Crime and Punishment in Ancient China and Its Relevance Today

• Author: Yujia Zhai,Wenjun Xu,Xiuhua Zhang,Tianyu Yao
• Published date: 01 November 2017
• Date: 01 November 2017
• DOI: http://doi.org/10.1111/ajes.12205

Crime and Punishment in Ancient China

and Its Relevance Today

By XIUHUA ZHANG*, TIANYU YAO†, WENJUN XU‡, and YUJIA ZHAI§

ABSTRACT. The legal system of a nation and its response to crime

reflect the economic, political, and cultural conditions prevailing at the

time, as well as popular values and customs. In the case of China, the

oldest continuous civilization in the world, the criminal justice system

contains ancient traditions that are still influential. The cosmological

tradition, which has the longest history, treated nature as the victim

when human actions violated social norms. Thus, harsh punishments

were imposed that rigidly mimicked violent aspects of nature: if the

victim died, even by accident, someone must die to balance the harm

caused to nature. The Confucian tradition developed a competing

natural philosophy that tempered punishment by restoring social and

natural order through moral education about proper behavior.

Confucianism was designed to maintain civility in the absence of

central authority by persuading leaders to create a harmonious society

based on the limited use of raw power and punishment. Finally, the

Legalist tradition restored harsh punishment as a way to impose order

upon a fragmented society in which local despots had been carrying

out arbitrary judgments. But Legalism carried the seeds of its own

destruction and required Confucianism to balance it in creating a

durable system of governance and justice. Each tradition developed as

a way of solving a specific set of social and political problems, and

each persisted as a partial solution to perennial questions about how to

deal with social disorder. Even though criminal justice in China was

Westernized after 1911, the older traditions still have an influence.

Socialism has modified traditions of crime and punishment to some

*Xiuhua ZHANG : Professor at China University of Political Science and Law

(CUPL), Beijing; Director, Research Center of Process Marxism and Philosophy of

Praxis at CUPL. Email: xiuhuaz@cupl.edu.cn.

†Tianyu YAO: PhD candidate, CUPL.

‡Wenjun XU: PhD candidate, CUPL.

§Yujia ZHAI: LLM and staff, CUPL.

American Journal of Economics and Sociology, Vol. 76, No. 5 (November, 2017).

DOI: 10.1111/ajes.12205

V

C2017 American Journal of Economics and Sociology, Inc.

extent, but the overriding concern for social order and the ability of the

state to guide society has not diminished.

Introduction

1

The structure of a legal system is a measure of the degree of civilization

in a country. But there is no single correct pattern of civilization. Differ-

ent cultures weighcompeting values differently.

Every legal system reflects the political-economic conditions and the

values and cultural patterns of the nation in which it arose. The Western

idea of law came from the Bible, Greek philosophy, Stoicism, Roman

ideas of universality, and Germanic law. Law is always related to cul-

ture, and any effort to transplant law from one culture to another will

either fail or involve considerable adaptation. China is under pressure

from foreign governments and businesses to comply with Western

ideas about the “rule of law,” a system in which law transcends society.

But the dominant view in China has always held that law is a social cre-

ation, not a set of norms that exist independentof social interaction.

With respect to questions about punishment and its severity, there

are three competing traditions in China that pull in different directions.

The first and oldest is the cosmological tradition, which sees law as a

part of the natural order. It has favored harsh punishment on the theory

that nature suffers from human violence and must be repaid. The sec-

ond tradition is Legalism, which views law as completely unrelated to

nature. It used the law and extreme punishments to mold the people to

the will of the emperor. The third tradition is a modified form of Confu-

cian ethics, which unites politics, morality, and natural law in a way

that is intended to minimize punishment by inculcating practices that

will create social harmony. Confucianism might be regarded as a form

of restorative or preventive justice, although it developed along differ-

ent lines than recent Western practices. These three traditions have all

persisted in China since ancient times.

Any shift in the criminal justice system in China from punishment to

rehabilitation is more likely to arise from China’s own traditions than

from Western concepts. Therefore, it is of great significance to reexam-

ine ancient Chinese thought and practice regarding crime and

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