations," General Principles," Law of Things," Succession," and "Family." Additionally, the draft of Qing Civil Code also followed the approach by Germans through separating civil code from the individual commercials code. Thus, it is apparent that the Japanese and Germany law system models had notable influence in China's legal systems.
Furthermore, in the case of the Chinese legal system, Panopticon prisons were also introduced by the British to facilitate in situations whereby the individuals held for engaging in certain criminal activities would be locked whereby they would not know whether they were under observation. Here, they used to act in such a way they were under scrutiny throughout, hence regulate their behaviors on a constant basis. The eyewitnesses would also remain locked in different rooms where they would await the cases outcome. The introduced the system to facilitate in regulating the behavior of individuals locked for committing or suspected of engaging in certain crimes before the results of the case could be determined. Thus, this played a vital role regarding ensuring that individuals would not face severe penalties, particularly if they did not commit any offense. 7
Confucianism Presence in Codes
Relating to the prevalence of Confucianism in the case of Legalists and Confucians, various scholars affiliated with the Confucian side referred to the study of the West as "barbarian" technology to support their notion of resisting the pressures from the West. For example, Feng Guifen served as one of the individuals who followed the urge to resist affiliation with the West. During the 1860s, for instance, he wrote the "Western Learning" selection when the West defeated China for the second time, while it lacked unequal treaties. Since his ideas spread in a hostile manner, he failed to publish it until many years had passed. According to Feng, he argued that China should consider adopting technology from the West while making sure that it retains its values. Other individuals, such as Yan Fu, did not believe that this suggestion by Fend was practical. Fu revealed that it would not have been possible to borrow technology of the West without incorporating their science as well as the democratic government system, which supported the growth of their science.
The debate revolved around the country up to the late years of the 19 th century's second half while China was slowly giving to some influence spheres. The Germans occupied the northeast of China, French the southeast, northwest the Russians, British to the south, and Japanese to the south. Even when their neighbor, Japan, defeated the Chinese, they were not entirely convinced of the need for embarking on any reform process or believe that believe that Change would support the survival of China.
During the entire 19 th as well as 20 th centuries, thinkers from China participated in numerous debates concerning how they would change the technology of China while sustaining the traditional culture and values. Gradually, however, individual philosophers started believing that welcoming machines and guns from the West were not sufficient. The reform efforts' ineffectiveness made them think that China's traditional system was serving as the hindrance to the modernization of the country as well as the country's capability to cope with foreigners. 8
In the 1800s, an expedition for new China started since the Chinese during that time embarked on debates concerning how they could borrow from Japan and the West what they perceived as useful to facilitate in industrialization and economic development without losing focus on the Chinese cultural essence. In this perspective, therefore, it is apparent that the issue of Confucianism is still evident in the revised legal codes of the Chinese legal system, while traditional Chinese values are still influential and applicable in the present society.
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1 AFE, “From Reform to Revolution, 1842 to 1911," Columbia University, last modified June 30, 2016, http://afe.easia.columbia.edu/special/china_1750_reform.htm.
2 Robert C Sheng, "Revised penal code of China," China Law Review 7.1 (1935): 137-143.
3 Geoffrey MacCormack, The Spirit of Traditional Chinese Law, (Georgia: University of Georgia Press, 1996), 109.
4 Pan, Ming-te, "Yes Your Honor I am Innocent: Law and Society in the Late Imperial China," State University of New York, last modified June 30, 2016, http://www.columbia.edu/cu/weai/exeas/resources/your-honor.html.
5 Geoffrey MacCormack, The Spirit of Traditional Chinese Law, (Georgia: University of Georgia Press, 1996), 111.
6 AFE, “From Reform to Revolution, 1842 to 1911," Columbia University, last modified June 30, 2016, http://afe.easia.columbia.edu/special/china_1750_reform.htm.
7 Geoffrey MacCormack, The Spirit of Traditional Chinese Law, (Georgia: University of Georgia Press, 1996), 67.
8 Pan, Ming-te, "Yes Your Honor I am Innocent: Law and Society in the Late Imperial China," State University of New York, last modified June 30, 2016, http://www.columbia.edu/cu/weai/exeas/resources/your-honor.html.
