Before the overthrow of the Qing Dynasty in 1911, China’s legal system differed from that of liberal Western states in three major aspects: First, the apex of the entire legal system was the absolute monarch; it was the emperor who issued and abolished laws, and the most serious crimes of the legal code were those which endangered imperial dynastic rule and desecrated the emperor and his property. Second, Chinese law incorporated major principles of Confucian ideology, most notably its emphasis on the family, on filial piety and on strict social roles and hierarchies. Third, the imperial legal system was designed to impose social norms – mostly of Confucian origin – with the aim of creating a self-regulating society. These three aspects of imperial China’s legal system are reflected in what imperial legal codes called “the ten abominations” or “the ten evils” (十惡), which were classified as the most heinous of all crimes. Even the emperor himself could not pardon subjects who had been found guilty of committing them.
The term “ten abominations” was invented by the Legalist school in order to identify those crimes which the state considered most threatening to political and social order (see: Charles Benn: Daily Life in Traditional China: The Tang Dynasty, 2002, p. 197). The first nucleus of the “ten abominations” can be found in the law codes of the Northern Qi kingdom (550-577 AD), which divided crimes into ten categories (see Xin Ren: Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China, 1997, p. 37). Confucian scholars initially rejected written laws as a means of governance. However, the idealism of early Confucian thought did not suit the emperors’ need for a stable and strong state. Beginning with the Han Dynasty, Confucian scholars incorporated Legalist doctrines into their philosophy of state-building. Confucians thus compiled law codes, but they infused them with their own moral and social philosophy. The first comprehensive legal code that has survived to this day is the Great Tang Code issued in 653 AD (see Patricia Buckley Ebrey: Chinese Civilization: A Sourcebook, 2009, p. 116). The following dynasties up until the Qing Dynasty built their legal system upon Tang law. In particular, the “ten abominations” remained almost unchanged throughout the centuries. We shall now examine the “ten abominations” as they were formulated in the last legal code of imperial China, i.e. that of the Qing Dynasty.
The Great Qing Legal Code was issued by emperor Shunzhi in 1647, shortly after the Qing had overthrown the Ming Dynasty. Upon conquering China, the Manchus took over the administrative and legal structure of the previous rulers, including the Ming legal code, and adapted them to their own needs. As emperor Shunzhi explained in the preface of the first edition of the Qing legal code, traditional Manchu laws were not suitable for governing the multitude of the Chinese people who were, in his words, “full of guile” and needed a complex legal system. The Qing code, like its predecessor, was based on the idea that the emperor ruled his officials and not the people. This means that the emperor sought to control directly his scholar-officials, but he kept distance from the masses. The reason for this was that Chinese rulers were traditionally more concerned with state affairs and dynastic self-preservation than with their subjects’ individual rights. As a matter of fact, the harshest punishments were the ones reserved for those who threatened the dynasty and the state-sanctioned order (Richard J. Smith: The Qing Dynasty and Traditional Chinese Culture, 2015, p. 102). Let us now examine the “ten abominations” as they are formulated in Article 2 of the Qing legal code:
- Plotting a rebellion (謀反), i.e. endangering the state (which was tantamount to endangering the ruling dynasty, as no distinction existed between emperor and state).
- Planning “great betrayal” (謀大逆), i.e. damaging or destroying imperial temples, tombs and palaces.
- Plotting treason (謀叛), i.e. “turning one’s back on one’s own country and conspiring with another country” (謀背本國潛從他國)]
- Evil disobedience (惡逆), i.e. beating or intentionally killing one’s grandparents or parents, one’s husband’s grandparents or parents, killing one’s father’s or husband’s brother, one’s parents, one’s father’s or husband’s aunts or sisters, elder brothers, elder sisters, one’s paternal grandparents or husband.
- Immoral behaviour (不道), i.e. killing three or more people of the same family who are not guilty of a capital crime, dismembering a body, killing a person with ‘gu’ poison or performing sorcery. Gu poison (蠱毒) “was made by placing venomous creatures such as snakes, toads, scorpions, spiders, and centipedes in a pot. According to tradition, the animal that survived combat with the others and devoured them was the most noxious, by virtue of having absorbed the others’ toxins. When the sorcerer or sorcerers decided to kill someone, he or she secretly injected the feces of the creature in the intended victim’s food or drink. The poison then destroyed the victim’s organs and caused him to vomit blood” (Benn 2002, p. 197).
- Great irreverence (大不敬), i.e.stealing sacrificial objects, stealing imperial property, forging imperial artifacts and seals, endangering the emperor’s life by administering him contaminated food or wrong medicine.
- Lack of filial piety (不孝), i.e. cursing one’s grandparents or parents or one’s husbands grandparents or parents, stealing from them, failing to support them, not mourning for them properly.
- Improper behaviour (不睦), i.e. killing or accusing of a crime one’s relatives within the five degrees of mourning.
- Unrighteous behaviour (不義), i.e. when the people killed their own prefectural magistrates, senior provincial government officials and county head magistrates; when soldiers killed their commanders; when officials killed their own department superiors of the fifth rank or above; when people killed their own teachers; if, upon hearing of their husband’s death, wives hid the news or failed to mourn properly, or if they played music, took off their mourning clothes or married another man during the mourning period.
- Incest (內亂, lit. ‘internal disorder’), i.e. fornicating with a relative of the 4th degree of mourning or above, fornicating with one’s grandfathers’ or father’s concubines.
As we can see from the list of the “ten abominations”, the Chinese imperial code combined the Legalist preoccupation with monarchical supremacy and the survival of the ruling dynasty with the Confucian concern for morality, social roles and filial piety.
Upon conquering the Ming empire, the Manchu rulers realised that the best way to govern China was to preserve the traditional social structure based on Confucian values. The Qing thus inherited a system which was skilfully crafted to make the common people supervise themselves.
One of the institutional instruments the Qing adopted from their predecessors was the baojia system (保甲制度). The baojia system of the Qing Dynasty was set up in 1644 and placed under the supervision of the Board of Revenues. The baojia comprised the pai (牌, 10 households), the jia (甲, 100 households) and the bao (保1,000 households) (Kung-Chuan Hsiao: Rural China: Imperial Control in the Nineteenth Century, 1960, p. 44). A document issued in 1708 explained:
Each household is given a placard on which the official seal is affixed. The names and number of adult males are written on it. In case any of them go away, their destination is recorded; in case any come into the households, the places from which they come are ascertained. It is forbidden to take in strangers and suspicious characters, unless a thorough questioning of them has been made. Every ten households set up a p’ai-t’ou [placard-head], every ten p’ai a chia-t’ou, and every ten chia a pao-chang…. Hostels keep registers for the purpose of checking [the guests] and paper placards are also given to temples and shrines. At the end of each month, the pao-chang submits a kan-chieh [willing bond], giving assurance that everything has been well in the neighborhoods, which [kan-chieh] is sent to the official concerned for inspection. Whoever fails to comply will be punished (ibid., pp. 44-45).
On the one hand, the baojia system functioned like a census system and therefore served to register the population living under Qing rule. On the other hand, however, it was also an institution which combined government control, dissemination of public Confucian morality, and the active participation of the population in maintaining order. As a matter of fact, the head of each baojia unit acted as a kind of constable or sheriff, and every member of a unit was required by law to report every criminal activity to the baojia head. If someone did not report a crime and the crime was later discovered, it would bring punishment not only upon the person who neglected his duty but upon the entire 10-household group to which he belonged. Consequently, imperial subjects were made to supervise each other, and the people lived in a climate of fear, suspicion and social pressure. In this system, the subjects of the emperors became vigilantes and potential informers (ibid., pp. 45-46). One must not forget that the Qing state did not possess the personnel to actively control all of its subjects. For instance, due to lack of financial resources the late Qing state had only one district magistrate for 200,000 inhabitants (Tahirih V. Lee: Foreigners in Chinese Law, 1997, p. 433). As a result, the imperial state needed some form of self-regulation of local communities as a cost-effective solution for maintaining law and order. This does not mean, however, that family ideology was considered oppressive by the population. The resilience of traditional family values throughout the centuries suggests that they were widely accepted by the common people and that the Confucian social order was willingly embraced by the imperial subjects.
The Chinese legal system incorporated the Confucian idea that people had to be reformed through persuasion and the propagation of the “proper” moral values and social ranks. As a result, the “ten abominations” that refer to family ideology do not punish people according to the nature of the crimes, but according to the rank of the offender. A crime committed by an inferior (a son, a wife, a soldier etc.) against a superior (a father, a husband, a commander etc.) deserved a punishment which was far more severe than if the superior wronged an inferior. For instance, if a son killed his father he would be punished with the death penalty, but if a father killed his son or ordered him to commit suicide, he would not be punished (Ren 1997, p. 25). Furthermore, China’s imperial legal system enforced collective punishment. A person who was found guilty of a serious crime would be punished together with his family members.
Although it is not possible to prove that the legal system of the People’s Republic of China (PRC) draws directly on its imperial predecessors, it can be demonstrated that the Chinese Communist state prioritizes the regulation and punishment of crimes belonging to exactly the same two categories as those found in the Qing legal code: subversion of state authority and family ideology. However, the evolution of the post-imperial legal system in different Chinese societies has created diverging results. In the PRC, the state places more emphasis on what we may call a “neo-Legalist” concern with the maintenance of state authority, of law and order, and of the wealth and strength of the state. On the contrary, Taiwan and Singapore accentuate the importance of “neo-Confucian” values, especially of filial piety. In the next post we shall examine the relationship between Neo-Legalism, Neo-Confucianism and Chinese Law in the PRC, Taiwan and Singapore.