Let us now consider the notions of law as they existed in the
primitive Chinese mind. As all government was supposed to be based
on the natural laws of the universe, of which universal law or
order of things, the Emperor, as "Son of Heaven," was (subject to
his own obedience to it) the supreme mouthpiece or expression,
there lay upon him no duty to define that manifest law; when it
was broken, it was for him to say that it was broken, and to
punish the breach. Nature's bounty is the spring, and therefore
rewards are conferred in spring; nature's fall is in the autumn,
which is the time for decreeing punishments; these are carried out
in winter, when death steals over nature. A generous table
accompanies the dispensing of rewards, a frugal table and no music
accompanies the allotment of punishments; hence the imperial
feasts and fasts. Thus punishment rather than command is what was
first understood by Law, and it is interesting to observe that
"making war" and "putting to death" head the list of imperial
chastisements, war being thus regarded as the Emperor's rod in the
shape of a posse of punitory police, rather than as an expression
of statecraft, ambitious greed, or vainglorious self-assertion.
Then followed, in order of severity, castration, cutting off the
feet or the knee-cap, branding, and flogging. The Emperor, or his
vassals, or the executive officers of each in the ruler's name,
declared the law, _i.e._ they declared the punishment in each
case of breach as it occurred. Thus from the very beginning the
legislative, judicial, and executive functions have never been
clearly separated in the Chinese system of thought; new words have
had to be coined within the last two years in order to express
this distinction for purposes of law reform. Mercantile Law,
Family Law, Fishery Laws--in a word, all the mass of what we call
Commercial and Civil Jurisprudence,--no more concerned the
Government, so far as individual rights were concerned, than
Agricultural Custom, Bankers' Custom, Butchers' Weights, and such
like petty matters; whenever these, or analogous matters, were
touched by the State, it was for commonwealth purposes, and not
for the maintenance of private rights. Each paterfamilias was
absolutely master of his own family; merchants managed their own
business freely; and so on with the rest. It was only when public
safety, Government interests, or the general weal was involved
that punishment-law stepped in and said,--always with _tao_,
"propriety," or nature's law in ultimate view: "you merchants may
not wear silk clothes"; "you usurers must not ruin the agriculturalists";
"you butchers must not irritate the gods of grain by killing cattle":--
these are mere examples taken at random from much later times.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account