war, punishment, and the law of nature in early chinese concepts of the state

Harvard-Yenching Institute

War, Punishment, and The Law of Nature in Early Chinese Concepts of The StateAuthor(s): Karen TurnerSource: Harvard Journal of Asiatic Studies, Vol. 53, No. 2 (Dec., 1993), pp. 285-324Published by: Harvard-Yenching InstituteStable URL: http://www.jstor.org/stable/2719452 .

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War, Punishment, and the Law of Nature in Early Chinese Concepts of the State

KAREN TURNER Holy Cross College

There are basically two forms of conflict resolution: administered rules and fighting. Law and war. Too much of one destroys what it is meant to protect or aggrandize.

-Paul Bohanan, Law and Warfare

L ATE classical Chinese writers who addressed problems of statecraft generated by the construction of centralized, bureaucratic

states in the third and second centuries B.C. grappled with questions that have troubled Western political theorists since classical times: What rules should govern the state's use of violence against its own people and the people of its enemies? What role should official law play in guiding decisions about using coercion? And what relation should exist between positive, human laws and more universal standards for adjudication? In this article I have chosen to focus on how, during the Warring States (403-221 B.C.) and early Han (202 B.C.-

A.D. 25) periods, the authors of philosophical treatises, historical accounts, and legal documents defined workable boundaries between positive law,- normative standards, and institutionalized violence.

This paper has taken shape over a period of several years, and I cannot possibly thank everyone who has helped me think through the issues I raise in it. I owe recent debts to Profes- sor William Alford, Director of East Asian Legal Studies at Harvard University, for arrang- ing a workshop to discuss the essay there in October, 1990, with comments from Professors Benjamin Schwartz and Lloyd Weinreb of Harvard University. Dr. H. P. Lee has given me generous and learned help with the classical texts; and my Holy Cross colleagues, an- thropologists Susan Gottschang, Christine Greenway, and Susan Rodgers, encouraged me to communicate with scholars outside the sinological "tribe."

285



286 KAREN TURNER

As their recorded efforts to formulate rules for using coercion suggest, these writers accepted the premise that the state must monopolize force in order to maintain a stable political structure. But like late classical Western just war theorists,' the Chinese thinkers whose works I interpret here qualified their agreement that force could have a legitimate place in government, warning that rulers must never resort to violence for capricious cause or personal gain. More- over, some Chinese writers declared as eloquently as their West- ern counterparts that decisions about war and punishments must be based on laws derived from natural patterns.

By comparing classical Chinese political theory with Western concepts of natural law and the just war, this article adds a new perspective to current critiques of a certain conventional view of early Chinese legal culture. This standard view was recently stated in an extreme form by Liang Chih-p'ing, who contends that any conception of a government of law was alien to early China: "There were no rules of governing. . . . This fact was the source of what the ancient Chinese considered the rule of man. " 2He castigates the early Legalists for supporting a "fanatic absolute monarchy" based on a legal system that acted merely as a "tool of suppression." In line with other scholars who share a conviction that Chinese law always operated as an instrument to enforce coercion rather than to restrain violence, Liang points to flaws in classical Chinese legal theory to explain modern China's failure to create a democratic government based on the Rule of Law. Early China also serves as a negative example in Roberto Unger's analysis of the roots of modern Western Rule of Law systems. Comparing classical China with the Renaissance West, Unger concludes that the early Chinese failed to

1 I have used the term "late classical" to refer to the period from the mid-Warring States through the first century of Han rule. The creation of the Ch'in centralized empire in 221 B.C.

marked an important political break but did not put an end to competition between local and central forces. Moreover, the third and second centuries in China are characterized by the recovery, reinterpretation, and synthesis of earlier ideas to fit new political realities-conditions that apply to the late classical era in the West.

2 Liang Chih-p'ing, "Explicating 'Law': A Comparative Perspective of Chinese and Western Legal Culture," Journal of Chinese Law 3 (1989): 81. For another recent statement of this argument, see Leon Vandermeersch, "An Enquiry into the Chinese Conception of the Law," in The Scope of State Power, ed. Stuart Schram (Hong Kong: The Chinese University Press, 1985), pp. 3-25.



THE LAW OF NATURE IN EARLY CHINA 287

develop a Western-type legal order for two major reasons. First, Chinese rulers were never challenged by autonomous groups or institutions, such as a Western-style nobility or Church. Secondly, classical Chinese political theorists proved incapable of conceiving of a transcendent natural law that provided a "universalistic standard by which to evaluate state law and to restrict government."3 Joseph Needham has argued that this problem with envisioning a genuinely universal law as a basis for human laws was so significant that it not only blunted China's legal development, but its scientific progress as well.4 These modern criticisms of the character of early Chinese law echo traditional Confucian warnings that formal laws could never serve the common good as effectively as moral leadership and ritual, which prevented conflict from occurring in the first place. But I think that classical thinkers judged law less harshly than modern observers, whose work is inevitably tinged with disappoint- ment that Chinese law never matched an ideal derived from outside the Chinese experience. Even the strictest traditional Confucian critics of legal formalism valued order and stability and understood that formal laws were both inadequate and necessary for maintaining state control.5

During the past two decades, as lost legal materials from the third and second centuries B.C. have come to light, a more complex vision of the Chinese legal tradition has emerged-just when Chinese and

3 Roberto Mangabeira Unger, Law in Modern Society (New York: The Free Press, 1976), p. 76. William Alford carefully rebuts Unger's argument in "The Inscrutable Occidental? Im- plications of Roberto Unger's Uses and Abuses of the Past," Texas Law Review 64 (1986): 915-72.

4 Needham did allow that the Confucian conception of li shared some elements in common with Western natural law ideals; but because the li were based on "folkways," he believed that they did not express a truly universal standard of nature. Moreover, because juridical ideas were never linked with natural law, science and law in China did not follow a Western path. SeeJoseph Needham, History of Scientific Thought, vol. 2 of Science and Civilization in China (Cambridge: Cambridge University Press, 1956), pp. 518-83. Derk Bodde responded to Needham by pointing out that a minority viewpoint conducive to natural law thinking did exist in classical Chinese sources. See Bodde, "Chinese 'Laws of Nature': A Reconsideration," in Essays on Chinese Civilization, ed. Charles Le Blanc and Dorothy Borei (Princeton: Princeton University Press, 1981), pp. 299-315.

5 For a discussion of Confucian jurisprudence in light of the contemporary theories of justice of Ronald Dworkin and John Rawls, see R. P. Peerenboom, "Confucian Jurispru- dence: Beyond Natural Law," Asian Culture Quarterly 18 (1990): 12-38.



288 KAREN TURNER

Western scholars alike are searching the Chinese past for an ideolog- ical foundation to support the post-Maoist legal reforms.6 For example, the recent works of Benjamin Schwartz and Angus Graham describe the early Legalists not as servants of despotism, but as reformers who tried to institute public laws in order to prevent the ruler from placing his own interests above the welfare of the state.' New materials also provide evidence to question the charge that the Legalistic principles put forth by Shang Yang (d. 338 B.C.) and Han Fei (ca. 280-233 B.C.) propelled the Ch'in state toward a tyrannical system that ignored rules.8 The Ch'in procedural manual unearthed in 1975 at Shui-hu-ti 1dt* supplies concrete evidence that the first imperial state attempted to discourage local officials from indulging in personal, arbitrary decisions. Detailed, written guidelines aimed to keep Ch'in functionaries accountable, clear-sighted, and public- minded when they investigated crimes and decided punishments. What we know about the Han code found at Chiang-ling MR-I in 1984 suggests that the Han dynasty continued to rely upon a written legal code based on the Ch'in model.9 Furthermore, by Han times,

6 See, for example, discussions about the rule of law and the rule of man in Fa-hsiiehyen-chiu ' 3f ! 2 (1980): 40-52; 4 (1980): 61-54. The specific problem of finding methods to tem- per the personal manipulation of-law is taken up by Wang Li-ming IETLq in "Fa-chih yii jen-chih pu-neng fen-k'ai ma?" &Xr3 45, Fa-chih ji-pao &VJ H X (Sept. 14, 1988), p. 3. At an international conference in Beijing in October 1992 that explored how the rule of law could support current economic development in China, several papers argued that rule of law ideals did exist in some form in early China. For a report on the conference, see Kao Hung-chuin ift$J, Chia-ch'iang fa-chih: Tsu-chin she-hui ching-chi fa-chan" NI& iiag9R &, Fa-hsuiehyen-chiu 1 (1992): 85-89.

See Benjamin Schwartz, The World of Thought in Ancient China (Cambridge: Harvard Uni- versity Press, 1985), pp. 345-49 and Angus Graham, Disputers of the Tao (La Salle, Illinois: Open Court, 1989), pp. 290-92. For an earlier revisionist reading of Han Fei's political theory, see Leo Chang and Wang Hsiao-po, Philosophical Foundations of Han Fei's Political Theory (Honolulu: University of Hawaii Press, 1986).

8 Hsiao Kung-ch'uan's analysis of how the pre-Ch'in Legalists influenced the despotic character of the imperial state still stands as the most complete treatment of this topic. See his A History of Chinere Political Thought, trans. F. W. Mote (Princeton: Princeton University Press, 1979), pp. 440-45.

9 A vast secondary literature in Chinese and Japanese explores the Shui-hu-ti finds. For translations and interpretations of the texts, see Robin D. S. Yates and Katrina McLeod, "Forms of Ch'in Law," HJAS 41 (1981): 11-63. For an English translation of the documents, see A. F. P. Hulsewe, Remnants of Ch'in Law (Leiden: E. J. Brill, 1985). For an analysis of the conceptual and textual issues raised by recently discovered materials on Han law, see Chang T'ing-hao fK1t, "Kiangsu Lien-yuin-kang shih ch'u-t'u te Han-tai fa-li pan-tu k'ao-shu" L-N, Wen-po I1;X 3 (1984): 29-32. To my




contracts were more important than we have recognized, according to Hugh Scogin, who shows that the Han state "enforced private contracts on an apparently wide scale.""0

The treatises on government found in 1973 and 1974 at Ma- wang-tui TVEt in a Han tomb that was sealed in 165 B.C.'" add new information about how thought might have influenced politics. Scholars in China, eager to detect in the past an argument for allow- ing the economy to prosper without excessive government supervi- sion, have linked the Huang-Lao philosophy represented in the Ma- wang-tui silk texts with certain laissez-faire policies adopted in the early Han state. These studies attempt to demonstrate how the blend of Legalist and and Taoist models characteristic of Huang- Lao ideology mitigated autocratic rulership by proposing that a universally applicable law should apply to rulers, officials, and commoners 12 that superiors should act as responsible exemplars for lower-level functionaries,13 and that central government officials

knowledge one of the few published articles on the content of the Chiang-ling finds is by Lien Shao-ming , "Hsi-yii mu-chien-chung te Han-tai fa-lu wen-shu" A7*"iv(1ffitt W#Z-4L Kao-kuyu wen-wu t 4I;tJ 2 (1991): 82-96.

10 Hugh T. Scogin, Jr., "Between Heaven and Man: Contract and the State in Han Dynasty China," Southern California Law Review 63 (1990): 1325-1404.

" The four silk books have been titled, Ching-fa NM, Shih-liu-ching , Tao-yuan l, and Ch'eng f. The most useful survey in English of their importance and Chinese efforts to date and attribute the texts is Tu Wei-ming, "The 'Thought of Huang-Lao': A Reflection on the Lao Tzu and Huang Ti Texts in the Silk Manuscripts of Ma-Wang-Tui, "JAS 39 (1979): 95-110. Studies of textual issues and the intellectual context of the silk books can be found in W. Allyn Rickett, "Kuan-tzu and the Newly Discovered Texts on Bamboo and Silk," in Chinese Ideas About Nature and Society; Studies in Honor of Derk Bodde, ed. Charles Le Blanc and Susan Blader (Hong Kong: Hong Kong University Press, 1987), pp. 237-48; and Angus Graham, "A Neglected Pre-Han Philosophical Text: Ho-Kuan-Tzu," Bulletin of the School of African and Oriental Studies 52 (1989): 497-532.

12 The importance of Huang-Lao thought in the intellectual and political life of late classical China has been noted by several scholars. For a survey of debates on dating and attribu- tion in Chinese see Chang Wei-ming g and Ho Chieh-chun fJM1, Ma-wang-tui Han- mu XHAAA (Peking: Wen-wu chu-pan-she, 1982). A more recent commentary is in Li Tsung-t'ang c ed., Huang-ti-ching t'ung-shih k&A1 (Taipei: T'ien-kung shu-chui, 1984). One of the bestJapanese surveys of the strands of thought, and one of the few to recog- nize the importance of Confucian ideas, in the silk books, is that of Uchiyama Toshihiko P'l WII IRM "Ma6tai kinsho 'Keih6,' 'Jfidaikei,' 'Sh6,' 'D6gen' sh6k6" gEtgj+A;gg

jzJ'It, Tohogaku 56 (1978): 1-15. 13 Jao Hsin-hsien AA- outlines this argument in "Han ch'u Huang-Lao hsuieh-p'ai fa-

li ssu-hsiang luieh-shuo" j Fa-lu shih lun-ts'ung i 3 (1983): 326-38.



290 KAREN TURNER

should refrain from excessive intervention in local affairs.14 The Huang-Lao conception of law based on a natural standard, the tao, is so strikingly similar to Western notions of natural law that R. P. Peerenboom and I have concluded that classical Chinese thinkers did in fact understand the utility of grounding positive law in natural principles.15 Furthermore, as I have suggested in a recent article,16 Rule-of-Law ideals need not be seen as the exclusive outgrowth of the early modern liberal state in the West. A similar position is adopted by Chin Chun-feng, who states that the Warring States period saw the transformation from a patrimonial society based on the rule of rites to a bureaucratic state governed by a rule of law,17 and William Alford, who points out that classical Chinese thinkers displayed a commitment to public law as a means to restrict private abuses of power.18 New studies have also shown that although the Ma-wang-tui texts are new to the world of sinology, their philosophy does not represent an eccentric stance. Similar themes appear in more familiar texts, such as the Huai-nan-tzu, the Kuan-tzu, and the Hsin-shu.`9

From a variety of viewpoints and texts, these recent interpretations revise the belief that classical Chinese political theory rationalized a purely instrumental legal system. None, however, has ex-

14 Shimamori Tetsuo ,A- , "K6-R6 shis6 no k6z6 to ichi: Keiho nado shihen o yonde

kangaeru" t,5 1;126 AA L : A' C# 7t , Sh akan Tjyogaku *fUJ.i Y 45 (1981): 1-16.

15 A current and thorough study of the theory and problems of the authenticity of the silk

books can be found in R. P. Peerenboom, Law and Morality in Ancient China: The Silk

Manuscripts of Huang-Lao (Ph.D. diss., University of Hawaii, 1990). See also Karen Turner,

"The Theory of Law in the Ching-fa," Early China 14 (1989): 55-76. 16 Karen Turner, "Rule of Law Ideals in Early China?'" Journal of Chinese Law 6 (1993): 1-

44. 17 Chin Ch'un-feng !& #, "Lun Huang-Lao po-shu te chu-yao ssu-hsiang" <A%

>bA 1t,18,2 Ch'iu-so AZ* 2 (1986): 54-60. This author does not state that a true in-

stitutionalized Rule of Law existed, but that laws possessed higher authority in the ideal state

than human wisdom. 18 William Alford, "The Inscrutable Occidental." For a discussion of law in a compara-

tive light, see also Karen Turner, "Sage Kings and Laws in the Chinese and Greek Tradi-

tions," in The Heritage of China, ed. Paul Ropp (Berkeley and Los Angeles: University of

California Press, 1990), pp. 86-112. 19 For two informative studies of law in the transmitted texts, see Hua Yu-ken ?11,

"Huai-nan-tzu fa-Ii ssu-hsiang ch'u-i" < Hsiieh-shuyiieh-k'an 2 (1985):

49-52, and Yang Ho-kao ;% :, Chia I tefa-lii ssu-hsiang RJnt, M (Beijing: Ch'un-

chung ch'u-pan-she, 1985).




plored in depth how a comparative framework can be used to highlight late classical Chinese efforts to separate law from coercion and measure the legitimacy of laws and punishments in light of universal, normative standards.

FORCE AND THE STATE

From its very inception, Chinese political theory concerned itself with matters of law and coercion. After the sixth century B.C., as states began to assume the sole right to judge criminal behavior, adminis- ter punishments, and enlist commoners to fight their battles,20 decisions once private became a matter of public concern. Recognizing that those who suffered the state's punishments and risked their lives in its wars could not speak for themselves, Chinese thinkers shoul- dered the task of defining legitimate violence. The early Mohists denounced war on the grounds that it disrupted local rulers' regular sacrifices to the spirits of their lands and therefore threatened cosmic -order.21 The Taoists objected on the premise that any intervention in the natural order was potentially harmful, and Mencius (b. 389 B.C.)

declared that violence only rarely offered a just or efficient means to resolve conflict. Even the strongest advocate for state control of war and punishments, Shang Yang, did not sanction arbitrary, ran- dom violence. He admonished rulers that "employing punishments so as to eliminate punishments will bring order, but employing punishments so as to provoke punishments will lead to anarchy."22

By the third century, political writers more clearly articulated an ethic for using force. Hsiin-tzu (fl. 238 B.C.), for example, realistical- ly assessed the state's oppressive demands and potential benefits:

20 Hsu Cho-yun's study of the Ch'un-ch'iu-Chan-kuo transition is still the definitive treaf- ment, and its major points need not be repeated here. See Ancient China in Transition (Stan- ford: Stanford University Press, 1965). For changes in warfare and technology, see Robin Yates, "Siege Engines and Late Zhou Military Technology," in Explorations in the History of Science and Technology in China, ed. Li Kuo-hao, Chang Meng-wen, and Ts'ao T'ien-ch'in (Shanghai: Chinese Classics, 1982), pp. 409-51. Mark Lewis documents the change from war as a noble privilege to a subject's duty in Sanctioned Violence in Early China (Albany: State University of New York Press, 1990).

21 On the Mohists and warfare, see Robin Yates, "The Mohists on Warfare: Technology, Technique, and Justification," Journal of the American Academy of Religion: Thematic Issue 42

(1979): 549-603. 22 Shang-chun-shu chieh-ku (Ch'eng-tu: n.p., 1935) 1.1 la.



292 KAREN TURNER

"The state is the most powerful instrument for benefit (chih-liyung MWIJ) in the world. "23 But, he admitted, it is the "heaviest burden (chung-jen AE) in the world."24 According to Hsuin-tzu, only if competent, responsible leaders administered laws and institutions, could the dangers posed by concentrated institutional power be mitigated. Other materials from the late Warring States and early Han period, such as the sections on law, warfare and punishment in the Kuan-tzu, the Han Fei-tzu the Lu-shih Ch 'un-ch 'iu, the Ching-fa, and the Ho-kuan-tzu,25 assumed that the state must use force according to rules.26 The Ching-fa, which assigned more weight to civil virtues (wen i:) than to institutionalized violence (wu At) presented a detailed blueprint for imposing laws, labor demands, and punish-

27 ments. Unlike Western texts on the just war, these Chinese writings generally discussed war and punishments in tandem, and by the Warring States period, the standards for war and punishment belonged to a single category. As Liang Ch'i-ch'ao (1873-1929) ob- served in an essay on the origins of law, "A military expedition was clearly a function of the judiciary. 28 1'The locus classicus he cited to

23 Hsun-tzu (SPPYedition) I1. la; I have followed John Knoblock's translation. See Xunzi: A Translation and Study of the Complete Works (Stanford: Stanford University Press, 1990), 2: 149.

24 Hsun-tzu 11.3b-4a; Knoblock, Xunxi, 2: 153. 25 For this study, I have selected writings that move beyond strategic discussions of warfare

to offer concrete advice about setting up laws and institutions. The Kuei-ku-tzu jk@=f, for example, devoted attention to the techniques of war, but not to consolidating gains. For want of a better term, I use the term "eclectic texts" to refer to writings from the third and second centuries B.C. that draw strands from different major traditions to discuss important problems of statecraft. Recent work demonstrates that we can reasonably assume that the texts I use here were produced during the half century preceding or following the founding of the first em-

pire. See Angus Graham, "A Neglected Pre-Han Philosophical Text: Ho-Kuan- Tzu. " The recent debates surrounding the dating of the Ching-fa center on whether it was pre-Han. For surveys of these arguments, see Karen Turner, "The Theory of Law in the Ching-fa," and R. P. Peerenboom, "Law and Morality in Ancient China. " For an analysis of the dating of the Kuan-tzu and the Ma-wang-tui silk books, see W. Allyn Rickett, "Kuan-tzu and the Newly Discovered Texts on Bamboo and Silk."

26 Christopher Rand's study of the philosophy of wen and wu in a wide range of Chan-kuo and Han texts demonstrates how deeply the problem of incorporating violence in a civil society preoccupied these thinkers. See Christopher Rand, "The Role of Military Thought in Early Chinese Intellectual History" (Ph.D. diss., Harvard University, 1977).

27 See especially "Ssu-tu." 28 Liang Ch'i-ch'ao, History of Chinese Political Thought (London: Kegan Paul, Trench,

Trubner & Co., 1930), p. 163.




support this argument was a passage from the Kuo-yii: "The first grade punishment is warfare, the second grade is sword and saw, the third grade is whip and bamboo.""

The establishment of the Han empire finally ended the system of competing states that had divided China for over two centuries. But Han philosophers and officials continued to confront the problem of deciding when to resort to force. According to Han historical accounts, Han rulers and officials debated the wisdom of continuing to apply harsh punishments, the appropriate limits of legal reform, and the necessity of using force to control the barbarian tribes and local kings who threatened the Han peace. Early Han writers had an advantage over their Warring States counterparts, because they could indirectly threaten Han rulers with lessons drawn from the Ch'in dynasty's failure to maintain long-term order or gain legitimate authority to use violence against its own people. Important Han writers, like Chia I (201-169 B.C.), the putative author of the Hsin-shu, and, to a lesser extent, Tung Chung-shu (179-104 B.C.),

personally involved themselves in the affairs of the Han central government and examined how the Han dynasty could avoid Ch'in's mistakes. More particularistic, local attitudes are represented in the Huai-nan-tzu, a collective work that was produced around 140 B.C.

under the patronage of Liu An (d. 122 B.C.), whose state was in constant danger of being eliminated by the center. For Liu An, a local ruler and imperial kinsman who aspired to the imperial throne himself, when and how force might be used legitimately was a most pressing concern.30

Common assumptions emerge from these texts. By Han times, most thinkers implicitly agreed that the state must balance benign, personal leadership with institutionalized violence. The Huai-nan- tzu declared: "Order in the world cannot be maintained by force (li )i) alone; but neither is wisdom a sufficient base for governing. '31 A

29 Kuo-yu (SPPYedition) 4.6a; See the discussion of this passage in A. F. P. Hulsewe, Rem- nants of Han Law (Leiden: E. J. Brill, 1955), pp. 322, 353.

30 For an analysis of the text's philosophy of rulership, see Roger Ames, The Art of Rulership (Honolulu: University of Hawaii Press, 1983). For a history of the text, see Harold D. Roth, The Textual History of the Huai-nan-tzu (Ann Arbor: Association for Asian Studies Monograph Series, 1992).

3' Huai-nan-tzu (SPPY edition) 9.5b; my translation differs slightly from that of Ames, The Art of Rulership, pp. 175-76.



294 KAREN TURNER

vignette in the Shih chi related how a venerable Shih ching scholar, Shen-kung, summoned to Ching-ti's (r. 157-141 B.C.) court, told the ruler: "The way to rule is not to rely on a great deal of talk, but rather on having the force to back your [decisions]. i '2 This pragmatic attitude toward pure might, li, also moved some Han writers to reverse Mencius's strong disapproval of the pa , the hegemon who ruled by dint of superior strength rather than personal virtue. In a memorial to Han Wen-ti, Ch'ao Ts'o (d. 154 B.C.) praised the pa for understanding when to punish his people so that vendettas against him never developed.33 The Han statesman, Lu Chia (fl. 202-ca. 150 B.C.), consistently advised against using force alone to consoli- date power, but at the same time openly admired the most famous of the ancient hegemons, Duke Huan of Ch'i (r. 684-642 B.C.), for having maintained his position so effectively.34 Even the historian Pan Ku (A.D. 32-92), who was more deeply committed to Confu- cian values than many earlier Han thinkers, stated outright that governing well rested on using punishments against deviant subjects and aggressive enemies.35 Thus, by Han times, the good ruler was defined in part as one who could control violence. This point is made in the Huai-nan-tzu, which focuses primarily on describing the personal qualities of good rulers but also declared, "Rulers are set up to restrain violence and to suppress disorder. ,36

These texts are, to be sure, as limited as they are informative. The histories and the law codes, for example, tell us more about how their authors believed the ruler should apply law and coercion than how their proposals actually influenced institutions and policies. The Shui-hu-ti materials reveal that the Ch'in state tried to curb arbitrary decisions at the local level, but they do not prove that officials were actually punished for ignoring the rules. The Han histories in many cases say as much about how the historians-who wanted to believe that the dynasty they served had attained its position legitimately-thought force should have been used as about how it was actually used. And the philosophical sources present

32 Shih chi (Peking: Chung-hua shu-chiu, 1959) 121.3121-22; a similar passage is in Shih chi 2:402.

33 Han-shu (Peking: Chung-hua shu-chii, 1962) 49.2294. 34 Hsin-yii (SPTK edition) 1.4b. 35 Han-shu 23.1091; see Hulsewe, Remnants of Han Law, p. 329. 36 Huai-nan-tzu (SPPY edition) 15.2a.




inconsistent political theories. Some thinkers declared most useful and moral the laws of the earlier kings, others argued in favor of more universal, abstract principles, and still others described more than one source of law. Finally, aware that rulers could all too easily manipulate concentrated power for selfish ends, many writers only indirectly endorsed the state's monopoly of violence.

Thus the same materials can yield different conceptions of the nature of law and coercion in the early Chinese state-not only because the original texts contain ambiguous statements, but because they can be interpreted according to opposing contemporary theories of the state. A study of political culture that defines the state primarily in terms of its ability to control violence and maintain its stratification system can find ample evidence to document the process by which the early Chinese state rationalized its recourse to violence. Mark Lewis, whose recent study of sanctioned violence in Warring States China adopts this conception of the state, places far more emphasis on the state's power to coerce its subjects than on popular and intellectual resistance to its demands. According to Lewis, the "cosmically potent autocrat" gained total control of violence in order both to subdue and mobilize a passive peasant population.37 In contrast, a model of the state that emphasizes a more reciprocal relationship between the rulers and the ruled must account for issues of legitimacy, since, according to this model, any state gains lasting support only if its subjects perceive that their sub- mission to its demands will be repaid with basic benefits-such as protection from arbitrary violence, access to basic resources, and reliable mechanisms for adjudicating disputes.38 As E. A. Hoebel ob- served in his anthropological analysis of law, coercion, and legitimacy in traditional societies: "The essentials of legal coercion are geneial social acceptance of the application of physical power, in threat or in fact, by a privileged party, for a legitimate cause, in a legitimate way and at a legitimate time."39 The Chinese materials,

37 Mark E. Lewis, Sanctioned Violence, p. 246. 38 For a straightforward analysis of the two major contemporary theories of the state see

Elman R. Service, "Classical and Modern Theories of the Origins of Government," in Origins of the State: The Anthropology of Political Evolution, ed. Ronald Coleman and Elman R. Service (Philadelphia: Institute for the Study of Human Issues, 1978), pp. 21-34.

39 E. Adamson Hoebel, The Law of Primitive Man (Cambridge: Harvard University Press, 1967), p. 27.



296 KAREN TURNER

read in such a light, reveal that late classical Chinese writers mus- tered a range of intellectual ammunition to persuade the monarch to follow rules when deciding when, how, and for what reasons to resort to war and punishment. They gave teeth to their theories by warning the ruler who used force out of anger, for unclear reasons, or with excessive violence that he would be ruined in time, either by divine retribution or popular rebellion.

THE RULES FOR A JUST WAR

According to contemporary just war theory in the West, war, all too often fought for selfish reasons, is usually rationalized in one of two ways: as the right of the sovereign state to pursue its interests- as long as these do not violate existing treaties-or as a moral duty to correct the specific illegal act of another state.'0 This second model comes close to the classical Chinese conception that war was in principle wrong, but could be justified if it punished tyrannical rulers for crimes against innocent people. The descriptions of the righteous war (i-ping A#) recorded in the Hsiin-tzu, the Huai-nan- tzu, and the Lu-shih Ch'un-ch'iu, are similar in some respects to the definition of a just war put forth by the most important premodern just war theorists in the West, Augustine (354-430) and Aquinus (ca. 1225-74). In a statement that Aquinus would later cite as authoritative, Augustine offered the following definition: "A just war is usually described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly."41

Augustine based his conception of the just war, justum bellum, on the assumption that wars were an inevitable product of the human condition but that the damages of war must be circumscribed. Rather than defining the rules for violence in legalistic language, he emphasized the shared moral assumptions that must be applied to warfare.42 Late classical Chinese thinkers were similarly attentive to the

40 See Hans Kelson's discussion of international law and warfare in A General Theory of Law and the State (New York: Russell and Russell, 1961), pp. 331-32.

41 Summa Theologica 2.2.40. 1. 42 See Paul Ramsey, "The Just War According to St. Augustine," inJust War Theory, ed.

Jean Eshthain (New York: New York University Press, 1992), pp. 8-22.




ethical principles behind the rules for war, but they were far more concerned with presenting specific rules to protect the innocent victims of war.

Deciding when to initiate war remains a difficult moral and practical problem for any government. Aquinus defined three conditions that render war lawful: when it is carried out by a legitimate authority, for a just cause, and with good intentions.43 A different emphasis characterizes contemporary theories of the just war. Michael Walzer, for example, assigns great weight to the repercussions of war: "The aggressor is responsible for all the consequences of the fighting he begins. In particular cases, it may not be possible to know these consequences in advance, but they are always potentially terrible. "44 Chinese thinkers would have agreed with Aquinus that a just cause and proper intentions mattered and that the legitimate ruler alone had the right to decide when to wage war. But, like Waltzer, they also worried about the unforeseen consequences of using force aggressively. They charged the ruler with the responsibility to maintain order in the universe, but warned that he must do so in a passive, non-interventionist fashion. The Ching-fa, for example, repeated the Taoist admonition that initiating any activity could create the conditions for harm, and the Kuan-tzu stated that "trans- gressions are inherent in engaging oneself [in affairs]. "" In this Chinese scheme, war naturally threatened the most terrible of dangers, for as the Kuo-yu warned, armies acted as the tools of destruction, not only for innocent bystanders, but for those who initiated war.46 In light of such strong sentiments against aggression, it is not surprising that the Chinese texts argued that war should be

4 Summa Theologica 2.2.40. 1. 44 Michael Waltzer, Just and Unjust Wars (New York: Basic Books, 1977), p. 23. 45 See W. Allyn Rickett's translation in Kuan-tzu: A Repository of Early Chinese Thought

(Hong Kong: Hong Kong University Press, 1965), p. 178. The Ching-fa in "Tao-fa" states: "All living things move, but there is potential for harm in their movements. " I have used the following edition of the Ching-fa: Ching-fa: Ma-wang-tui Han-mu po-shu W&,

(Peking: Chung-hua shu-chui, 1980), and identify passages from test according to the titles of its nine short treatises: "Tao-fa" ;&, "Ming-li" t;3, "Liu-fen" A$3, "Lun" V,, "Lun- yiieh" &149, "Kuo-tz'u" f3lk, "Chiin-cheng" RiL, "Wang-lun" tC, "Ssu-tu" VEl,. I owe a debt to Professor T'ien Yu-ch'ing, Department of History, Beijing University, for help- ing me decipher this text in 1979. All translations are my own.

46 Kuo-yu 21.2a. See Lui-shih Ch'un-ch'iu (SPPY edition) 8.3b for a similar statement that weapons are inauspicious tools.



298 KAREN TURNER

initiated only if the decision to fight was made dispassionately, without selfish or vindictive motives. The Ching-fa set forth the fundamental principle for employing the people in any enterprise: "Eliminate selfish interests and act according to public concerns. "47 This kind of argument was amplified in a Huai-nan-tzu passage stating that rulers who disturb the world and harm the people for personal gain will never be tolerated, but those rulers who identify with the interests of their subjects will win support for their campaigns.' These texts expressed a vague conception of a public welfare when they contrasted a public-spirited ruler who always maintained a nonpartisan stance with the selfish tyrant who lusted after wealth and lands. The ruler's decisions could not be considered his business alone, for they affected a universal community of humankind. As the Lii-shih Ch'un-ch'iu declared: "The world is not the world of any one man."49

The argument that the ruler could not simply presume that his subjects would obey his orders to follow him to battle was not limited to the purely speculative texts. An anecdote from the Tso- chuan, one of the best sources for early military practices, illustrates this point. The episode concerns the Marquis of Wei, who suffered defeat from the barbarian Ti because he treated his pet storks, which rode around in his' officers' carriages, more affectionately than his people. When the time came to distribute arms, his people refused, according to the text: "Use the storks, for they have been given salaries and positions. How can we fight?"50 The philosophers reiterated the warning that ignoring the people's perceptions of good kingship could be morally wrong and politically disastrous. The Li-shih Ch'un-ch'iu declared, "When you initiate any affair, first investigate what is in the people's hearts and then you can go ahead with it, '5 and the Huai-nan-tzu maintained that the ruler must present war as an enterprise that would benefit the community

47 Ching-fa, "Tao-fa." 48 Huai-nan-tzu 15.2a.

49 Lu-shih Ch'un-ch'iu 1 .8b. 50 Tso-chuan (Ch'ang-sha: Yueh-lu shu-she, 1988), p. 46. This passage is in Duke Min, year

2. See James Legge, trans. The Chinese Classics, vol. 5 (1871; reprint, Hong Kong University Press, 1970), pp. 126-29.

51 Lu-shih Ch'un-ch'iu 9.5b; For a comprehensive analysis of righteous war passages in the Lu-shih Ch'un-ch'iu, see Liu Yuan-yen %J, "Lui-shih Ch'un-Ch'iu lun i-ping" Mlk* XR, Che-hsuieh ven-chiu J;f71t 3 (1963): 70-76.




if he wanted to use his subjects as naturally as fathers used their sons.52 That the tacit obligations binding kinsmen could extend beyond family networks only when leaders adhered to particular codes of behavior, is demonstrated in the Shih chi account of a defeated army's devotion to the Han official, Meng Shu: Meng Shu's armies fought to the death for him, as if for a kinsman, because his cause was just and his behavior unselfish.53

Not all thinkers shared this idealistic vision that ordinary people would voluntarily obey a righteous leader. Han Fei declared absurd the idea that subordinates would serve a superior in the same way a dutiful son would obey his father. In Han Fei's cynical opinion, only predictable rewards and definite punishments could induce the people to fight.54 Yet, Han Fei did tacitly allow that the people's will- ingness to go to war was linked with the ruler's ability to provide a stable institutional framework. He pointed out more than once that a badly governed state-specifically, one failing to implement clear laws and consistent punishments-would be weakened and therefore susceptible to invasion from outside.55 Thus, by late classical times, the early Confucian belief that a government must gain the support of its people before demanding their labor and lives had become a fundamental principle of statecraft.

In the West, classical just war theory concentrated on the problem of deciding when war could be initiated for a just cause.56 Simi- larly, the third and second century Chinese texts, expanding upon the Mohist idea that offensive war was wrong in principle but appropriate when Heaven itself demanded that evil be punished, emphasized the importance ofjustifying any aggressive action.57 The eclectic texts offer a more pragmatic vision about war. Arguing that a strong state was necessarily well-governed and a weak one obviously

52 Huai-nan-tzu 15.4a. 53 Shih chi 104.2777. See Burton Watson, trans, Records of the Grand Historian of China: Trans-

latedfrom the Shih chi of Ssu-ma Ch'ien, 2 vols. (New York: Columbia University Press, 1961) 1:558.

54 Han-fei-tzu chi-shih (Shanghai: Chung-hua shu-chus, 1958) 37.840. See W. K. Liao, The Complete Works of Han Fei Tzu, 2 vols. (London: Probsthain, 1959), 2:170.

55 Han-fei-tzu 19.309. 56 Waltzer, Just and Unjust Wars, p. 21. 57 The theme that Heaven judges and punishes the leader who wages war for the wrong mo-

tives is repeated in many other texts, most forcefully in the Ching-fa, "Chiin-cheng" section.



300 KAREN TURNER

ruined by evil or incompetent rulers, they declared that it was wrong to attack a strong state and legitimate to "rescue" the people of a weak one-thus providing a convenient justification for attack- ing a weakened enemy. In this model, war was righteous if it punished a state that had committed crimes against its own people or threatened to harm the innocent subjects of its enemies. Thus, the Huai-nan-tzu stated, "If the [ruler] hears that a ruler of another state abuses his own people, he must send troops there, castigate him for his lack of righteousness, and criticize him for his transgres- sions. "58 This text also instructed the invader to follow certain procedures that would notify the common people of his intentions.

The conception of jus in bello, the laws of war, is far more developed in the third- and second-century Chinese theories of the righteous war than in earlier texts-or for that matter than in classical Western writings. The manner in which war was carried out was weighed as carefully as the reasons for going to war in the first place. As the Li-shih Ch'un-ch'iu pointed out, it was how aggression was conducted that distinguished simple banditry from a righteous war.59 The Chinese texts emphasized that since war is the ultimate punishment, it must be carried out not only for the right reasons, but with appropriate timing and severity. The correlative thinking permeating the philosophy of the third and second centuries extended to the state's activities and most especially to warfare. The good ruler, according to correlative schemes, understood how to follow the lead of nature in making war and implementing punishments.60 Thus the activities of death could be carried out only in the dying seasons of the year, when the power of yin-the force of darkness, death, and decay-dominated the natural world. As the Ching-fa stated, "Just as Heaven has seasons for life and death, so too must the state have procedures for [granting] life and [taking] life. "' The authors of the Li-shih Ch'un-ch'iu mapped out a detailed calendar for state activities, a seasonal plan defining exactly when the armies

58 Huai-nan-tzu 15.2a.

5 Lu-shih Ch'un-ch'iu 7.7a; see Liu Yuan-yen, "Lu-shih Ch'un-ch'iu lun i-ping," pp. 70- 76.

60 See the discussion on correlative thinking in John Henderson, The Development and Decline of Chinese Cosmology (New York: Columbia University Press, 1984).

61 See "Chiun-cheng. " The editors suggest cheng SC for cheng liE. For a similar passage, see Kuan-tzu (SPPY edition) 1 .4b.




could legitimately be called up and when punishments should be meted out.62 Informing this "calendar of violence" were pragmatic interests, according to Mark Lewis: "Those who fought and killed were the same as those who sowed and cultivated." Therefore the state was obliged to calculate the costs of calling up the armies during the seasons for planting and harvesting. In Lewis's view the Warring States rulers' ability to regulate the labor of the peasant population bolstered their power as the "absolute masters" of states organized by and for warfare.63 But I would argue that the philosophers appealed to correlative ideas for another purpose, to subtly critique the power of the state. The " Lun-yiieh" section of the Ching-

fa makes the case that just as the growing seasons nourished life, so too the dormant season accommodated punishments and executions. If natural cycles were not followed, the ruler would accomplish little, no matter how active he might be. Thus correlative ideas could both justify techniques for regulating the population and re- mind the state that arbitrary-unseasonal-intervention in local activities would not pay off in the long term.

The concern that the third- and second-century Chinese authors express for limiting violence is coupled with a pragmatic disdain for inappropriate kindness, which could encourage evil just as unwar- ranted cruelty could precipitate rebellion. The Ching-fa pointed out that a leader must know when to seize the moment, and how to negoti- ate the delicate balance between passive delays that could ruin his reputation and aggressive actions that could harm himself and his people. Once he decided that punishment was warranted, however, the text advised him to act with measured severity. At the same time, several authors warn, the righteous invader should punish only the leaders responsible for wrongdoing and not the innocent people whom they had enlisted. The Ching-fa adopts a strong position on this issue, warning the aggressor that it was wrong to use coercion "when you allow your own followers to be killed, when you sacrifice prisoners, or when you punish another state that has not committed crimes. "64 Hsiin-tzu most specifically listed the rules

62 See John Louton, "The 'Lushi Chunqiu': An Ancient Chinese Political Cosmology" (Ph.D. diss., University of Washington, 1981).

63 Mark Lewis, Sanctioned Violence, p. 65. 64 Ching-fa, "Wang-lun. "



302 KAREN TURNER

that the leader of a righteous army must put into operation. He advised that generals must neither deceive the people about the motives for war nor lead them into hopeless battles; once in the field, leaders must not force the people to fight for more than one season. The people of the enemy also must be treated fairly. Armies must not kill the aged or the young, destroy the crops, take prisoners unjustly, or butcher the inhabitants of a city.65 Destruction awaited the ruler who violated these rules, in the opinion of many writers.66

In these texts, the ruler's intentions and behavior were not the sole concern; the perceptions of the people also counted. The Ching-

fa's concrete advice about how the conqueror should treat new subjects assumes that the people's consent to obey the laws of the state, accept punishments, and go to war was conditional:67

By going along with their customs in the first year you can understand the people's local standards and by making use of their virtuous [ones] in the second you can command their labor. If in the third year there are no taxes [collected] the people will have enough to live on. If you wait until the fourth year to issue orders, you will have the people's respect; and if you wait until the fifth year to correct them with punishments, they will not attempt to avoid [punishment]. In the seventh year you can send them out on punitive expeditions and overcome even a strong enemy.

The philosophy of government expressed in this passage follows Confucius's dictum that a good ruler teaches his people for seven years before he asks them to bear arms and Mencius's principle that a legitimate government always provides a sufficient livelihood for its people before demanding taxes and labor for its own purposes. The Ching-fa connected the state's duty to satisfy basic economic needs and establish a legitimate civil order, on the one hand, with the people's obligation to participate in its wars and submit to its punishments, on the other.

Some of the philosophers' notions of the righteous war are repeated in the historical narratives that portray the Han dynasty's rise to power. As is well known, Han writers tried to legitimate the Han founder's use of violence to destroy the Ch'in ruling house by

65 Hsun-tzu 15.8b; Knoblock, 2:227. 66 See Ching-fa, "Wang-lun." Similar passages can be found in Huai-nan-tzu 15.3a; Han-

fei-tzu 15.268; and Kuan-tzu 8.8b. 67 In "Chiin-cheng. " This section in particular contains important ideas associated with

Confucian thought.




presenting the civil war as a just campaign that allowed him to rescue the suffering people of Ch'in from an oppressive regime.68 Ssu- ma Ch'ien constructed his narrative to show that the rebellion against Ch'in was not initiated by Liu Pang, the future Han Kao- tsu, who was thus absolved of responsibility for the ensuing violence. The historian's ambivalence about the first Han Emperor sur- faces in accounts that reveal Liu Pang's ruthless side-such as when he enlisted women and children as foils to preserve his armies at Jung-yang and attempted to throw his father and children out of his carriage when pursued by his enemies. But the historian's "official transcript," preserved in the "Annals of Kao-tsu," show a much more careful leader, one who used human and material resources judiciously, consulted his advisors as he carefully planned his campaigns, rewarded his followers generously, and displayed a public- minded concern for the larger community.69 Most significantly, Ssu-ma Ch'ien described the future founder of the dynasty as one who preached a righteous war, who deliberately mined a storehouse of symbolic gestures to legitimate his use of force. The romantic loser, Hsiang Yii, on the other hand, wreaked havoc with his im- petuous decisions, killed the last Ch'in ruler, sacked the Ch'in capi- tal, stinted on rewards to his men, and placed the welfare of his rela- tives above the needs of the larger community. Hsiang Yii, the more heroic, colorful figure, is portrayed as a doomed aristocrat who could not be saved by his skill in battle and knowledge of the rites. Liu Pang, a crude commoner, is presented as the legitimate conqueror because he fought a righteous war, according to the rules.

The story of Liu Pang's victory over a strategically superior but morally inferior opponent mirrored the philosophers' warnings that the leader without virtue was doomed to fail. On this issue, the Ching-fa was clear: "If an army is raised on unprincipled grounds (shih-li *Jf) to carry out an unjust campaign (fa pu-tang NtS),

68 See Jack Dull, "Kao-tsu's Founding and Wang Mang's Failure: Studies in Han Time Legitimation" (Paper delivered to the Conference on Legitimation of the Chinese Imperial Regimes, Sponsored by the Committee on Studies of Chinese Civilization, American Coun- cil of Learned Societies. Asilomar, Monterey, California, July, 1975).

69 James Scott's analysis of how resistance to domination is expressed in "hidden transcripts," which often subvert the ideology portrayed in "public transcripts," has informed my reading of these passages. See James Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven: Yale University Press, 1990).



304 KAREN TURNER

disasters from Heaven will be doubled. And even if it is (initially) successful, Heaven will intensify its punishments and fail to grant its mandate. " The Kuan-tzu repeated the admonition that a strong army and strategic advantage were never sufficient for victory; in one passage, it discussed law and war together: "Bravery without righteousness harms a military campaign just as benevolence without lawfulness harms justice. Military defeat can spring from lack of righteousness just as transgression of the law can spring from a lack of justice.""

The argument that force must be limited by rules designed to protect the innocent victims of war differentiates the Chinese theory of righteous war from traditional Western just war theory. Certainly, Chinese political theory did not ignore pragmatic concerns. The philosophers, the historians, and the military strategists declared that the ruler of an orderly, prosperous state had a far better chance at victory in war than a leader who attempted to mobilize a disgrun- tled populace.72 They also assumed that a ruler who wasted human and material resources on a lost cause was almost as much at fault as one who decided to go to war for immoral reasons. But in the Chinese texts I have found no parallels with the Old Testament's justification for slaughtering wholesale the people of an enemy in a holy war.73 Nor are the Chinese texts as brutally pragmatic as Aqui- nus, who was willing to admit that women, children, and fruit trees should be spared in war, but that for crimes against God, an entire city or nation could be justly punished so as to deter other such crimes." The Chinese texts do not regard war as a remedy for the sins of ordinary people unlucky enough to serve an evil regime, but as a punishment for those particular leaders who lead their subjects astray with improper demands. Thus force should be directed only

70 Ching-fa, "Wang-lun. "

71 Kuan-tzu 16.7a; see W. Allyn Rickett, Guanzi: Political, Economic, and Philosophical Essays

from Early China (Princeton: Princeton University Press, 1985), p. 261. 72 Robin Yates argues that strategic manuals of war in early China often contain argu-

ments similar to those used in the more purely philosophical texts. See "New Light on An-

cient Chinese Military Texts: Notes on Their Nature and Evolution and the Development of

Military Specializations in Warring States China," TP 74 (1988): 211-48. 73 John Fairbank makes this observation, from a different set of data, in Chinese Ways in

Wa?fare, ed. Frank A. Kierman, Jr. and John K. Fairbank (Cambridge: Harvard University

Press, 1974), p. 7. In the Old Testament, see Deuteronomy 20. 74 Summa Theolopica 2.1.105.2.




toward the rulers who made the decisions and not toward their subjects.75 Furthermore, Chinese writings on righteous warfare differ from Western just war treatises by paying far more attention to the economic and social costs of war.

THE RULES FOR IMPLEMENTING PUNISHMENTS

In late classical Chinese writings, the rules for warfare applied to internal punishments. Therefore, just as the ruler's motives for war must be impartial, so must his punishments be applied without personal bias; just as war must be timely, so must executions occur according to proper natural cycles; and just as a punishment meted out to an enemy state must equal the gravity of the state's crimes against its people, so must punishments inflicted upon criminals within the state match the severity of their crimes. These authors recognized that appropriately severe punishments were important for maintaining order, but they also cautioned that harsh punishments prevented further violence only if the ruler refrained from using them out of anger or revenge. Han Fei argued that the restraint of personal agendas in government was essential for institutional stability: "The best way to govern a state is to reward and punish without joy or anger."76 He further pointed out that the sage kings of old used the most brutal punishments to keep order, but because they never used war and executions out of malice or cruelty, even evil people obeyed their commands. The Kuan-tzu declared that the ruler who responded to being pleased by issuing rewards and to being angered by ordering executions would never be able to implement his orders.77 Only by removing human partiality from public judgments could certainty and predictability be ensured-and the Ching-fa appealed to religious authority to highlight the importance of these values: "Certainty is the command of Heaven" ;g4WL-p -a 78

75 Huai-nan-tzu 15.2b. 76 Han-fei-tzu 27.500; Liao, 1:203. See also Han-fei-tzu 19.309. Other texts link the security

of the state with consistent punishments: Kuan-tzu 55.3a; Ching-fa, "Lun." 77 Kuan-tzu 7.7b; Rickett, Guanzi, p.139; See also Huai-nan-tzu 9.13b; Ames, The Art of

Rulership, pp. 190-91. 78 " Lun. '



306 KAREN TURNER

The care that certain thinkers took to describe how and when the state should apply the death penalty reveals their understandable reluctance to sanction the ultimate physical violence that individuals could suffer at the hands of the state. Some writers rationalized the death penalty as a deterrent: "When the people definitely believe (pi-hsin 9{R) in executions, they will fear them."79 Only if the death penalty was carried out consistently would the people accept the state's punishments without resistance, according to the "Chuin-cheng" section of the Ching-fa: "To use punishments correctly means that you must not remit crimes punishable by death. Then when you send [the people] out on your punitive expeditions they will be willing to die for you." This sentiment, that punishments within the state must be consistent before the people would obey the ruler's orders to risk their lives for him, is echoed by Han Fei.80

The Han materials express more serious doubts about the efficacy of harsh punishments in government. Some Han thinkers, like Tung Chung-shu and Chia I, followed the Confucian principle of advocating education and moral leadership over harsh punishments in government. Tung Chung-shu argued his case by usingyin-yang analogies to maintain that punishments, the yin force, should be subordinated to education and virtuous leadership, theyang force.8' But he also wrote that, for serious crimes, the state must impose the death penalty, because only if the state enforced its laws without ex- ception would its subjects obey orders.82 Chia I took a more benign stance, one that resembles the Western belief that the legal system should presume innocence before guilt. He declared: "Punishments and rewards must be carefully used. Rather than kill one who is not guilty it is better to release one who is a criminal. If the case of guilt is doubtful, let him go." Chia I implied that the death penalty should not be imposed hastily if guilt was doubtful, for even evil peo-

79 Kuan-tzu 7.8a; See Rickett, Guanzi, p. 142. I understand pi V1 to mean inevitable, in the causal sense: if one commits a crime, it will necessarily, or consistently, be punished appropriately. See Angus Graham's discussion in Later Mohist Logic, Ethics and Science (Hong Kong: The Chinese University Press, 1978), p. 301.

8 See Han-fei-tzu 18.310; Liao, 1:168. 81 Han-shu 56:2501-503. 82 Ibid.




ple should be allowed a chance to reform.83 The Shu ching may well have inspired Chia I's sentiments toward protecting the innocent. But the written tradition could be culled to justify severity as well as benevolence. Han Fei had portrayed the early kings as supporters of severe punishments,84 and Han officials appealed to traditional models to convince rulers of the dangers of eliminating the harshest punishments.85

In the ideal system, the ruler was duty-bound to oversee a legal order that would ensure that crimes received the correct punishment, because only by matching (tang ') punishments to specific crimes could the disruption caused by crime be erased and the ruler's position be safe.86 Some authors cautioned that the ruler who punished his people unjustly should fear the vengeance of Heaven as much as the anger of his people. Chia I, for example, warned the ruler to use punishments appropriately if he hoped to escape Heaven's vengeance for unjust killing: "If a punishment is not suit- able and you kill one person who does not deserve it (chu-sha bu tang- ku ORT71IN, your crime will be reported to highest Heaven. "87 In Chia I's view, the unjust ruler should dread Heaven's wrath just as the criminal should fear the anger of the state.88 According to Tung Chung-shu, who based his political thinking on the premise that disharmony between superiors and inferiors in the human realm would be reflected in natural disasters, untimely and inappropriate punishments generated particularly terrible happenings.89 The Huai- nan-tzu even more specifically described the consequences of an ill- advised employment of coercion: "Oppressive laws and orders give rise to plagues. If the innocent are put to death, the countryside will suffer drought. "90 These warnings that the ruler would be punished

83 Hsin-shu (SPPY edition) 9.2a; See also Yang Ho-kao, Chia I tefa-lu ssu-hsiang, p. 39. 84 Han-fei-tzu 18.310; Liao, 1:168. 85 This is in the account in Han-shu 23.1097-99 and is discussed by Hulsewe, Remnants of

Han Law, p. 335. 86 Yates and McLeod discuss the term in "Forms of Ch'in Law," pp. 125-26. 87 Hsin-shu 7.4b. 88 Ibid. 89 Han-shu 56.2510. 90 Huai-nan-tzu 3.2a-2b; I have followed the translation and interpretation ofJohn Hender-

son, The Development and Decline of Chinese Cosmology, p. 25.



308 KAREN TURNER

for breaking the rules demonstrate that his compliance was not a matter of discretion.

Although these thinkers constructed strong arguments for containing force, we cannot determine how directly philosophical treatises influenced practices relating to punishments. But the Shui-hu-ti materials on law demonstrate that the Ch'in state at least attempted to prevent officials from making capricious decisions. These documents provided a working local official with detailed guidelines for investigating cases and deciding punishments, examples of enacted laws with explanations, an essay that outlined a code for proper bureaucratic behavior, and sample cases and punishments serving as precedents. In analyzing these texts, Professor Hulsewe comments: "Starting with the judicial material, one is struck by the care be- stowed on the investigation of criminal suits. It started with detective work, on which detailed reports were required. . . . The investigating officials are urged, not to lose their patience when the subject continued to prevaricate and when it was evident that he was lying. ... A confession wrung from a suspect by means of torture was considered inferior. '"' In some cases, appeal to a higher authority was possible. But the system seemed designed to reduce the necessity of appeal by ensuring that decisions at the local level would be made according to rules. The system was by no means benign, however, since the texts show that guilt was presumed at the outset and torture condoned. Moreover, what most likely inspired the careful attention to official accountability were practical rather than ethical motives. The Ch'in legal manuals reveal that the Ch'in state viewed its power to decide matters of life and death in utilitarian terms,92 and regarded its subjects not as persons with inherent rights vis-'a- vis the state, but as resources that must be preserved to labor for the state. However, as the government's own guidelines indicate, power

9' Hulsewe, Remnants of Ch'in Law, pp. 6-7. 92 Michel Foucault's discussion of changing conceptions of punishment in Western society

provides an interesting framework in which to view early Chinese developments. Foucault shows hows the post-Renaissance state moved from defining its power not according to its right to kill its subjects but according to its power to engineer their minds and labor to conform to official needs. See "Right of Death and Power of Life," in Foucault Reader, ed. Paul Rabinow (New York: Pantheon Books, 1984), pp. 258-72. For a critique of the applicability of Foucault's theories to Chinese institutions, see Michael Dutton, Policing and Punishments in China: From Patriarchy to 'the People'" (Cambridge: Cambridge University Press, 1992).




over life and death must not be exercised lightly. The Ch'in official buried at Shui-hu-ti died armed with a manual outlining what the state expected of him: a clear knowledge of the laws, wide-ranging competence, honesty, and public-spiritedness. He enjoyed some discretionary power, but he was constrained by detailed instructions for reporting his decisions to his superiors. The first imperial state thus produced written rules to keep bureaucrats accountable for their actions and decisions.

But according to Han writers, who took good advantage of Ch'in's mistakes to bolster their own arguments for restraining the state's use of violence, the Ch'in legal system did not live up to its promises. According to Tung Chung-shu, the Ch'in state had failed to convince the innocent that they would be safe from violence and the evil that they would face certain punishment.93 The Han legal reformer, Ch'ao Ts'o (d. 154 B.C.), criticized the Ch'in central government above all for neglecting to clarify its laws and failing to control its magistrates, who "took advantage of the numerous and confusing laws to bolster their own authority . . . and to make life and death decisions according to their own passions. "' The historical example offered by the Ch'in empire's demise bolstered the late classical philosophers' contention that laws and punishments were not in themselves a negative force but had to be applied according to particular rules to operate effectively.

THE NATURE OF LAW

Clear laws (ming-fa Mi;) and consistent punishments (pi-hsing .2V MJ) are usually discussed in tandem in the third- and second-century Chinese texts, which seem to assume that a predictable use of force

depended on maintaining clarity in the law codes. Thusfa in these texts referred to the rules backed by the coercive power of the state as well as to the laws guiding the state's use of coercion. Unlike late classical Western texts, the Chinese writings do not conceptualize a clear hierarchy of laws extending from divine law, natural law, the law of nations, and the civil law. Instead they use a single term, fa,

93 Han-shu 56.2510. 94 Han-shu 49.2296.



310 KAREN TURNER

to cover a wide range of meanings for law, just as in English, the word "law" incorporates several levels of rules-the law of God, international law, the Rule of Law, the coercive laws of the state, and the particular laws applied to a variety of human activities. This multi-layered view of law in the West complicates scholarly discussions of law. Max Weber, for example, viewed law as both power and authority, as both coercion and the "structured source of guidelines for right conduct. " Even today, debates about the nature of law continue to focus on the question of whether law should be obeyed because it is created and backed by the state-the positiv- ist's view-or because it supports values that transcend conventional institutions-the natural lawyer's view.96 But despite these different ideas about the legitimating process behind law, Western thinkers generally agree that a healthy legal system, one true to the ideals of the "Rule of Law," should function according to certain principles: laws should be more general and universal than commands, pub- licly known, sufficiently clear to thwart human manipulation, altered only through legitimate procedures, and superior to the will of any single human authority.97

Although the Chinese texts do not espouse a Rule-of-Law system as it developed in the West, they do advocate certain Rule-of-Law ideals. The idea that law serves as a model for guiding a predictable application of coercion is expressed by Han Fei: "Law includes the regulations and ordinances that are publicized in the government offices, the punishments that are definitely expected by the people,

9 David Trubek, "Max Weber on Law and the Rise of Capitalism," Wisconsin Law Review 3 (1972): 720-53.

96 A clear survey of natural law thinking is in Lloyd Weinreb, Natural Law andJustice (Cam- bridge: Harvard University Press, 1987). Recent debates between the positivists and natural law theorists demonstrate that they more often agree than disagree on fundamental points. A good summary of these positions is in Tim Kaye, "Natural Law Theory and Legal Positiv- ism: Two Sides of the Same Practical Coin?" 14 Journal of Law and Society (1987): 303-20. Ambivalence about law is not limited to formal legal theory, however. Carol J. Greenhouse shows how contemporary Americans believe that law is essential because it supports a "natural" social order constructed of family units; but ordinary Americans also look down on litigious individuals who abuse the legal system. See Carol J. Greenhouse, "Interpreting American Litigiousness," in History and Power in the Study of Law, ed. June Starr and Jane Collier (Ithaca: Cornell University Press, 1989), pp. 252-73.

97 A survey of opinions about the Rule of Law can be found in Dean Spader, "Rule of Law v. Rule of Man: The Search for the Golden Zigzag between Conflicting Fundamental Values," Journal of CriminalJustice 12 (1984): 379-94.




the rewards due those who obey the laws, the punishments that await those who pervert the ordinances, and the models used by all subjects."98 For Han Fei, then, fa seems to have referred to the public legal system as a whole rather than to positive laws, coercion, or normative models alone. He agreed with Shang Yang that law could aid even the best of rulers: "The sage king Yao could not neglect the laws and techniques and manage the state."99 Thus, only through law could the self-interest that generates havoc in government be eliminated.'00 Therefore, law in Han Fei's view, served many purposes: it operated as a mechanism to restrain the ruler, control the magistrates, define bureaucratic responsibilities, and fix boundaries in the official hierarchy-measures that would strengthen the state. It also forced people to conform to standards of conduct that might well offend local habits and personal prefer- ences. The Kuan-tzu defines law as a force that "makes the people give up what they prefer and do what they -normally abhor. X101 The "Tao-fa" section of the Ching-fa contains a similar sentiment, defining law as that which teaches the people not to "trust to luck to escape crime." Law also compelled rulers to rise above personal interests. The Ching-fa based its argument for using law on the additional grounds that law could restrain arbitrary power and ensure that the state's exactions were made for public rather than private gain: "Laws and measures (tu gt) are of the utmost importance in governing. There is no confusion in the government of a [ruler] who relies on them and no disorder when laws and measures are produced. One who is at heart public-spirited (kung g2) and without private bias (wu-ssu ItJ) and whose rewards and punishments are trusted will achieve good government. ''102

The problem of defining the ruler's range of activities in the legal system is handled cautiously in the Chinese political theory and the historical sources. The strongest case for an active, personal legislator is found in the Ho-kuan-tzu: "I am the one who produces laws; it is others who implement them."''03 Other authors more indirectly

98 Han-fei-tzu 43.906; Liao, 2:212. 99 Shang-chun-shu chieh-ku 9.3b; see also Han-fei-tzu 27.498. 100 Han-fei-tzu 45.946; Liao, 2: 245. 101 Kuan-tzu 16.5a; Rickett, Guanzi, p. 257. 102 Ching-fa, "Chiin-cheng." 103 Ho-kuan-tzu 5.12a.



312 KAREN TURNER

described the ruler as the source of positive laws, but most were not so foolish as to legitimate his right to break established laws. Shang Yang has been criticized as the author of a despotic concept of law that placed the ruler at the pinnacle of the state. There is little doubt that Shang Yang constructed his political theory so as to preserve the strength and security of the state rather than to enhance the welfare of the community; but he disassociated the ruler's personal position from the institutional needs of the state and defined law as a guidepost for the ruler's public actions: "An enlightened ruler is cautious with regard to the laws and regulations. He does not heed speech that is not centered in the law, nor does he exalt actions or perform deeds that are not centered in the law.''04 This passage does not necessarily mean that the ruler must be law-abiding, but that the law offered him a reliable standard for making official judgments. Other texts portray the model ruler as a legislator, but even so, they imply that he must respect the established laws. The Kuan- tzu argued that the sage could produce law but should neither change nor abolish the existing laws, even out of affection for his people-' for the laws are more esteemed than the people. " "' A similar passage in the "Tao-fa" section of the Ching-fa, which links law with the tao, states, "One who holds fast to the tao can produce laws but dares not transgress them."

Han thinkers continued to emphasize the value of limiting the ruler's activities vis-a-vis law. Chia I wrote that the ruler must act according to humane principles, but he must follow the laws as well: "Laws that are set up should not be transgressed; commands that are implemented should not be contradicted."''06 Lu Chia argued that the ruler must follow the laws if he expected his people to obey them.107 The Huai-nan-tzu put forth an even more unequivocal argument for the utility of law, which represented the vague, collective will of the people, and became so authoritative that it could serve as the linchpin of the state: "A state on the brink of extinction is not

104 Shang-chun-shu chieh-ku 8.2a. 105 Kuan-tzu 16.7b and 7a; Rickett, Guanzi, 1985, pp. 262 and 261. See Ching-fa, "Tao-fa." 106 Han-shu 48.2237. A similar statement is in Hsin-shu 8.3b. 107 Hsin-yui 4.10b; For an analysis of Hsiin-tzu's influence on Lu Chia's political theory,

particularly his notion of balancing laws with good men, see Matsushima Takahiro &,!* , "Liiku Hsin-yui no seijin to kunshu" *W I-IODA L R+, Rinrigaku Nenpo W * 24 (1975): 141-52.




one without a ruler but one without law."108 tfit13 i9tft. Law was of such great importance, according to the Huai-nan-tzu, because it served as a "marking line" (chun-sheng *9) that the ruler could follow when issuing commands,109 and as a model for exerting control at all levels of government: "The purpose of setting up a bureaucracy in antiquity was to prevent the people from doing what they pleased and kingship was established to prevent the bureaucrats from tyrannical behavior. Law, written records, rites, and right conduct were the [means] by which the ruler was prevented from making decisions according to his own whims."110 The Huai-nan-tzu was primarily concerned with promoting responsible rulership, but its sections on law contain statements that come close to advocating a government of laws over a rule by man.

A certain caution about justifying the ruler's intervention in the legal system colors the Chinese philosophical and historical texts. In- deed, I find contradictory ideals of rulership in these writings. Advo- cates of a centralized state needed to formulate a model of rulership that allowed for active institution-building. Other elements in the tradition leaned toward passive, non-interventionist rulers. The myth of Huang-ti-the sage ruler who used laws and institutions to strengthen the state, and brought order to the world by using violence to end violence-111 resolved this contradiction. The Shih-liu- ching, one of the Ma-wang-tui texts, implied that once the state was established, Huang-ti would oversee all activities with a luminous intelligence-and order his assistants to correct the laws.112 Here Huang-ti acted as an agent of change when reform was necessary and as a passive supervisor once order was established. Similarly, the historical accounts describe Han emperors not as active lawmak- ers, but as grand judges who directed the clarification of the laws. Han Yuian-ti (r. 49-33 B.C.), for example, declared at the beginning of his reign that the laws must be made clear because they were

108 Huai-nan-tzu 9.14a; Ames, The Art of Rulership, 191-92. 109 Huai-nan-tzu 9.13b; Ames, The Art of Rulership, p. 191. 110 Huai-nan-tzu 9.13a; TheArtofRulership, p. 191. 11' See Sarah Allen, The Shape of the Turtle: Myth, Art, and Cosmos in Early China (Albany:

State University of New York Press, 1991). 112 See "Kuan" in Shih-liu-ching. Ma-wang-tuipo-shu t io,%Et% (Peking: Wen-wu

ch'u-pan-she, 1980).



314 KAREN TURNER

too numerous and contradictory to be serviceable."13 The laws and procedures governing the death penalty were handled with particular care; they were regularly reviewed by rulers and officials, who, following the correlative cosmological beliefs of the times, advocated restricting executions to the season of death. Sentenced criminals who escaped executions were described as having "passed beyond winter. "1'4 But more than one vision prevailed. So, while the legal bureaucrats diligently amended and added laws and centralized the penal system, the Han emperors argued in favor of less draconian punishments and issued amnesties.115 These acts of grace cannot always be connected to specific events, but rather seem designed to manifest the ruler's power to nurture life and regulate death.

LAW, HISTORY, AND NATURE

Max Weber described two major standards for measuring the legitimacy of law in traditional societies: a "primitive" idea that good laws preserve traditional ways of doing things, and a more abstract concept of universal standards based on nature."6 The first judged the goodness of law according to how well it conformed with tradition and guarded-the status quo, an idea realized in the early Germanic belief that the best law was the "good old law residing in common conscience and tradition." In this vision, law must be discovered rather than created by human agency.117 The classical Chinese texts discussed both models of law, but by Han times, the more conservative perspective dominated legal activities. Legal reform was often presented in terms of what Henry Maine called the "legal fiction," the myth that changes in the laws did not spon- sor genuine reforms but simply preserved the status quo.118 As Han Ch'eng-ti (r. 33-7 B.C.) declared after ordering his legal experts to simplify the regulations governing the death penalty, "We must

113 Han-shu 23.1103; Hulsewe, Remnants of Han Law, p. 340. 114 Hulsewe, Remnants of Han Law, pp. 104-5. 115 See Brian McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice

(Honolulu: University of Hawaii Press, 1981), pp. 12-36. 116 Max Weber, The Theory of Social and Economic Organization, trans. A. M. Henderson and

Talcott Parsons (New York: The Free Press, 1964), pp. 130-31. 117 Fritz Kern, Kingship and Law in the Middle Ages (New York: Praeger, 1956), p. xxi. 118 Henry Maine, Ancient Law (New York: Henry Holt, 1888), pp. 20-28.




strive to conform with the laws of antiquity."'19 When describing the old laws, however, most writers do not refer to the customary, unwritten laws of particular nations (as in the early Medieval West- ern kingdoms), but to written lessons that preserved the details of exemplary rulers' activities and decisions. By Han times, these ancient practices of kingship, recorded in the Shih ching, the Shu ching, and the Ch'un ch'iu, became an important source for judging contemporary legal cases.120 Therefore, some of the most active Han legal reformers, scholar-statesmen like Chia I and Ch'ao Ts'o, were educated both in Legalist techniques and in the lore of the Shih ching and the Shu ching. According to several passages in the Han histories, the officials and rulers called upon the "law of old" (ku chih/fa tAit) when judging difficult cases.121 As Sarah Queen has recently

shown, the Annals served an important function in legal decisions: "Han interpreters of the Kung-yang Commentary . . . maintained, for example, that the Annals was an authoritative text containing eter- nal moral principles by which all legal decisions were bound. More- over, when the ruler was involved in judging legal cases, he was likewise bound by the normative principles and judgments of the Annals and must base his judgments upon the precedents found therein. X'122 Because of his expert knowledge of the Spring and Autumn Annals, Tung Chung-shu played a role in important legal decisions, "' but he was no slave to the practices of the past. He was a reformer who drew from history to advocate workable policies to suit new political needs. For him, as for many Han thinkers, the power of tradition constrained change, but it also offered a means to ''appropriate historically a vocabulary" for "learning how to grasp and express the past anew."'24

119 Han-shu 23:1103; Hulsewe, Remnants of Han Law, p. 340. 120 I have discussed these issues in Karen Turner, "Sage Kings and Laws," pp. 86-112. 121 See Shih chi 106.2825 and 21.3125; see also Han-shu 23.1103 and 24.1138. 122 See Sarah Queen, "From Chronicle to Canon: The Hermeneutics of the Spring and

Autumn Annals according to Tung Chung-shu" (Ph.D. diss., Harvard University, 1991), p. 165. 123 Benjamin Wallacker, "The Spring andAutumn Annals as a Source of Law in Han Chi-

na," Journal of Chinese Studies 2 (1985): 59-72. 124 Hans-Georg Gadamer, The Relevance of the Beautiful and Other Essays, trans. Nicholas

Walker and ed. R. Bernasconi (Cambridge: Cambridge University Press, 1986), pp. 48-49. My attention was drawn to this work by Roger Ames, "The Mencian Conception of Ren xing: Does It Mean Human Nature?" in Chinese Texts and Philosophical Contexts: Essays Dedicated to Angus C. Graham, ed. Henry Rosemont, Jr. (La Salle, Illinois: Open Court, 1991), p. 167. On



316 KAREN TURNER

The philosophers and statesmen who appealed to the laws of antiquity believed that the actions of good rulers from the past were timeless, universal, and workable in new situations. David Nivison describes Hsiin-tzu's vision of the laws of the sages: "Through their superior intelligence they understood human nature and the in- escapable human situation, and so also saw that the introduction of order was necessary. . . . So seeing, they formulated laws and norms, and then not only promulgated them to men, but also recognized them as binding on themselves-seeing their moral order as having the same sort of ordering over all human life as do the rising and setting of the sun. '125 Hsiin-tzu viewed the particular decisions of good past kings as a natural authority, because they dealt wisely with universal human dilemmas. Han Fei was far more skeptical than Hsiin-tzu about the value of human decisions, and argued that law served as the best means to manage the bureaucracy and the people. But he, too, appealed to history to legitimate the connection between law and natural priniciples: "The early kings took tao as the constant standard and law as the basis of government. X126 Other authors advanced another step toward abstract theories of natural law when they severed ideal standards from any connection with history. In this latter scheme, nature itself took precedence, because it served as a more workable benchmark for the rulers' institutions and laws than historical experience. These authors described nature as the source of law and the principle that measured the legitimacy of laws once they were enacted.

In both the Western and Chinese traditions, writers in search of an abstract model for law found in nature accessible images to apply to human actions. The Chinese conception of law that most resembles the Western theory of natural law is expressed in the eclectic texts, which celebrate the tao as a timeless, universal model for government. How closely this idea of nature as a model for law matches late classical Western natural law theory must be carefully

the invention of tradition, see Eric Hobsbawm and Eric Ranger, eds. The Invention of Tradition (Columbia University Press, 1983), and Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso Press, 1983).

125 David Nivison, "Hsun Tzu and Chuang Tzu," in Chinese Texts and Philosophical Con- texts, p. 142.

126 Han-fei-tzu 5.310; Liao, 1:164-65.




considered. Elsewhere, I have argued that the Huang-Lao texts represent natural law thinking, a view that R. P. Peerenboom elab- orated upon in a recent study. According to Peerenboom, the Huang-Lao silk texts from Ma-wang-tui placed the highest normative value on the natural order, which served as a foundation for the construction of the human order.127 Moreover, he argues, Huang- Lao ideals represent a pre-determined natural law."28 I agree that a similar emphasis on bolstering law's authority marked both late classical Chinese and Western conceptions of law and nature. But I think that we must take account of the fundamentally different theories of knowledge-which determined who could participate in decisions about law-that separate Chinese and Western theories of natural law.

In the West, a vision of natural law that placed all humans within the same moral and legal universe and moved beyond the par- ticularism of Aristotle's political thought (which defended slavery as a natural condition and displayed disdain for foreigners) became important only after the Hellenistic empire extended the physical and civic boundaries of the Roman world. 129 As Roscoe Pound stated of Western trends, "The theory of natural law was worked out as a means of growth. . . . It was the task of the jurists to build and shape the law on the basis of the old local materials so as to make it an instrument for satisfying the wants of a whole world while at the same time insuring uniformity and predictability."130 Political changes similarly called for a broader conception of law in late classical China: the new imperial state demanded a universal standard, removed from particular historical or local roots, as a model for statecraft and institutions. This point is argued by Kitamura Yoshikazu, who states that natural law (which he identifies with the Greek conception of physis) became necessary in Han China, when local customs and habits were subordinated to the laws emanating from a

127 Peerenboom, "Law and Morality in Ancient China," p. 38. See my argument in "The Theory of Law in the Ching-fa. "

128 Peerenboom, "Law and Morality in Ancient China," p. 107. 129 Charles McIlwain, The Growth of Political Thought in the West (New York: The Mac-

Millan Press, 1932). 130 Roscoe Pound, An Introduction to the Philosophy of Law (New Haven: Yale University

Press, 1959), pp. 10-11.



318 KAREN TURNER

centralized regime. He sees the Ch'in calendar as artificial, because it did not conform to the seasons, and limited, because it was the product of one specific kingdom. The calendar was changed in Wu- ti's reign in part to harmonize actual agricultural patterns with the calendar, but more importantly, to distance the Han polity from the local laws and symbols of Ch'in. 13

The philosophical response to a new political and social reality in the late classical West came from the fourth century Greek Stoic thinkers, who identified the law of nature with the law of reason, a law accessible to all humans regardless of origins or status.132 In- spired by the Greeks, the most famous spokesman for natural law, the Roman jurist Cicero (106-43 B.C.), argued that since justice was neither particular nor mutable, it followed that true law did not dwell in the mind of any single man or state: "In determining what Justice is, let us begin with that supreme Law which had its origin ages before any written law existed or any State had been established. 1 33 Cicero identified natural law as, "true law . . . of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. .

It is a sin to try to alter this law . . . or to abolish it.'"'34 Cicero's description of natural law would become the classic definition in Western jurisprudence. In the Chinese texts, the Ching-fa's definition of law resonates most obviously with Cicero's: "The tao gives birth to the law," the text begins, and then adds: "Law is the marking line that determines success and failure and distinguishes the crooked from the straight. Therefore, one who holds fast to the tao can produce laws but dares not transgress them''l35 The Ching-fa describes the tao as a unified, timeless, and universal principle of nature that remained unchanged by human behavior, a reliable model for guiding the important activities of government-from appoint- ing officials, regulating state demands for labor and military ser-

131 See Kitamura Yoshikazu ItfJAfII, "Gokan no k6kan shis6 no kongen butei 'jumei' no imi" & MO A,dY, W,A F^Ibip-J ODR, KoshiShunju t5:4 1 (1984): 29-54. Kitamura identifies natural law with the yin-yang theories that developed in the Han period.

132 Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of Law (Cambridge: Har- vard University Press, 1962), pp. 12-13.

133 Laws 1.6. 134 Laws 3.22.

135 Ching-.fa, "Tao-fa.




vice, creating positive laws, initiating war, and determining appropriate punishments. Its overriding message is that law operated as a trustworthy standard only if it subordinated human will, laws, and institutions to the laws of nature.

Other Chinese texts linking law with nature adopt the pragmatic philosophy that the state's subjects would more likely obey laws that did not offend natural patterns or serve the ruler's selfish ends. The "Tao-fa" section of the Ching-fa defines the function of law based on tao:

One who lets himself be guided by law will be able to understand the world without delusion.... One who holds fast to the tao and watches over the world will not be prejudiced or self-seeking and will not carry out [unnatural] activities or harbor private motives.... Those who are public-minded can understand [this] and those who are most public-spirited can accomplish things.

The Kuan-tzu takes a similarly pragmatic approach: "Statutes, regulations and measures must be based on the tao. Commands and ordinances must be clear and open, rewards and punishments trusted and definite. These are the constant'standards for bringing a just order to the people."136 According to the Ho-kuan-tzu, this conception of tao-based law acted as a mechanism for illuminating the connection between the internal workings of nature and the external world of political life,137 for weighing life and death decisions,138 and for ruling with clarity and justice. 139 The tao described in these texts can be viewed as a metaphor for universal kingship. It was unified, passive, universal, timeless, and could work as a fundamental standard for making decisions without itself being transformed. More- over, the tao, although mysterious, could be known by the sage who purified himself, aligned himself with nature, and followed the example of the cycles of the seasons for conducting his public life. If rulers and officials held to the example of the predictable laws of nature when deciding state matters, they would avoid mismanage- ment, which in turn would spare them their subjects' anger and Heaven's wrath. The Ching-fa, in particular, presents Heaven as the ultimate force that sanctioned rulers who abused their power to

136 Kuan-tzu 6.4b-5a; Rickett, Guanzi, p. 256. 137 Ho-kuan-tzu 5.1 lb. 138 Ho-kuan-tzu 4.6a. 139 Ho-kuan-tzu 5.12a.



320 KAREN TURNER

command the labor and lives of their people. Such rulers "would either be killed by the people or punished by Heaven for their mis- deeds, according to the text.140 Because the relationship between tao and Heaven, (t'ien i), is murky in the texts, it is difficult to determine which carried the greater authority. But the two forces seem to serve different purposes: the tao remained unmoved by direct human manipulation; t'ien responded to reward or to punish human behavior, even if only as a mechanical reaction."4' Therefore, on the one hand, tao provided an ideal for an impartial, immutable, rule- governed order. On the other, t 'ien dispensed justice to those responsible for breaching the rules. Both conceptions served well those writers who aimed to convince the arbitrary ruler that he would not only become a destructive force in the world if he failed to conform with the laws of nature, but he would court the wrath of Heaven and thus endanger himself.

How closely this Chinese formulation of law derived from nature resembles classical Western theories of natural law is a difficult question, in part because legal theorists continue to debate the value of natural law. Contemporary Western advocates of natural law celebrate its commitment to the natural rights of humans; critics point out that natural law theories are so vague that they "must be based either on the dogmatic acceptance of an implausible worldview or on the subjective acceptance of the private conscience of each individual. 142 In modern times, the debate between natural law theorists and legal positivists hinges on the relation between human law and ethics: the former view law as firmly centered in normative concerns and the latter contend that law need not, and all too often does not, reflect any moral concerns. '43 Despite the complex history of natural law, it is possible to sort out enduring features of classical and

140 "Lun-yuieh." 141 Peerenboom surveys, in Law and Morality in Ancient China, some of the disputes that have

arisen over the relationship between tao and t'ien and argues correctly, I think, that the terms refer to different entities and that it makes little sense to debate which carried a higher authority.

142 A persuasive interpretation of the potential dangers of natural law, especially when linked with religious authority, is injeffrie G. Murphy andJules L. Coleman The Philosophy of Law (Totowa, N. J.: 1984), pp. 13-60.

143 The most influential spokesman for positivism is H. L. A. Hart. See The Concept of Law (Oxford: Clarendon Press, 1961).




modern natural law theories, as Lloyd Weinreb explains: "They can both be characterized . . . as denying a separation of 'is' and 'ought'; between the laws of nature and normative order, or between positive law and morality. "'44 The ability of the "reasonable man, " to judge the justness of the conventional laws and institutions of the state is important in these ideals. Cicero stated: [Law] is the mind and reason of the intelligent man, the standard by which Justice and Injustice are measured."'45 Aquinus maintained that, through reason, humans could obtain a glimmer of the highest law, the Di- vine Law of God, and through this vision understand the difference between right and wrong.'46 The Christian theorists agreed with Cicero's contention that the individual's obligation to obey the laws of the state depended on whether these laws conformed to natural standards of justice.'47 It must be noted that throughout Western history, the category of the "reasonable man" has been limited, not only by gender, but also by education and wealth. Nonetheless, the late classical contention that ordinary individuals in principle possessed the means and the right to judge the laws of the state continues to influence Western ideas of law. Both the common law tradition, which relies on applying the reasoning behind previous decisions to new cases, and the civil law system, which rests on implementing statutes that reflect the intelligence of legal reformers, are founded on the assumption that individuals can discover, interpret, and apply laws. The ideal behind the trial by jury, for example, assumes that peer judgments can produce just decisions.'48

In sharp contrast to the Western belief in the judgmental capacity of the common man, the Chinese held that only special individuals possessed the special quality of knowledge, or "gnostic wisdom," that enabled them to read the signs offered by nature and then follow these signals.'49 Some texts asserted that, with the tao in mind, the sage ruler could transcend the petty affairs of humans and the

144 Lloyd Weinreb, Natural Law and Justice, p. 3. 145 Laws 1.6. 146 Summa Theologica 2.1.93.3. 147 Cicero, Laws 1.14; Augustine, City of God 2.21-23. 148 Roscoe Pound makes this point, based on a comparative study of Chinese and Western

principles of codification. See "Comparative Law and History as a Basis for Chinese Law," Harvard Law Review 61 (1948): 749-62.

149 See Benjamin Schwartz, The World of Thought in Ancient China, p. 248.



322 KAREN TURNER

boundaries of normal intelligence. In quiet, passive meditation, the sage ruler interpreted and followed natural laws, and in so doing, complied with divine will. As the Ching-fa recorded: "Only with a clear vision can the ruler keep Heaven's good will. This text argued that a ruler in tune with the tao would not be confused by details or motivated by personal desires; he could eliminate contradictions in laws and punishments by taking nature as his model. "Just as the four seasons keep to a proper order without deviations, so too should laws and procedures be constant," according to the Ching-

fa.'50 The sage who possessed the qualities necessary to read nature could understand how to apply its lessons to matters of state."5' Therefore, although the Ching-fa's political theory is founded on the assumption that all living creatures responded to natural patterns, it is also addressed its arguments to reach the few sage-like humans who could read natural signs and then determine how to act. Thus, Chinese natural law theorists directed their arguments not toward all humans, but toward rulers endowed with a fiduciary duty to implement institutions and laws that would benefit the whole community.

In conclusion, both late classical Chinese and Greek writings about the laws of nature constructed an image of abstract, natural law at a time when territorial expansion created a need for standards that could apply to subjects accustomed to following local laws and habits. In both cases, philosophers who advocated natural law assumed that human laws must be tied to normative patterns more authoritative than the will or desires of any human agency. Both traditions espoused the ideal that natural law must act as a guide to restrict coercion rather than to sanction unlimited state power. And in China and the West, the actual influence of the classical natural law heritage is difficult to trace. In the view of some modern Western theorists, natural law has served as a powerful reminder that all humans possess certain natural rights that carry more moral weight than any official laws.152 Natural law has also been manipulated to reify the state's authority, in the view of

150 "Lun-yueh." 151 For a discussion of the Western notion of the law of nature, see D. M. Armstrong, What

is a Law of Nature? (London: Cambridge University Press, 1983), p. 4. 152 John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).




others.'53 Moreover, Western history offers few examples in which natural law theories actually curbed despotism.

In the Chinese case, natural law theory justified an authoritarian polity that placed the responsibility for life and death decisions in the hands of a small, properly indoctrinated ruling elite. It created a climate that should have induced elites to take great care when making these important decisions. And in the Han texts, we do find that rulers made important decisions about war and punishment in con- sultation with their advisers. But precedent seemed a far more reliable resource for legal decisions than natural law. '54 Perhaps the idea of basing law on the tao was too vague and malleable a guide to be trusted as readily as a text-based knowledge that drew from the concrete lessons of the past. Or perhaps the conception of what was "natural" came to be identified with the good of the dynasty and the state. As Hulsewe points out in Remnants of Han Law, a category of crimes labeled pu-tao did exist in Han times. But from what I can glean from the sources, crimes in this category generally were those that threatened the dynasty or the state.'55 Whether or not tao was linked with legal matters after the fall of the Han deserves further study. A vignette concerning a Sung dynasty debate about a compli- cated legal case suggests that the tao did enter deliberations about law. In this case, Wang An-shih argued in favor of keeping to the provisions of the formal written law to ensure consistency in punishments, while Ssu-ma Kuang declared that the tao provided a more authoritative norm for decisions-for those sufficiently learned to understand its meaning.'56

The most important difference separating late classical Chinese and the Western legal theory lies in the limits of participation that natural law theorists envisioned. Out of classical Western natural law theory emerged a deep attachment to the natural right of all humans to judge whether official laws and demands were sufficiently

153 For an analysis of how natural law theories supported German fascism, for example, see Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Dover, N. H.: Berg Press, 1986).

154 In a search through a computer database containing the Han histories, I found no passages that linkfa directly with tao.

155 Hulsewe, Remnants of Han Law, pp. 152-62. 156 John Langlois, " 'Living Law' in Sung and Yuan Jurisprudence," HJAS 41 (1981):

165-217.



324 KAREN TURNER

reasonable to merit obedience. In contrast, the strand of Chinese thought that I have explored here focused on developing a bureaucratic ethic that served the relatively small group of ruling elites responsible for making decisions. This bureaucratic scheme placed a high value on consistency, impartiality, and universality, conditions that would foster the security and opportunities of certain groups in Chinese society, such as rulers, officials, and merchants. If one assumes, as contemporary Western natural law thinkers have done,157 that all humans prosper more readily when government intervention is predictable, the values attached to natural law would indirectly benefit ordinary people as well. But in the end, Chinese natural law theories seem more dedicated to defining the responsibilities of officials and rulers rather than to supporting the inherent right of ordinary people to act as agents in the process of creating, implementing, and judging law.

157 John Finnis in Natural Law and Natural Rights designates freedom from arbitrary state intervention as a precondition for human rights.



war, punishment, and the law of nature in early chinese concepts of the state

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