Virtue instruction as the mainstay with a supplement of legal punishment was the philosophy of governance traditionally advocated by ancient Chinese rulers, where much attention was paid to rituals that stipulated social norms while the law was used as a last resort to punish various criminal acts. Invigorating China through rituals and music has been spread throughout the long Chinese civilization and has become an indispensable part of numerous Chinese people.
What were the rituals in ancient China?
The rituals in ancient China, originally referring to a kind of ceremony where people offered sacrifices, came into being along with the emergence of primitive religions. As described in The Books of Rites(礼记), original rituals required people to roast the food, grains, and meat on rocks before offering them to the gods and spirits and to dig a pit in the ground to hold water before offering it to them with both hands. At the same time, thatch and earth would be made into drums and drumsticks for the beating. All these were intended to pay homage to the gods and spirits. In this respect, rituals are inseparable from religious sacrifice.
As society progressed, the rituals changed in their meaning and functions beyond the area of rites, initiating their important role in establishing social hierarchies and regulating interpersonal relations gradually. Continuous development in social productivity at the end of primitive societies gave rise to a soaring increase of surplus products, which eventually spawned the concept of privateness before the birth of private ownership. It scaled up conflicts between people and destroyed the harmonious and equal social relationships with their increasingly hierarchized social status due to their difference in resources, wealth, and power. To moderate their conflict of interests, the ruler needed to restrain people’s behavior by promoting some social norms, of which an important part lay in rituals. Closely linked to private ownership, they served as a powerful instrument to manage society, which was assured by major ancient events of the state in politics, military affairs, foreign relations, rituals, imperial examinations, and culture among others having bearing with rituals.
Rituals were systematically well-established during the Western Zhou Period. The Rites of Chow, The Book of Etiquette and Ceremonial, and The Book of Rites, collectively known as the “Three Rites,” specifically recorded the ritual system at that time. When the Zhou Dynasty was first established, in order to maintain the political mandate to stabilize the regime, the Duke of Zhou recreated the rites and music by referring to the ancient ones in the Shang Dynasty and the pre-Xia period. As was recorded, almost all the imperial events at that time were subject to various types of ritual systems. Meanwhile, the process of performing “rituals” or ceremonial procedures was also very detailed. As a result, a hierarchical system with social norms was established.
According to the scope of application of the rituals, the Rites of Zhou were divided into the following five kinds: the first was the auspicious rites (吉礼ji li)used in offering sacrifices; the second was the funeral rites (凶礼xiong li) used in funeral ceremonies; the third was the military rites(军礼jun li) used in the army; the fourth was the welcoming rites (宾礼bin li) used in the reception of guests; and the fifth was the congratulatory rites (嘉礼jia li) used in banquets, weddings and the coming-of-age ceremonies. Since the formulation of the Zhou rites, everyone would have to strictly abide by them without any violation. Although with different contents and entries, their core was to establish a hierarchy-based political system. It was in line with the Zhou Dynasty’s feudalism, which established the supremacy of the Son of Heaven with a strict hierarchy from the Son of Heaven to the vassals and the subjects. By stipulating their obligations to obey the orders and rule of the Son of Heaven, it rationalized the relationship between the central and local authorities and between the king, the vassals, and their subjects, maintaining the social order and strengthening the rule of the dynasty.
The Rites of Zhou are inseparable from music. Rites emphasize hierarchy and distinction, while music focuses on harmony and coordination. Music often has the invisible power for inspiration and edification. Elegant music can cultivate people’s bodies, minds, and temperaments, having a positive impact on them, while the decadent kind can make people indulge themselves in a negative way. Therefore, rulers usually advocated using noble music to guide people to goodness, harmonize their spirits, cultivate their sentiments, make people insensibly obey the rituals, and change their ethos and customs. Usually, music and rituals promoted each other, jointly playing an important function in stabilizing social order.
During the Spring and Autumn Periods, the Rites of the Zhou began to degenerate in response to the radical changes in the social order, resulting in the situation where “rites collapse, music spoilt.” During the Qin Dynasty, the rulers prioritized strict laws instead of the rites and music advocated by Confucianism. The fall of the Qin dynasty in the wake of the reign of its second ruler showed the unsustainability of the rule of harsh laws. The Han dynasty learned this lesson and began to restore the ancient ritual system at the beginning of its founding so as to achieve long-lasting peace through the effective combination of rituals and penal systems.
Thanks to its important role in establishing the hierarchy and maintaining social order, the ritual system was taken seriously by emperors from the Han Dynasty onward to strengthen their rule. Emperor Wu of Han followed the advice of his minister Tung Chung-shu and implemented the national policy where “virtue dominates while punishment subordinates.”During the Song Dynasty, rituals were integrated with ethical and moral teachings, serving as an important tool to promote Confucian ritual religion.
Accompanying the ancient Chinese social system, the ritual system shows the following characteristics in its 2, 000 years of evolution: First, the rituals were increasingly formal and institutional. From the Qin and Han dynasties until the Qing dynasty, successive rulers instituted administrative departments dedicated to the management of rituals and music. The central governments of all dynasties appointed officials in charge of etiquette. Established in the Sui and Tang dynasties, the Ministry of Rites, one of the Six Ministries under the Department of State Affairs, was the central government agency to take charge of rituals, which enjoyed a higher political status and managed ritual affairs in a wider scope. Second, generations of rulers vigorously promoted the ritual system, which permeated all aspects of social relations as rituals were always a powerful tool to strengthen the monarchy and maintain the ruling order. Third, as the contractual relationship in ancient China was not well developed, the implementation of the ritual system played an important role in regulating people’s social behavior and promoting social interaction and professional ethics. As specific guidelines in people’s daily lives, the rules of etiquette could compel people to behave themselves, actually complementing and fortifying didactic teaching.
Rites and music contained the ancient rulers’ way of governance, which could correct people’s minds, determine customs, and distinguish affinity from estrangement through the soft power of moral edification. Therefore, it was often considered that ruling by rituals embodied the virtuous rule of the king, which, together with the rule of penalty, constituted a two-pronged ruling strategy for ancient rulers. On the one hand, rituals were valued for nourishing the people’s minds through moral edification; on the other hand, the rule of penalty was valued to consolidate the ruling order through coercive means. From the very beginning, rituals and music inevitably were tools to maintain the political authority of the ruling class. However, the long-term implementation of the ritual system objectively allowed rituals to penetrate into all aspects of social life, and people used them every day unconsciously, which effectively improved the overall civilization of the Chinese nation and thus shaped the image of China as “a land of ceremony and decorum.”
What were the rules and laws in ancient China?
The rule of law was also a means of governance and one of the political norms in ancient China. At a macro level, justice corrected those that violated the rules and regulations. The judicial system in ancient China mainly includes the setting of judicial organs and officials and systems of litigation, trial, prison, and judicial supervision.
Long before the Xia Dynasty, rulers had begun to enact laws, appoint judicial officials, and set up judicial executive organs such as prisons. In the Xia Dynasty, the king held the power of judicial trials. In the Shang Dynasty, the national management model was further improved, and the supreme ruler also prepared officials in charge of law and justice to assist in handling judicial, penal and prison-related affairs. At that time, there existed a tradition of worshiping ghosts and gods while cases had to be adjudicated with the art of divination which gave rise to “the group of psychics”(zhen ren ji tuan) engaged in the activity, playing an important role in the administration of justice. Still, as the supreme rulers of the country, the kings of both dynasties always had the greatest power in legislation and judicial decisions.
The judicial system of the Western Zhou was further improved, proved by that a more systematic judicial system from the central to the local levels was established. During the Western Zhou Period, the king held judicial power at the highest level of the country. The Minister of Justice (大司寇da si kou) was the highest official in the judicial organization, assisting the king in judicial matters. As for some major or complex cases that could not be determined independently, they had to be reported to the king for his decision. Under the Minister of Justice were staffed with many officials for judicial affairs. Their duties were strictly and specifically divided, and they were responsible for different affairs, which constituted a large judicial bureaucracy. The vassal states set up their judicial organs with reference to the judicial establishment of the Zhou Kingdom, which was much the same except that it was not as well-established as that of the Zhou Kingdom. It can be concluded that the Zhou Dynasty had already established a relatively perfect judicial system from the central to the local and even at the grassroots level.
During the Spring and Autumn and the Warring States Periods, annexation wars often occurred between vassal states. To strengthen themselves through reforms, some of them attached great importance to the law to maintain social order and fortify their rule. With a large number of laws and regulations enacted, the importance of judicial affairs and officials was promoted.
After unifying China, Qin Shi Huang integrated laws throughout the country and established a centralized judicial system. The central government of the Qin Dynasty implemented a policy of Three Councilors and Nine Ministers. The former refers to the prime minister (丞相cheng xiang), commander-in-chief (太尉tai wei), and the grand censor (御史大夫yu shi da fu), who were respectively in charge of administration, military affairs, and supervision. And the prime minister and the grand master of censors would step in for some important cases. Among Nine Chief Ministers, there was Chamberlain for Law Enforcement (廷尉ting wei), which was the highest judicial official in the central government and specifically responsible for judicial penalties and prisons. The cases he tried included those entrusted by the emperor or involving central officials and those in doubt or difficult to detect, which were reported from all over the country. In all cases, it was the emperor that made the final decision.
At the local judicial system level, the Qin Dynasty witnessed the establishment of a system in which local administrators were also in charge of justice. Therefore, a system had been set up in which administrative and judicial functions were united, with no separate local judicial institutions. There were two levels of local administration: prefectures and counties. They were administered by the prefecture governor and county magistrate, respectively, who were administrative and justice officials responsible for the administration and trial of cases. Under the leadership of the prefecture governor and the county magistrate, there were the prefecture assistant and the county assistant, respectively, who assisted in handling judicial affairs. The local government had the right to hear ordinary cases independently but had to report major cases in doubt to the central government, which would be processed by the Chamberlain for Law Enforcement. In the grassroots society administratively below the county level, there were town chief (啬夫se fu), village head (亭长ting zhang), and community head (里正li zheng) who were responsible for handling simple civil disputes and maintaining stable and peaceful order at the grassroots level.
The Han Dynasty inherited the judicatory system from the Qin Dynasty, which was also divided into two levels: central and local. In the early Han period at the central judicial level, the Chamberlain for Law Enforcement (which was renamed as the grand judge, da li, temporarily under Emperor Jing and Emperor Ai) was still the highest permanent judicial official as one of the Nine Ministers and with duties much the same as those in the Qin Dynasty. In addition, these officials would hear some special cases together with their colleagues, such as the prime minister and the grand censors. The Chamberlain had a prison called Tingwei Prison, one of the most important central prisons. At the local judicial level, the system where administrators took charge of both administration and justice was still in effect during the Western Han Dynasty, with administrative and judicial organs divided into two levels of prefectures and counties. At the same time, there were local seniors of virtue who could mediate lawsuits and play an educative role. It reflected Han’s law philosophy that “virtue is dominant while punishment is ancillary.” In the Eastern Han, based on the two-tier local government administration of prefectures and counties, the provincial administrative level (州zhou)was added, whose head was called Regional Governor (州牧zhou mu) responsible for disposing of appeals from the two governments administratively below.
During the Three Kingdoms, the Jin Dynasty, and the Northern and Southern dynasties, the judicial system of the Han was mostly inherited. Still, there were also some developments, as shown in the transformation of the Chamberlain for Law Enforcement into the President of the Supreme Court (大理寺da li si) in the Northern Qi Dynasty, which scaled up the judiciary organ and further strengthened its trial function as the judiciary in the central government. In later generations, it continued to be improved on that basis. Emperor Ming of Wei accepted the suggestion of Wei Ji, one of his subordinates, and devised the post of Legal Erudites (lu bo shi), which marked the beginning of legal education in ancient China. At the local judicial level throughout the Three Kingdoms, the Jin Dynasty and the Northern and Southern dynasties, the previous system of the Han Dynasty was still in effect where the administrators also handled judicial affairs.
The Sui and Tang dynasties were a critical period further improving the ancient Chinese judicial system, which became increasingly well-established. It is proved by a new state administration system of the Three Departments and Six Ministries (三省六部san sheng liu bu) as the core and the Supreme Court among other departments as the support. Among them, the Supreme Court and the Ministry of Justice held the judicial power yet with different divisions of functions: the former for judge-related affairs and the latter for judicial and administrative affairs.
The Supreme Court, established at the beginning of the Sui Dynasty, was responsible for judicial affairs, legal training and education, and prison management. It was mainly responsible for the trial of crimes committed by the central officials and the major cases whose punishment was above the sentence of exile in the capital, accompanied by disposals of various complex cases handed in by the local authorities, while the death penalty cases had to be reported to the emperor for approval or his final decision. The Ministry of Justice was the central judicial and administrative organ, whose chief official was the Minister (尚书shang shu), and the deputy chief official was the Vice Minister (侍郎shi lang), with many other subordinates. In addition to being in charge of the central judicial administration, the Ministry of Justice was also responsible for reviewing cases. To improve the profession of judicial personnel, the Sui government also set up eight legal erudite in the Supreme Court, who were mainly responsible for legal education, research, and training of judicial personnel. At the same time, the Court and the Ministry also had professional judges who were well-versed in the law, and they must judge in accordance with the relevant legal provisions.
The judicial system of the Tang Dynasty basically followed that of the Sui Dynasty. In the central government, the Supreme Court and the Ministry of Justice held the main judicial power. Sometimes, the President of the Supreme Court, the Minister of the Ministry of Justice, and the Grand Censors would participate in the trial of a major case in doubt together before the emperor made the final decision. During the Sui and Tang dynasties, the local judiciary was divided into two tiers of prefectures and counties, with local administrators also managing judicial affairs, including litigation. During the Tang Dynasty, the local judiciary was much better than that of the Sui Dynasty.
During the Song Dynasty, the judicial organs included trial, review, and supervision institutions at all levels. Its trial system largely followed that of the Tang Dynasty, well-established from the central to the local level. Moreover, temporary trial organs would be set up, depending on cases and trial targets. An important judicial innovation of that time was to separate the case trial from the judgment, which was handled by different officials. The separation restrained the power of judicial officials and helped avoid judicial rigging, which was an improvement in the traditional judicial system.
The Yuan Dynasty had Mongolian characteristics in the setting of state institutions. At the level of central judicial institutions, it mainly set up the Highest Court of Justice (大宗正府da zong zheng fu), the Ministry of Justice, the Censorate (御史台yu shi tai), the Palace Secretariat (枢密院shu mi yuan), and Commission for Buddhist and Tibetan Affairs (宣政院xuan zheng yuan). Abandoning the Supreme Court, the Yuan dynasty established the Highest Court of Justice to take charge of legislation, including trial affairs. The head of the agency was usually a Mongolian nobleman. At the local judicial system level, the province, circuit, prefecture, and county administrators were responsible for the trial of local cases. When monks were involved in the cases, the administrative heads and officials in charge of religious affairs were required to hear them together.
During the Ming Dynasty, the prime minister post and the system of the Three Departments were abolished, and emperors were directly in charge of the Six Ministries. The judicial power, especially the highest power for the decision, was firmly in the hands of emperors. The central judicial organs were composed of the Ministry of Justice, the Supreme Court, and the Censorate (都察院du cha yuan), which held the power of trial, review, and supervision, respectively. Local administrative organs also were responsible for judicial proceedings. Later, the Ming judicial system was largely followed by the Qing government.
In general, the history of the Chinese judicial system over the past several thousand years reflects the ancient Chinese judicial strategy where moral education was advocated with cautious punishment, paying equal attention to trials and supervision, and emphasizing moralization and mediation. In particular, it was a significant experience shaped in ancient Chinese social practice of justice to invite respected local elders to conciliate in civil cases at the grassroots level, giving full play to rituals and edification. Compared with Western justice, the Chinese judicial system distinctly reflects the unique oriental wisdom. At the same time, it must be acknowledged that the imperial power was dominant in ancient Chinese society, as shown in the fact that the emperor’s will was the law. Therefore, the judicial practice represented distinctive characteristics of “rule of man,” largely losing its independence.