I often wonder what law was like in ancient China. To investigate this I decided to look in the Han Shu. The Han Shu, or Book of Han, is the official history of the Western Han (200-9 BC) that was undertaken by government officials during the Eastern Han (25-220 AD). The Book of Han has a section of treatises that cover cultural and scientific topics, and that’s where I found an article called “Treatise on Punishment and Law“. I decided to translate the first paragraph of this article to find out what its contents are like and whether or not we can learn anything interesting about ancient Chinese law from it.
It begins, somewhat unexpectedly, by discussing human nature:
夫人宵天地之䫉,懷五常之性,聰明精粹,有生之最靈者也
Humankind emerged from the face of heaven and earth, containing the nature of the five constants, intelligent and clear, the most nimble of all life.
爪牙不足以供耆欲,趨走不足以避利害,無毛羽以禦寒暑,必將役物以為養,任智而不恃力,此其所以為貴也
Hand and tooth are not enough to provide for want, running away is not sufficient to escape harm, we have no hair or feathers to protect from heat and cold. So we must rely on the use of things to live. We employ our intelligence and don’t rely on the use of force, this is how we become valuable.
It continues with a discussion of why confucian values (benevolence, love, deference etc) are necessary for effective leadership. Leaders must rely on effective paradigms to manage groups effectively, and Confucianism is an effective paradigm because it promotes values that allow people to live together harmoniously and respect leadership.
故不仁愛則不能群,不能群則不勝物,不勝物則養不足
Therefore if there is no benevolence and love there will be no cohesive group. If you can’t form a group then you can’t master the material world. If you can’t master the material world then you can’t support life.
群而不足,爭心將作,上聖卓然先行敬讓博愛之德者,眾心說而從之
If you have a group but there is still a lack of resources, there will be contention within the group. The sages brilliantly set forth the virtues of respect, deference, and broad love, the people’s hearts were happy and they followed this example.
從之成群,是為君矣;歸而往之,是為王矣。洪範曰:「天子作民父母,為天下王。」
If someone has followers who form a group, this person is a ruler. If people come to them from far and wide, this person is a king. Hon Fan said: “The son of heaven is the father and mother of the people, the king of all under heaven”.
The parental metaphor is more than just a trick of language: the king is referred to as the “father and mother” of the people because confucian values operate within a framework modeled off of the nuclear family.
聖人取類以正名,而謂君為父母,明仁愛德讓,王道之本也
The sages use categories to rectify names, and so call the ruler “father and mother” to make clear the benevolence, love, virtue and deference. This is the root of the kingly way.
But like parents, the ruler demands respect in exchange for love, and also deals out punishments. A fundamental duality is established with respect to the implementation of confucian values within the state:
愛待敬而不敗,德須威而久立,故制禮以崇敬,作刑以明威也。
If love carries respect then it will not be defeated, virtue must have power and then it will endure. Therefore the ritual system is used to gain honor and respect, and punishments are employed to clarify power.
Returning to the connection between intelligence and nature, the following passage sets up a direct connection between the duality of rites and punishments and the two aspects of nature: heaven and earth.
聖人既躬明悊之性,必通天地之心,制禮作教,立法設刑,動緣民情,而則天象地
Because the sages are personally endowed with a keen wisdom by nature, they necessarily penetrate the heart of heaven and earth. They institute rituals to instruct, and they set up laws to establish punishments. In this way they manage the circumstances of the people, and accord with heaven and the shape of earth.
故曰先王立禮,「則天之明,因地之性」也。
Therefore it is said that the sage kings established the rites “principled on the brilliance of heaven and according to the nature of earth.”
刑罰威獄,以類天之震曜殺戮也;溫慈惠和,以效天之生殖長育也。
Punishments, fines, power and prison are like the heavens trembling awesome death. Warmth, charity, kindness and harmony are like the nurturing power of heaven to grow life.
《書》云「天秩有禮」,「天討有罪」。
The Book of Shang states: “Heaven distinguishes those who are courteous, heaven strikes down those who are criminal.”
故聖人因天秩而制五禮,因天討而作五刑。
Therefore the sages, because of “heaven’s distinguishes” established the five rites, and because of “heaven punishes” made the five punishments.
There’s a lot going on here. This translation was hard, and a proper thesis would be full of notations at this point. The general idea is that earth is harmonious: it is covered with forests, mountains, valleys and plains, and each habitat houses creatures adapted to their environment. Our author states that rituals and social customs foster harmony and order within human civilization in the same way that the earth naturally births such order. Because humans are born without such harmonious structures, sages whose heart is directly connected to nature must design and implement them.
In contrast to this, heaven sends fiery lightning, earthquakes and floods that sew destruction on the earth. In the same way, human civilization must be complete with terrifying punishments that effect corrective action against people who go against the harmoniousness of the ritual based society.
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Now that we’ve gone through the first paragraph of this article, what have we learned? First, the article presents a theory of human nature which I have seen repeated often in ancient Chinese philosophical texts. This theory holds that humankind is a part of nature, but is also unique in that we rely on intelligence and artifice instead of instinct. The intelligence of “sages”, geniuses, or wise rulers is directly connected to the creative wellspring of nature itself.
The article sets forth Confucianism as the ideal paradigm for managing a large group of people. It does so by providing a duality of nurturing love on the one hand and awe inspiring authority on the other. This duality extends the idea of the loving but stern parents onto the state itself.
Finally, A connection is made between the rites/punishments duality of confucianism and the nature of reality itself. The nurturing aspect of confucianism is compared to the nurturing qualities of earth, whereas punishments are compared to the actions of an anthropomorphic heaven that deals out earth shattering judgements upon human society.
Unfortunately, there wasn’t any information about the actual nature of law, policy making, or judicial process. To find out about that, I’ll just have to keep searching.














