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China

THE LEGAL SYSTEM

The Imperial Era

Contemporary social control is rooted in the Confucian past. The teachings of Confucius have had an enduring effect on Chinese life and have provided the basis for the social order through much of the country's history. Confucians believed in the fundamental goodness of man and advocated rule by moral persuasion in accordance with the concept of li (propriety), a set of generally accepted social values or norms of behavior. Li was enforced by society rather than by courts. Education was considered the key ingredient for maintaining order, and codes of law were intended only to supplement li, not to replace it (see The Hundred Schools of Thought , ch. 1; Traditional Society and Culture , ch. 3).

Confucians held that codified law was inadequate to provide meaningful guidance for the entire panorama of human activity, but they were not against using laws to control the most unruly elements in the society. The first criminal code was promulgated sometime between 455 and 395 B.C. There were also civil statutes, mostly concerned with land transactions.

Legalism, a competing school of thought during the Warring States period (475-221 B.C.), maintained that man was by nature evil and had to be controlled by strict rules of law and uniform justice. Legalist philosophy had its greatest impact during the first imperial dynasty, the Qin (221-207 B.C.; see The Imperial Era , ch. 1).

The Han dynasty (206 B.C.-A.D. 220) retained the basic legal system established under the Qin but modified some of the harsher aspects in line with the Confucian philosophy of social control based on ethical and moral persuasion. Most legal professionals were not lawyers but generalists trained in philosophy and literature. The local, classically trained, Confucian gentry played a crucial role as arbiters and handled all but the most serious local disputes.

This basic legal philosophy remained in effect for most of the imperial era. The criminal code was not comprehensive and often not written down, which left magistrates great flexibility during trials. The accused had no rights and relied on the mercy of the court; defendants were tortured to obtain confessions and often served long jail terms while awaiting trial. A court appearance, at minimum, resulted in loss of face, and the people were reluctant and afraid to use the courts. Rulers did little to make the courts more appealing, for if they stressed rule by law, they weakened their own moral influence.

In the final years of the Qing dynasty (1644-1911), reform advocates in the government implemented certain aspects of the modernized Japanese legal system, itself originally based on German judicial precedents (see The Hundred Days' Reform and the Aftermath , ch. 1). These efforts were short-lived and largely ineffective.

Data as of July 1987