Classical Period

CASE 7:  Homicide and the Law in 18th Century China

The idea that the law should be applied equably irrespective of class background was a fundamental tenet of classical bureaucratic theory in China. During the third century BCE, Han Feizi (mid-third century BCE) wrote that, “[Under the law] punishments will not escape even the highest officers, while rewards will not discount even the commonest man.” 刑過不避大臣, 賞善不疑匹夫.

As early as the second century BCE we find the basic principle of equality stated in works like the Book of Master Huainan:

Although there may be executions in the nation, it is not because of the monarch’s wrath; although there may be promotions at court, it is not because the monarch grants them. If criminals are executed, they do not resent the monarch because their punishment is the consequence of their own crime; if men are promoted, they do not feel they owe it to the monarch because this is the consequence of their own accomplishments. (In this way) the people will know the source of promotions and punishments; they will know that it all depends upon their own persons.
Huainan honglie jijie 淮南鴻烈集解 (collected annotations on the Huainan honglie) 2 vols. (Beijing, 1989), 9.282.

Such sentiments were standard in the bureaucratic theory of the period. What it says is that the legal system, like other aspects of government administration, should operate independently of the monarch. If people are promoted, it’s because their performance was good; if people are sentenced, it’s because they actually committed a crime. The responsibility for determining whether a person is promoted or punished lies entirely with the individual.

This implies that all persons should be treated equally. That principle was stated early on in Chinese political theory under the phrase bianhuqimin 编户齐民, or “registered citizens are equal under the law.” Of course, as in all societies, some people were more “equal” than others, but in response to this principle we find laws being passed to ensure equal treatment for disadvantaged groups. In 35 CE, for instance, an edict was issued extending the protection of the law even to slaves: “It is the nature of heaven and earth that mankind is noble. Whoever kills a male or female slave shall be punished to the full extent of the law” 天地之性,人为贵。其杀奴卑,不得减罪. In fact, during the Han dynasty, a duke was stripped of his title after murdering a slave!

Notice that, in this edict, the term “mankind” includes both male and female slaves. Since these would have occupied the lowest rung on the social scale, the edict makes it clear that “mankind” refers to everyone. Just as interesting is the use of the term “noble.” That character for “noble” once referred only to the nobility, but here it refers to all human beings.

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HOW IT EVOLVED IN HISTORY: Medieval/Early Modern Periods

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