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

In the Critical Thinking tab on this website, you’ll find many of the most common stereotypes about China and Chinese culture. One not discussed there is the notion that justice in China has always been arbitrary and cruel. It would be hard to deny that this was often enough the case during the Maoist era, that era that overlaps the lives of most people living today. Indeed, Maoist China’s dubious distinction as the world’s leader in the use of capital punishment has contributed to the longevity of the myth.But the real question is, is arbitrary justice a long-standing tradition in China or was it imported with other Soviet practices during the mid-twentieth century? Proponents of the first view sometimes point to the legality of torture in pre-modern China and the occasional use of some horrific punishments, particularly “lingering death” (凌遲). Since torture was legal for most of Western history also, and has recently been endorsed under certain conditions even in the U.S., it would be difficult to argue that this is a peculiarity of the Chinese tradition.

As for lingering death, the creators of the website Turandot: Chinese Torture / Supplice chinois [] have convincingly demonstrated that the myth of Chinese cruelty is deeply rooted in Western prejudice and has persisted to the present day. While the death penalty remains in place for sixty-eight crimes in contemporary China, legal scholars and judicial officials in China continue to debate the morality, utility, and efficacy of the death penalty. 1 This ongoing debate undoubtedly has contributed to recent legal reforms: most notably, as of January 1, 2007, the Supreme People’s Court (SPC) will review all death sentences. 2 The recentralization of control over the review of death penalty cases immediately calls to mind the centerpiece of China’s traditional criminal justice, the annual review of capital cases at the autumn assizes (秋審).

Changes in the review of death penalty cases notwithstanding, recent statements by high judicial officials have made it clear that the death penalty will not be abolished in China any time soon. SPC Vice-president Wan Exiang has stated, “The question is almost beyond discussion in China because the millennium-old notion of murderers paying with their own lives is deeply ingrained in people’s minds.” 3 On the other hand, Xiao Yang (肖扬), President of the China Supreme Court, has urged judges in capital cases to be very cautious, “as if walking on thin ice.” According to Xiao, “In cases where the judge has legal leeway to decide whether to order death, he should always chose not to do so.” 4 These two comments from the vice-president and president of China’s Supreme Court encapsulate two contradictory historical dispositions toward capital punishment: a presumed popular penchant for retributive justice versus an elite ideological preference toward leniency. For a historian who has studied the prosecution of capital crime during the Qing, the recent reforms in death penalty sentencing and the official rhetoric surrounding debate over the use of capital punishment have a particular resonance. In fact, President Xiao’s remarks are reminiscent of the Qing administrative manual, which admonished magistrates to “always lean toward leniency.” 5 While the more merciful legal institutions of the late imperial period suggest that normal practice was closer to the elite propensity to seek leniency, 6 when violent crime was perceived to be on the upswing, as one might expect, Qing emperors and judicial officials also called for harsher punishment targeted at criminal elements.

1 See Zhang Ning, “The Debate Over the Death Penalty in Today’s China”, China Perspectives, no. 2 (November-December, 2005)

5 Huang Liu-hong,p. 288, Complete Book Concerning Happiness and Benevolence. Trans. and ed. Djang Chu. Tucson: University of Arizona Press, 1984.

6 See Thomas Buoye “Suddenly Murderous Intent Arose: Bureaucratization and Benevolence in Eighteenth-Century Qing Homicide Reports,” Late Imperial China 16.2 (December, 1995), 95-130.

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