Page 1 of 3 SINOGRAPH China no longer a law unto itself
By Francesco Sisci
BEIJING - The legal traditions of China and those of ancient Rome and Greece
have very different origins. They grew out of different social needs and
political requirements, reflecting the varied natures of the civilizations that
created the laws.
In ancient China, three words covered the modern meaning of the Latin word lex
(law): xing (punishment), fa (norm, standard), and li (ritualistic
behavior). As the Lun Yu (the ancient collections of the sayings
attributed to Confucius) told us, the aristocracy, the junzi, was to be
managed through li, whereas for common people, xing was more
appropriate.
The word xing, punishment, indicated corporal punishment, as suggested
by the radical "knife" in the character. This could be
cutting off the nose or the ears, or the fingers - or a branding on the
forehead. Such marks showed clearly to everybody the criminal record of the
individual. In this sense, xing, by cutting, gave a new shape to the
culprit, it adapted the object, the person. A thief, thus, would be punished by
having to take on the shape of a thief - that is, for example, without a hand.
In a sense, the punishment of xing was to correct a person by changing
his name from the one given to the one that was appropriate for him. This was a
practical and concrete application of the Confucian principle, "The father must
be a father; the son, son; the king, king; the minister, minister."
The ritualistic li, was a complex system of education and etiquette for
people with access to higher social positions, covering how to behave in
different circumstances and with different people. A lack of etiquette, as it
is today, is not punished by torture or corporal punishment, but simply by
subjecting the guilty to a humiliating lack of etiquette in response. The
"impolite" person loses face, is demeaned, and thus is already punished enough.
This system assumes a society split in two, between the educated and the
uneducated or the underprivileged. They are different, behave differently, and
should be treated differently.
The word fa gave its name to a whole philosophical school in the 3rd
century BC, called in English "legalism". Because of this, the word today
usually translates into the English word "law", or the Latin "lex". But
actually it indicates a very different thing.
In the Tianzhi of philosopher Mozi (470 BCE - ca 391 BCE), we can see
it:
Therefore the will of Heaven is like the compasses to the
wheelwright and the square to the carpenter. The wheelwright tests the
circularity of every object in the world with his compasses, saying: "That
which satisfies my compasses is circular. That which does not is not circular."
Therefore whether an object is circular or not is all known because the
standard (fa) of circularity is all established. The carpenter also
tests the squareness of every object in the world with his square, saying:
"That which satisfies my square is square; that which does not is not square."
Therefore whether any object is square or not is all known. Why so? Because the
standard of squareness is established. Similarly, with the will of Heaven, Mozi
will measure the jurisdiction and government of the lords in the empire on the
one hand, and the doctrines and teachings of the multitudes in the empire on
the other. If some conduct is observed to be in accordance with the will of
Heaven, it is called good conduct; if it is in opposition to the will of Heaven
it is called bad conduct. If a teaching is observed to be in accordance with
the will of Heaven it is called good teaching; if it is in opposition to the
will of Heaven it is called bad teaching. And if a government is observed to be
in accordance with the will of Heaven it is called good government; if it is in
opposition to the will of Heaven it is called bad government. With this as the
model and with this as the standard, whether the lords and the ministers are
magnanimous or not can be measured as (easily as) to distinguish black and
white. Therefore Mozi said: If the rulers and the gentlemen of the world really
desire to follow the way and benefit the people they have only to obey the will
of Heaven, the origin of magnanimity and righteousness. Obedience to the will
of Heaven is the standard of righteousness.[1]
In this
passage, fa is a standard, a model of behavior that men should take from
the sky. Here Mozi marks a profound innovation: he breaks the social difference
marked by the two sets of "laws" - those for the inferiors, xing, and
the superiors, li - and says that all men are equal, and there is no li
or xing but fa, taken from the will (zhi) and intention (yi)
of Heaven. That is, there must be a standard for social behavior, like that of
a carpenter's. In this sense, Mozi introduces a concept that is actually
similar to that of a neutral aspect of law of the first century BC - Chinese
"Legalism" - and the concept of law in the West.
But it is also clear that Chinese law at this point is already very different
from Western legal tradition.
Furthermore, using fa, Mozi is also very careful to think in strategic
military terms. A crucial part of his thinking focuses on fei gong, a
theory commonly translated as against "offensive war". This is no trivial
pacifism, but claims that small states must oppose aggressive wars of larger
states.
In fact, as Lu Xiang has shown in a forthcoming essay on Sunzi, gong in
pre-Qin China meant war of a strong state and army against a minor state and
army. Incidentally, zhan (the word now commonly translated as "war")
meant war between states with armies of similar sizes, usually large states. We
also know, through fragments of chapters on military techniques of defense,
that the Mohists (followers of a philosophical and religious movement during
the Warring States era - 479–221 BCE) were warriors with a clear ideology - the
protection and defense of smaller states against larger ones. The fa was
not a law applied and used in each state individually; it was a general
principle that came from the "will of Heaven" and had to be used identically in
each state. This idea contrasted with a trend of the time, when larger states
were conquering and annihilating (mie) smaller ones.
In short, we see that the fate of the theories of law and war were linked and
mutually reinforced each other in pre-Qin times. We find the same ideas in the
text Guanjun, attributed to Shang Guan, prime minister of the state of
Qin in the 3rd century BC. In the text, the application of new laws, fa,
aims to strengthen the state to deal with wars - this time clearly offensive,
against smaller states (gong) or with states of equal size (zhan)
that are thus more threatening for one's survival.
Law, fa, was an important element in strengthening the structure of the
state in order to win the warring competition in the central plain. From
Guanjun to Hanfei (about 280 to 233 BCE), zi legalist
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