Editing Chinese law (section)

=== Confucianism and Legalism ===
[[Confucianism]] and [[Legalism (Chinese philosophy)|Legalism]] are two major Classical legal theories or philosophies developed during the Spring and Autumn period and the Warring States period, a time that saw the most impressive proliferation of new ideas and philosophies in Chinese history. While both theories call for governmental hierarchy, they differ drastically in their views of human potential and the preferred means to achieve political order. Nevertheless, both theories have influenced and continue to influence the development of cultural, social, and legal norms in China.<ref>{{cite journal|last1=Farah|first1=Paolo Davide|title=The Influence of Confucianism on the Construction of the Chinese Political and Juridical System|date=2008|ssrn=1288392}}</ref>

==== Confucianism ====
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The basic premise of Confucianism is the idea that human beings are fundamentally good. With this optimistic view on human potential, Confucius advocates for ruling through ''li'' – traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character, rather than through government regulations and penal law. The idea is that people will internalize the acceptable norms and only take proper actions. This will not only lead to a harmonious social order, but it will also provide the additional benefit of improving an individual's inner character and the overall quality of the society. In contrast, codified laws require external compliance, and people may abide by the laws without fully understanding the reason for compliance. As such, a social order achieved through formal laws does not come with the additional benefit of better citizenry. However, even Confucius did not advocate for the elimination of formal laws. Rather, according to Confucianism, law should be viewed as a subsidiary tool primarily to be used against determined wrongdoers who cannot be affected by moral instruction.<ref name=":Laikwan">{{Cite book |last=Laikwan |first=Pang |title=One and All: The Logic of Chinese Sovereignty |date=2024 |publisher=[[Stanford University Press]] |isbn=9781503638815 |location=Stanford, CA}}</ref>{{Rp|page=39}}

As Confucius rejects the general use of formal laws to achieve social order, what lies vital to Confucius' theory is the willing participation by citizens of the society to search for commonly accepted, cooperative solutions. In addition to willing participation of citizens, there must also be grounds or bases upon which commonly acceptable solutions can be arrived at – the concept known as ''li''. ''Li'' is commonly understood as a set of culturally and socially valued norms that provide guidance to proper behaviors that will ultimately lead to a harmonious society. These norms are not fixed or unchangeable over time but rather a reflection of what is accepted at a particular time in a particular context. When conflicts arise, the ''li'' have to be applied and interpreted to produce a just result and restore the harmony of the society. However, in the absence of any procedural safeguard afforded by codified laws, interpretation of ''li'' is subject to abuse.

Recognizing that people in a society hold diverse interests, Confucius charges the ruler with the responsibility to unify these interests and maintain social order. This is not done by dictatorship but by setting an example. Therefore, a ruler needs not to force his people to behave properly. Instead, the ruler needs only to make himself respectful, and the people will be induced and enlightened by his superior virtues to follow his example – an ideal known as ''wúwéi''. Nevertheless, the ruler must know and understand the ''li'' to be able to create solutions to conflict and problems the society faces. As the people are to follow the moral standards and example set by the ruler, to a large extent, the quality of the ruler determines the quality of the political order.

Although discourse in Confucianism considered law as an inferior means of control when compared to morality and ritual, law in Confucian China was in practice overwhelmingly penal.<ref name=":Laikwan" />{{Rp|page=39}}

==== Legalism ====
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In contrast to Confucius' ''li''-based theory, the Legalism advocates the utilization of codified laws and harsh punishment to achieve social order. This is due to the legalists' belief that all human beings are born evil and self-interested. Therefore, if left unrestrained, people would engage in selfish behavior which will undoubtedly lead to social unrest. To cure this defect and force people to behave morally, the only way, believed the legalists, is to publicly promulgate clearly written laws and impose harsh punishments.

Realizing that the abilities of rulers are often limited and that reliance on the ruler's ability and judgment often leads to adverse results, the legalists designed a system in which the law is run by the state, not the ruler. This ensures that the laws will be applied impartially without the interference of personal bias of the ruler or ones who are responsible for applying the laws. It also makes it irrelevant whether the ruler has superior abilities. This non-action promoted by the legalists is their understanding of the concept of ''wuwei'', which is different from the Confucians' understanding of the same concept.

==== Comparison ====
Notwithstanding such an understanding, the ruler, like in Confucianism, has the ultimate authority to decide what the law should be. Therefore, like Confucianism, Legalism is subject to abuse as well. In fact, the Qin emperor implemented strict laws and extremely harsh punishments without taking into account mitigating circumstances even for insignificant crimes. For example, books were burned and people holding different ideals were buried alive. While the Qin emperor successfully instilled fear and respect for law into the minds of his people, the harshness of the law led to his quick demise after only 14 years of reigning over China.

In summary, although both Confucianism and Legalism were developed in a period of turmoil and both were aimed at the re-unification of the country, the two theories went opposite directions with one advocating for and one against the use of formal laws to achieve social order. What the two theories have in common is their concession of the ultimate authority to the ruler, who remained above and beyond the li or law. It is true that neither theory is ideal in achieving a social order. Nevertheless, both theories have had a significant impact on the cultural and legal development in China, and their influence remains visible today.

The significant influence of the Legalist tradition in Chinese law has historically been overlooked. Although the Confucian ideology provided the fundamentals for the substance of traditional law, the Legalist school constructed the important framework of the traditional legal system. The [[Han dynasty]] 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.

The Han dynasty formally recognized four sources of law: ''lü'' (律: "codified laws"), ''ling'' (令: "the emperor's order"), ''ke'' (科: "statutes inherited from previous dynasties") and ''bi'' (比: "precedents"), among which ''ling'' has the highest binding power over the other three. 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.

Eventually, the incorporation of the essentials of Confucianist ''li'' into legal codes occurred with this Confucian conception dominating ancient Chinese law. Ch'ü concludes that the gradual process of Confucianisation of law was the most significant development in the legal system of China prior to 20th century modernization.<ref>{{cite book|last=Ch'ü|first=T'ung-tsu|title=Law and Society in Traditional China|location=Paris|publisher=Mouton & Co.|date=1965}}</ref>{{rp|280}} The line between ruling by moral influence and ruling by punishment was not always clearly delineated. For example, ''li'' could be enforced by moral influence and legal means. The metamorphosis of ''li'' into law depended on its widespread and unvaried acceptance by society.

Although the [[Codification (law)|codification]] of law was largely completed by the ''[[Tang Code]]'' of CE 624, throughout the centuries the Confucian foundations of the Tang Code were retained, and indeed with some aspects of it strengthened by the later dynasties. ''The Great Ming Code'', which was a model for the Qing code, covered every part of social and political life, especially family and ritual, but also foreign relations and even relations of earthly life with the cosmos.{{sfnp|Jiang|2005|p=Introduction}}

The Confucian notion that morality and self-discipline was more important than legal codes caused many historians, such as [[Max Weber]], until the mid-20th century to conclude that law was not an important part of Imperial Chinese society. This notion, however, has come under extreme criticism and is no longer the conventional wisdom among Sinologists, who have concluded that Imperial China had an elaborate system of both criminal and civil law which was comparable to anything found in Europe.

During the Qing dynasty, criminal justice was based on extremely detailed ''[[Great Qing Legal Code]]''. One element of the traditional Chinese criminal justice system is the notion that criminal law has a moral purpose, one of which is to get the convicted to repent and see the error of his ways. In the traditional Chinese legal system, a person could not be convicted of a crime unless he has confessed. This often led to the use of [[torture]], in order to extract the necessary confession. These elements still influence modern Chinese views toward law. All [[capital punishment|capital offenses]] were reported to the capital and required the personal approval of the [[List of Emperors of the Qing Dynasty|emperor]].

There was no [[civil code]] separate from the [[criminal code]], which led to the now discredited belief that traditional Chinese law had no civil law. More recent studies have demonstrated that most of the magistrates' legal work was in civil disputes, and that there was an elaborate system of [[Private law|civil law]] which used the criminal code to establish [[torts]].