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East Asian Legal Traditions
East Asian Legal Traditions Pa¨r Cassel, University of Michigan, Ann Arbor, MI, USA Ó 2015 Elsevier Ltd. All rights reserved.
Abstract Most East Asian legal traditions were heavily influenced by Chinese thought and statecraft, which can be traced back at least 3000 years. Confucianism, which made familial duties a central feature of all social obligations, had a formative impact on both the Chinese and the Korean legal orders. Japan was also heavily influenced by the Chinese legal system, but was more selective in its adoption of those models, because of the fragmented nature of the Japanese political order. Beginning in the late nineteenth century, East Asia came under heavy Western influence and all legal systems were ultimately reformed on Western models, leaving few formal traces of the previous legal order.
With a recorded history of more than 3000 years, the legal orders in China proper have exercised a major influence not only on its neighbors, especially Korea, Vietnam, Ry uky u, and Japan, but also on a number of ‘conquest dynasties’ that ruled parts of traditional Chinese territories or controlled areas contiguous to China proper. Practically everything we know about the early states that existed in proximity to the Chinese dynasties has been handed down to us through the medium of classical Chinese, and East Asian rulers took the ideal of the Han (206 BC–AD 220) and Tang (618–907) dynasties at the height of their power as the purest expression of an idealized Confucian order. Therefore, any inquiry into East Asian legal traditions has to begin with a discussion of the legal orders that developed in China proper from the first millennium BCE. At the same time, we have to be cognizant of the fact that the uniformity of the written Chinese language, which was the preferred idiom of Chinese dynasties and many non-Chinese states, often masks the realities of societies that were regionally, ethnically, and socially diverse, and subject to significant change over time. Consequently, no claims of a continuous and unbroken East Asian legal tradition harking back to Chinese antiquity should be taken at face value.
The Great Tradition Very little is known about the legal order in preimperial China, but fragments of laws from the western Zhou dynasty (1050– 771 BCE) have survived in bronze inscriptions and historical chronicles. One of the earliest historical records on the early Chinese legal order is found in the chapter ‘The Punishments of Lü’ in the canonical historical work Book of Documents (Shàngsh u), which outlined some early laws and the classical form of the ‘Five Punishments’ (w u xing). It is unclear whether the original five punishments were ever practiced, but in their classical iteration, they included ‘tattooing of the face’ (mò), ‘cutting off the nose’ (yì), ‘cutting off the feet’ (yuè), ‘castration’ (gong), and ‘decapitation’ (dàpì). It is not clear if any single code existed during the Zhou dynasty, but there is ample evidence that laws were recorded on bronzes during the Chinese antiquity. At a very early stage, Chinese thinkers seem to have regarded legal action, litigation, and punishment as signs of failure on the part of the sovereign’s ability to exercise a moral influence on its subjects to abstain from criminal and other
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asocial acts. Thus, it is not surprising that the introduction of penal law is attributed to the non-Chinese and according to the Book of Documents, the five punishments were handed down from non-Chinese peoples, such as the Miao People in what is today southwest China (Creel, 1970). The eastern Zhou dynasty (770–256 BC) witnessed the weakening of central royal authority and the relative strengthening of the Zhou vassals, who emerged on ambitious projects of state building and availed themselves of the advice from a new class of literati. During the Spring and Autumn (770–476 BC) and Warring States (475–403 BCE) periods, a number of contending schools of statecraft emerged, many of which claimed to have answers on how to best use law and punishment to create strong and prosperous states. The two most successful schools were the Confucian and Legalist schools of thought. Very much in line with earlier trends in Chinese thought, the Confucian school argued that the family was a microcosm of the state and that a just ruler should govern by providing good example to his subjects by maintaining the Confucian family system and rituals, which were supposedly perfected by the sage kings of the Xia, Shang, and Zhou dynasties. Confucians saw laws and punishments only as a last resort and warned that excessive use of punishments would only make people into fawners who did not internalize the positive norms of the Confucian order:
Guide them by edicts, keep them in line with punishments, and the common people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with the rites, and they will, besides having a sense shame, reform themselves. Confucius, 1979: 63
Confucians also assumed that common people would harbor a higher sense of loyalty toward their family than to the state, and Confucius explicitly approved of family members covering up each others’ crimes (Confucius, 1979: 121). The Legalist school did not disfavor familial duties per se, but it argued that a strong and prosperous kingdom could only be maintained if the ruler applied strict and predictable rewards and punishments, which would produce politically obedient and economically productive subjects. In contrast to the Confucians, who idealized the early feudal Zhou state and denounced vassals who proclaimed themselves kings as
International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 6
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usurpers, the Legalists wanted to establish a centralized and militarized state that imposed heavy obligations on its subjects. They saw law as an extension of administrative power and regarded rewards (shang) and strict punishments (fá) as central tools of a ‘behavioral science’ that would produce law-abiding and productive subjects who would render loyal service to the state (Schwartz, 1985). Indeed, the Chinese term for legalist (fajia) can be translated as both the ‘school of law’ and the ‘school of methods.’ The legalists also advocated that all laws should be equally applied to all subjects of the state, regardless of social status, with the notable exception of the sovereign himself. The King of Qin, Ying Zheng (260–10 BC), was one of the most prominent patrons of the legalist schools and when he established himself as hegemon of China proper and the First Emperor of Qin in 220 BC, the Legalist school scored an early victory against the Confucians and participated in the building of a strong state where centrally controlled counties and prefectures replaced the old territorial states of the Zhou vassals. Very few fragments of Qin Law have survived to this day and the Qin dynasty did not survive the death of the first emperor by many years; when Liu Bang (256/247–195 BC) established the Han dynasty in 206 BC, he not only preserved the centralized state structure of the previous dynasty and many of its legal institutions, but also set out to restore the status of Confucianism as the central doctrine of the state. One product of this endeavor was what the legal historian Chü T’ung-tsu dubbed the ‘Confucianization of law,’ that is, the ambition to enforce Confucian norms and family hierarchies through penal means, an idea that probably would not have appealed to the founders of the Confucian school, yet this set the pattern for most subsequent imperial dynasties (Ch’ü, 1965; Goldin, 2012). The Han Code itself has only survived in fragments and scholars have had to resort to careful reconstruction in order to provide a full picture (Hulsewé, 1955). After the fall of the Han dynasty in 220 AD, China was divided into a number of competing dynasties that contended for hegemony over the central plains and only periodically unified under a centralized state. In order to bolster their claim to legitimacy, the contending states maintained many of the institutions that harkened back to the Han dynasties, but this often covered up political realities that failed to live up to the meritocratic and Confucian ethos of the Han Dynasty (Hucker, 1985: 17).
China and East Asian Legal Orders during the Middle Period The short-lived Sui dynasty (581–618) unified China and promulgated a penal code shortly after its ascension to supremacy, but the original text of the code disappeared when the dynasty crumbled and is no longer extant. However, most of the Code survived, as the subsequent Tang dynasty (618– 907) based its 653 penal code on the Sui Code. The Tang Code, which consisted of 501 articles and was divided into 12 thematic sections, is the earliest legal code that has survived in its entirety. Practically all laws in the Tang Code were of a penal character and there was no separate code regulating private relations. The law was hierarchic in nature and the
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much-vaunted ‘Confucianization of law’ was manifested in the fact that criminals, when found guilty, were sentenced in accordance with their status in the Confucian family system, defined by the ‘Five mourning degrees’ (w u fú). Another expression of both Confucian hierarchies and the aristocratic nature of Tang society was the ‘Eight deliberations’ (ba yì), which provided for various forms of special treatment for status groups, such as the imperial house and virtuous officials (Johnson, 1979). In the Tang Code, the five punishments were redefined as ‘caning with light stick’ (chı), ‘caning with heavy stick’ (zhàng), ‘penal servitude’ (tú), ‘life exile’ (liú), ‘military exile’ (chongj un), and ‘capital punishment’ (sı). Capital punishment was divided into two categories, strangulation (jiao) and decapitation (zhan), where the former was regarded as the more lenient form of punishment as the delinquent would be spared the humiliation of dismemberment, which violated Confucian concepts of filial piety. This schematic division of punishments, which would remain in force for most of China’s imperial history, was subject to different modifications and commutations. For instance, some physical punishments were subject to certain kinds of reductions, and certain groups, such as minors and senior citizens, were able to substitute corporal punishment with monetary redemption. Furthermore, criminals who voluntarily submitted to the authorities (zì shou) were punished more leniently as long as their crimes did not belong to the ‘ten abominations’ (shí’è), a series of crimes of a certain heinous nature, such as sedition, rebellion, or parricide. The idea that one should receive a more lenient punishment as a result of voluntary confession is still prevalent in many East Asian countries (Ricket, 1971). A core feature of Chinese legal procedure was the centrality of confessions and other types of written evidence, as opposed to other forms of technical evidence. Although the Chinese legal order had developed a relatively sophisticated forensic science, which purported to be able to identify different causes of death (Song and McKnight, 1981), the central piece of any criminal case was a confession of guilt on the part of the accused, who in principle could not be convicted without his own admission of culpability. Consequently, the Chinese legal system permitted a certain use of torture and other means of coercion in order to obtain correct confessions. At the same time, the risk of extracting false confessions under duress was recognized and magistrates who abused torture and punished innocent people were subject to disciplinary and criminal sanctions. Intimately tied to the importance of written evidence was an ‘appellate system’ of justice, which took shape during the Tang dynasty, according to which severe criminal sentences had to be reviewed and sanctioned by higher instances in the bureaucracy, sometimes by the emperor himself, in order to have legal force (Bodde and Morris, 1967). Another characteristic of the Sui-Tang bureaucracy was the introduction of a rigorous examination system, which selected aspiring officials on the basis of their proficiency in the Confucian classics, and the rule of avoidance, which laid down that local officials could not serve in their native province. Both of these measures were designed to provide an imperial check on the great aristocratic families, which were centered on the dynastic capital of Chang’an (present Xi’an), and were in all likelihood
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imperfectly implemented, but they did provide the basis of an idealized meritocratic ideology, which would gain in strength and influence in subsequent dynasties. The Sui-Tang legal order had a formative impact on the legal orders of many of China’s neighbors. For instance, the Taika reforms of 645 and the introduction of the Ritsury o system in 701 were two programs that set out to centralize imperial power according to Chinese patterns of law and governance; however, the weakening of the central authority in Japan led to the emergence of a feudal order by the twelfth century, under which the imperial court in Kyoto was largely incapable of asserting its political and legal influence over local territorial warlords, who had taken power in the provinces. This state of affairs paved the way for a legal order with a large degree of local diversity. The Tang dynasty reached its apogee in the mid-ninth century and finally collapsed in 907, but its legal system and institutions enjoyed a high stature, not only in China proper, but also in East Asia, and both Japan and Korea adopted the Tang Code as a model, although both polities retained many native institutions as well. In China itself, the Tang Code became the basis for most subsequent penal codes, with the exception of the unapologetically alien Yuan Dynasty (1271– 1368). The Song dynasty (960–1279) inherited many of the codes and legal institutions of the Tang state, but the coherence of the legal system was encumbered by a proliferation of different types of laws, such as the Code itself, edicts, law compilations, and precedents. From the Song dynasty, we also have the first extant case collections, which have provided scholars with valuable insights on how the legal order operated in practice (McKnight and Liu, 1999). The transition from the Tang to the Song dynasty is notable as it marks the final demise of the great aristocratic families, which had dominated politics and court life during the period of division, and the emergence of local elites, which competed for government service in the examination system. The short-lived Yuan dynasty represents one the sharpest ruptures in Chinese legal history and the relative paucity of extant primary sources has made it difficult to study the legal system of the dynasty in detail. While the Mongol rulers did rely on some Chinese institutions and issued administrative laws on a Chinese pattern, they were not beholden to the Confucian tradition and chose not to adopt a single written Chinese code to administer their empire, but relied on different sources of law such as imperial edicts and Mongol customary law. The Mongols practiced legal pluralism rather aggressively and divided the population in their Chinese empire into four different categories, namely, Mongols, Central Asians (sèmù rén), Northern Chinese, and Southern Chinese, in descending order of status. Each group was subject to different laws and jurisdictions, and conflicts between different groups were resolved through joint conferences between officials holding jurisdiction (Ch’en, 1979).
The Late Imperial Age The establishment of the Ming Dynasty in 1368 represented a restoration of Han Chinese rule over the territories of China proper and the founder of the dynasty, Zhu Yuanzhang, created legal and political institutions modeled on the Tang
Dynasty to justify his regime as a restoration of a Confucian form of government. The central piece of this legal order was the Ming Code, which was a reorganized version of the Tang Code and reached its final form in 1397. Just like its precur€ sors, The Ming Code (Dà Míng l u) was a criminal code and the € statutes (l u) were divided into six major sections that corresponded to the Six Boards (Liù bù) in the central government: personnel, family and revenue, rituals, military affairs, and criminal affairs. In keeping with the tendency to enshrine Confucian ethics through penal sanction, Ming legislators took filial piety (xiào) and other Confucian family very seriously and they made a point in abolishing some Mongol practices that were repugnant to Orthodox Confucians, such as levirate (compulsory marriage of a widow to a brother of her deceased husband), which violated the Confucian family system. Violent crimes were seen as more severe the closer the criminal was related to the victim and the more junior he or she was compared to the victim. The opposite principle was at work when it came to property crimes (Jiang, 2005: lxxiilxxiii). Yet at the same time, the Ming penal order preserved certain elements of earlier legal orders, such as the notorious punishment of ‘slow slicing’ or ‘death by a thousand cuts’ (língchí), which was an unorthodox punishment of unclear origins used for crimes against the state and grave transgressions against the family (Brook et al., 2008). Under Ming, the Chinese legal order reached new heights of centralization and during the dynasty the principle that all capital cases should have imperial sanction was established. In contrast to earlier dynasties such as the Song, the Ming Dynasty used law as an educational tool; trials were in principle open to the public and the Ming Code and other legal manuals were available for purchase to those who could afford them. Crime fiction also became a distinct genre during the Ming Dynasty, which also disseminated knowledge about the legal system among the reading public (Farmer, 1995) The Ming Code exercised considerable influence on the legal systems of China’s neighboring countries, most notably Korea. The Chos on dynasty (1392–1910) used the Ming Code as its basic criminal code until the late nineteenth century and built its own legal order on the basis of the Ming system of government. The Chos on kings also introduced important modifications to Ming laws and institutions so as to accommodate the rather stratified Korean social order, where slavery and other forms of bondage were more prevalent than in China and where the hereditary yangban class exercised a much stronger influence than the Chinese scholar-gentry ever was capable of attaining (Hahm, 1967). In 1644, the Ming dynasty fell to domestic rebellion and the Tungus Manchu people conquered China proper and established their Qing dynasty (1636–1912) in Beijing, proceeding to build a vast polyethnic empire that reached its apogee in the late eighteenth century. Because of the regional, social, and ethnic diversity of the Qing Empire, the Manchu emperors maintained a plural legal order, where different ethnic groups often were subject to different laws and jurisdictions. In the provinces that had been conquered from the Ming dynasty, the Manchus preserved and developed the Ming legal and political system; the legal system in Manchuria was modeled on the Ming system of law with important modifications, but was administered separately from China
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proper. In Inner and Outer Mongolia, the Qing court applied a separate legal code for Mongols, which was a fusion of Mongol and Chinese legal norms, and in Xinjiang a mixture of Chinese law and Moslem law prevailed, administered jointly by Manchu officials and local headmen. The vast Tibetan territories of the Qing Empire, which constituted roughly a quarter of its area, were mostly subject to a theocratic legal system strongly infused with Buddhist thought and practices, which was only partially under Chinese influences. Finally, the ruling caste of the Manchus and other allied groups were technically subject to the Qing Code, but were enrolled in the Eight Banners (Ba qí), a social and military organization that constituted largely its own legal sphere, centered on Beijing and the banner garrison that had been stationed at strategic locations in the empire. Consequently, the Qing Empire was in many ways a continuation of previous ‘conquest dynasties’ that had ruled a part or the whole of China, such as the Liao (907–1125), Jin (1115–1234), and Yuan Empires. The full complexity of these plural legal orders has yet to be comprehensively explored by historians. € The Qing Code (Dà Qıng l ulì), which was first adopted in 1646 and reached its mature form in 1740, is often incorrectly presented as a mere extension of the Ming Code. While it is true that the first version of the Qing Code was largely identical to its Ming counterpart, the Qing government supplemented and modified the Ming criminal statutes with numerous substatutes (lì), which took precedence over statutes whenever there was a conflict between the two forms of law. Many of these substatutes emerged from imperial edicts and rulings in case law, which produced the need to modify the code. These constant revisions of the law spawned a huge commentarial literature as well as legal handbooks, which were produced to assist local magistrates in reaching correct verdicts and were available to anyone who could read. During the Qing dynasty, as in previous dynasties, there was no division of power within the legal process and no separate legal profession emerged as a result of the expansion of the legal system. Quite the contrary, it was illegal for commoners to advise strangers in legal matters, as this conflicted with the Confucian ideal of the legal system being the last resort to resolve conflicts. The Qing dynasty is the only imperial Chinese regime that has left behind a large corpus of archival material, and following the opening of archives in mainland China and in Taiwan in the 1980s and 1990s, historians have been able to study the operation of the legal system in detail, from the magistrates’ chancelleries in the roughly 1300 counties in China proper, to the ministries in the central government. We now know that ordinary Chinese were far more likely to resort to legal action than was previously thought and scholars have also found that magistrates were often called upon to adjudicate disputes of a private and commercial nature (Huang, 1996), but it remains a moot point whether the Qing legal order produced any functional counterpart to the system of private law in early modern Europe (Bourgon, 2002). Suffice it to say that the concept of ‘law’ in Qing China remained largely a penal concept and the dynasty did not promulgate any legal code to regulate private and commercial disputes until the early twentieth century. Unlike the Korean legal order, which had been under heavy Chinese influence for millennia and had copied Chinese legal
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codes almost verbatim, Japan was never fully part of the Chinese tributary order and Japanese lawmakers were much freer to choose what aspects of Chinese legal culture they wanted to adopt as their own. Furthermore, Confucianism did not exercise the same ideological hegemony in Japan as it did in China and Korea, but had to contend with other schools of thought such as Buddhism and Shint o, both of which exercised a strong counterweight to any efforts to Confucianize Japan. Following the collapse of central imperial authority in Japan in the twelfth century and the emergence of a feudal political system centered on the warrior aristocracy, the legal system in Japan became even more regionally diverse and fragmented than on the Asian mainland. When the Tokugawa Shogunate established its hegemony over the Japanese archipelago in the early seventeenth century, the new rulers created a legal and political order where local territorial lords were integrated into what has been called a system of ‘centralized feudalism’ and the emperor in Kyoto retained his sacral and ritual authority under strict shogunal supervision. A central feature of the Tokugawa legal system was the regulation of the four major status groups – samurai, peasants, artisans, and merchants – which were subject to different laws and jurisdictions are were not encouraged to interact on a daily level so as to prevent cross-jurisdictional crimes from occurring. The status system was further complicated by the fact that every domain maintained its own version of the status system and legal cases involving more than one status group and more than one jurisdiction could lead to intricate legal cases, where shogunal officials from the shogunate were called upon to formulate a verdict. The dominant Tokugawa house, which directly controlled more than 40% of the four main islands of Japan, exercised a strong regulatory and normative influence on the domanial lords, but it refrained from interfering in their internal autonomy or legal affairs. The Tokugawa legal system relied on a number of different sources of laws, such as the ancient Ritsury o system, shogunal edicts, case precedents, and legal reasoning (Henderson, 1965). The shogunate did not elaborate a single legal code for Japan, but promulgated a series of codes that regulated the affairs of the imperial court and the court nobility, the territorial lords, and a collection of verdicts in lawsuits. China remained a model when it came to the penal system, where banishment, corporeal punishment, and different forms of capital punishments formed the backbone of the Japanese penal system, supplemented by indigenous penal practices and imported ones, such as crucifixion. Just like in other states on the East Asian mainland, torture and other forms of physical pressures were used to obtain evidence and great emphasis was placed on confessions of guilt on the part of the accused. The Tokugawa state sponsored neoConfucianism as a state ideology with increasing zeal and as part of these endeavors, Japanese Sinologists were employed to draft new legal codes based on the Tang and Ming Codes, efforts that were emulated in many feudal domains, but none of these efforts led to any wholesale reform of the Japanese legal order. Furthermore, in contrast to the contemporary Qing dynasty, laws were not made public and trials were usually held in camera, which meant that commoners could only learn about the law indirectly through publicly posted verdicts (kosatsu).
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Modern Transformations Following the arrival of modern gunboats to the Western Pacific and the resulting conclusion of commercial treaties in the midnineteenth century, East Asian legal traditions were challenged for the first time by Western legal norms, in both their continental European and Anglo-Saxon varieties. Unwilling to submit themselves to what they regarded as barbarous and uncivilized systems of justice, the Western treaty powers forced their reluctant hosts to accept the practice of extraterritoriality, which put most foreigners outside of local laws and jurisdiction. The East Asian polities did not initially contest extraterritoriality in a systematic way, as many of them already possessed multiple legal codes and complex institutions for the adjudication of disputes between different social and ethnic groups. But when East Asian states embarked on nation-building projects that aspired to build militarily and economically strong states with an actively participating citizenry, extraterritoriality was increasingly perceived as an obstacle to those projects. The first country to challenge the new framework of trade and diplomacy, often called the ‘treaty port system,’ was Japan, where a group of domains toppled the shogunate in 1867–68 and established the Meiji Emperor as the figurehead of a centralized nation state in the new capital of Tokyo. Realizing that the Western imperial powers would not agree to any revision of the commercial treaties or to the abolition of extraterritoriality without corresponding changes in the Japanese legal system, the oligarchs of the Meiji state embarked on an ambitious program to reform their legal and penal system to conform to contemporary Western standards. While early Japanese legal reformers initially drew on early attempts to reform the legal system along Chinese lines, these efforts were soon cast aside in favor of a wholesale legal and institutional reform, which left discernable few traces of the old Tokugawa legal order. Even the legal language changed beyond recognition, where Chinese characters formed compounds that were used to convey new legal concepts borrowed from the West. Reforming the criminal code, the judiciary, and the penal system did not present an insurmountable obstacle to Japanese legal reformers, but the promulgation of a civil code on a continental European model did meet considerable resistance from conservative elements within the Japanese government, who feared that continental European civil codes would undermine the ‘national polity’ (kokutai) of Japan. By the mid1890s, the complete overhaul of the Japanese legal system was accomplished and, starting with Britain, most Western nations agreed to renegotiate the ‘unequal treaties’ and abolish extraterritoriality. Qing China and Chos on Korea proved to be more resistant to foreign incursions into their legal and political orders. Although China was soundly defeated in a number of armed confrontations with the West, the first concerted attempt to reform the legal and political order did not take place until after the defeat in the First Sino-Japanese war 1894–95 and the Boxer War 1900, when the Qing government set out to abolish the old civil service, reform the administration of justice, abolish torture and physical punishments, and introduce criminal, civil, commercial, and administrative codes on Western and Japanese models. Although these reforms seemed
promising, the Qing dynasty fell in 1911 and subsequent legal reforms had to be undertaken in a less stable political order that was plagued by civil war and foreign aggression. By the time the Republic of China had introduced a draft constitution and Six Codes, China was invaded by Japan in 1937 and the abolition of extraterritoriality in 1943 was more a product of great power rivalry than of legal reform. Korea was even less fortunate than China in that it soon fell prey to Japanese colonization and was annexed into the Empire of Japan in 1910, which meant that Korea’s legal modernization took place under colonial conditions (Kim, 2012). Following the end of World War Two and decolonization, East Asian nations went their separate paths, depending on which camp they had joined in the Cold War. The People’s Republic of China and North Korea adopted Soviet-inspired legal institutions and codes, whereas Japan, Taiwan, and South Korea continued to draw on European and American models for legal reform. Economic reform in Mainland China after 1978 led to a second wave of legal reform, where the Beijing regime embarked on ambitious attempts at codification that are still underway. Today, very few formal traces of the East Asian legal tradition remain in either of these polities and it remains a moot point to what extent Confucianism, for instance, is still a relevant source of legal norms in East Asia. Yet recent advances in East Asian legal history have reopened several important questions on what constitutes a contemporary East Asian legal tradition and the economic rise of East Asia in general and China in particular will ensure that this discussion will be of perennial significance.
See also: Constitutionalism, Comparative; Law: Change and Evolution; Legal Pluralism; Legal Systems, Classification of; Postcolonial Law; Religions of East Asia.
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Hulsewé, A.F.P., 1955. Remnants of Han Law. Sinica Leidensia series. E.J. Brill, Leiden. Jiang, Y. (Ed.), 2005. The Great Ming Code: Da Ming Lü. University of Washington Press, Seattle, WA. Johnson, W.S. (Ed.), 1979. The T’ang Code. Princeton University Press, Princeton, NJ. Kim, M.S.-H., 2012. Law and Custom in Korea: Comparative Legal History. Cambridge University Press, Cambridge, UK; New York. McKnight, B.E., Liu, J.T.C. (Eds.), 1999. The Enlightened Judgments: Ch’ingming Chi: The Sung Dynasty Collection. State University of New York Press, Albany.
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Ricket, W.A., 1971. Voluntary surrender and confession in traditional chinese law: the problem of continuity. Journal of Asian Studies 30, 797–814. Schwartz, B.I., 1985. The World of Thought in Ancient China. Belknap Press of Harvard University Press, Cambridge, MA. Song, C., McKnight, B.E., 1981. The Washing Away of Wrongs: Forensic Medicine in Thirteenth-century China. Center for Chinese Studies, University of Michigan, Ann Arbor.
Abstract Most East Asian legal traditions were heavily influenced by Chinese thought and statecraft, which can be traced back at least 3000 years. Confucianism, which made familial duties a central feature of all social obligations, had a formative impact on both the Chinese and the Korean legal orders. Japan was also heavily influenced by the Chinese legal system, but was more selective in its adoption of those models, because of the fragmented nature of the Japanese political order. Beginning in the late nineteenth century, East Asia came under heavy Western influence and all legal systems were ultimately reformed on Western models, leaving few formal traces of the previous legal order.
With a recorded history of more than 3000 years, the legal orders in China proper have exercised a major influence not only on its neighbors, especially Korea, Vietnam, Ry uky u, and Japan, but also on a number of ‘conquest dynasties’ that ruled parts of traditional Chinese territories or controlled areas contiguous to China proper. Practically everything we know about the early states that existed in proximity to the Chinese dynasties has been handed down to us through the medium of classical Chinese, and East Asian rulers took the ideal of the Han (206 BC–AD 220) and Tang (618–907) dynasties at the height of their power as the purest expression of an idealized Confucian order. Therefore, any inquiry into East Asian legal traditions has to begin with a discussion of the legal orders that developed in China proper from the first millennium BCE. At the same time, we have to be cognizant of the fact that the uniformity of the written Chinese language, which was the preferred idiom of Chinese dynasties and many non-Chinese states, often masks the realities of societies that were regionally, ethnically, and socially diverse, and subject to significant change over time. Consequently, no claims of a continuous and unbroken East Asian legal tradition harking back to Chinese antiquity should be taken at face value.
The Great Tradition Very little is known about the legal order in preimperial China, but fragments of laws from the western Zhou dynasty (1050– 771 BCE) have survived in bronze inscriptions and historical chronicles. One of the earliest historical records on the early Chinese legal order is found in the chapter ‘The Punishments of Lü’ in the canonical historical work Book of Documents (Shàngsh u), which outlined some early laws and the classical form of the ‘Five Punishments’ (w u xing). It is unclear whether the original five punishments were ever practiced, but in their classical iteration, they included ‘tattooing of the face’ (mò), ‘cutting off the nose’ (yì), ‘cutting off the feet’ (yuè), ‘castration’ (gong), and ‘decapitation’ (dàpì). It is not clear if any single code existed during the Zhou dynasty, but there is ample evidence that laws were recorded on bronzes during the Chinese antiquity. At a very early stage, Chinese thinkers seem to have regarded legal action, litigation, and punishment as signs of failure on the part of the sovereign’s ability to exercise a moral influence on its subjects to abstain from criminal and other
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asocial acts. Thus, it is not surprising that the introduction of penal law is attributed to the non-Chinese and according to the Book of Documents, the five punishments were handed down from non-Chinese peoples, such as the Miao People in what is today southwest China (Creel, 1970). The eastern Zhou dynasty (770–256 BC) witnessed the weakening of central royal authority and the relative strengthening of the Zhou vassals, who emerged on ambitious projects of state building and availed themselves of the advice from a new class of literati. During the Spring and Autumn (770–476 BC) and Warring States (475–403 BCE) periods, a number of contending schools of statecraft emerged, many of which claimed to have answers on how to best use law and punishment to create strong and prosperous states. The two most successful schools were the Confucian and Legalist schools of thought. Very much in line with earlier trends in Chinese thought, the Confucian school argued that the family was a microcosm of the state and that a just ruler should govern by providing good example to his subjects by maintaining the Confucian family system and rituals, which were supposedly perfected by the sage kings of the Xia, Shang, and Zhou dynasties. Confucians saw laws and punishments only as a last resort and warned that excessive use of punishments would only make people into fawners who did not internalize the positive norms of the Confucian order:
Guide them by edicts, keep them in line with punishments, and the common people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with the rites, and they will, besides having a sense shame, reform themselves. Confucius, 1979: 63
Confucians also assumed that common people would harbor a higher sense of loyalty toward their family than to the state, and Confucius explicitly approved of family members covering up each others’ crimes (Confucius, 1979: 121). The Legalist school did not disfavor familial duties per se, but it argued that a strong and prosperous kingdom could only be maintained if the ruler applied strict and predictable rewards and punishments, which would produce politically obedient and economically productive subjects. In contrast to the Confucians, who idealized the early feudal Zhou state and denounced vassals who proclaimed themselves kings as
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usurpers, the Legalists wanted to establish a centralized and militarized state that imposed heavy obligations on its subjects. They saw law as an extension of administrative power and regarded rewards (shang) and strict punishments (fá) as central tools of a ‘behavioral science’ that would produce law-abiding and productive subjects who would render loyal service to the state (Schwartz, 1985). Indeed, the Chinese term for legalist (fajia) can be translated as both the ‘school of law’ and the ‘school of methods.’ The legalists also advocated that all laws should be equally applied to all subjects of the state, regardless of social status, with the notable exception of the sovereign himself. The King of Qin, Ying Zheng (260–10 BC), was one of the most prominent patrons of the legalist schools and when he established himself as hegemon of China proper and the First Emperor of Qin in 220 BC, the Legalist school scored an early victory against the Confucians and participated in the building of a strong state where centrally controlled counties and prefectures replaced the old territorial states of the Zhou vassals. Very few fragments of Qin Law have survived to this day and the Qin dynasty did not survive the death of the first emperor by many years; when Liu Bang (256/247–195 BC) established the Han dynasty in 206 BC, he not only preserved the centralized state structure of the previous dynasty and many of its legal institutions, but also set out to restore the status of Confucianism as the central doctrine of the state. One product of this endeavor was what the legal historian Chü T’ung-tsu dubbed the ‘Confucianization of law,’ that is, the ambition to enforce Confucian norms and family hierarchies through penal means, an idea that probably would not have appealed to the founders of the Confucian school, yet this set the pattern for most subsequent imperial dynasties (Ch’ü, 1965; Goldin, 2012). The Han Code itself has only survived in fragments and scholars have had to resort to careful reconstruction in order to provide a full picture (Hulsewé, 1955). After the fall of the Han dynasty in 220 AD, China was divided into a number of competing dynasties that contended for hegemony over the central plains and only periodically unified under a centralized state. In order to bolster their claim to legitimacy, the contending states maintained many of the institutions that harkened back to the Han dynasties, but this often covered up political realities that failed to live up to the meritocratic and Confucian ethos of the Han Dynasty (Hucker, 1985: 17).
China and East Asian Legal Orders during the Middle Period The short-lived Sui dynasty (581–618) unified China and promulgated a penal code shortly after its ascension to supremacy, but the original text of the code disappeared when the dynasty crumbled and is no longer extant. However, most of the Code survived, as the subsequent Tang dynasty (618– 907) based its 653 penal code on the Sui Code. The Tang Code, which consisted of 501 articles and was divided into 12 thematic sections, is the earliest legal code that has survived in its entirety. Practically all laws in the Tang Code were of a penal character and there was no separate code regulating private relations. The law was hierarchic in nature and the
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much-vaunted ‘Confucianization of law’ was manifested in the fact that criminals, when found guilty, were sentenced in accordance with their status in the Confucian family system, defined by the ‘Five mourning degrees’ (w u fú). Another expression of both Confucian hierarchies and the aristocratic nature of Tang society was the ‘Eight deliberations’ (ba yì), which provided for various forms of special treatment for status groups, such as the imperial house and virtuous officials (Johnson, 1979). In the Tang Code, the five punishments were redefined as ‘caning with light stick’ (chı), ‘caning with heavy stick’ (zhàng), ‘penal servitude’ (tú), ‘life exile’ (liú), ‘military exile’ (chongj un), and ‘capital punishment’ (sı). Capital punishment was divided into two categories, strangulation (jiao) and decapitation (zhan), where the former was regarded as the more lenient form of punishment as the delinquent would be spared the humiliation of dismemberment, which violated Confucian concepts of filial piety. This schematic division of punishments, which would remain in force for most of China’s imperial history, was subject to different modifications and commutations. For instance, some physical punishments were subject to certain kinds of reductions, and certain groups, such as minors and senior citizens, were able to substitute corporal punishment with monetary redemption. Furthermore, criminals who voluntarily submitted to the authorities (zì shou) were punished more leniently as long as their crimes did not belong to the ‘ten abominations’ (shí’è), a series of crimes of a certain heinous nature, such as sedition, rebellion, or parricide. The idea that one should receive a more lenient punishment as a result of voluntary confession is still prevalent in many East Asian countries (Ricket, 1971). A core feature of Chinese legal procedure was the centrality of confessions and other types of written evidence, as opposed to other forms of technical evidence. Although the Chinese legal order had developed a relatively sophisticated forensic science, which purported to be able to identify different causes of death (Song and McKnight, 1981), the central piece of any criminal case was a confession of guilt on the part of the accused, who in principle could not be convicted without his own admission of culpability. Consequently, the Chinese legal system permitted a certain use of torture and other means of coercion in order to obtain correct confessions. At the same time, the risk of extracting false confessions under duress was recognized and magistrates who abused torture and punished innocent people were subject to disciplinary and criminal sanctions. Intimately tied to the importance of written evidence was an ‘appellate system’ of justice, which took shape during the Tang dynasty, according to which severe criminal sentences had to be reviewed and sanctioned by higher instances in the bureaucracy, sometimes by the emperor himself, in order to have legal force (Bodde and Morris, 1967). Another characteristic of the Sui-Tang bureaucracy was the introduction of a rigorous examination system, which selected aspiring officials on the basis of their proficiency in the Confucian classics, and the rule of avoidance, which laid down that local officials could not serve in their native province. Both of these measures were designed to provide an imperial check on the great aristocratic families, which were centered on the dynastic capital of Chang’an (present Xi’an), and were in all likelihood
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imperfectly implemented, but they did provide the basis of an idealized meritocratic ideology, which would gain in strength and influence in subsequent dynasties. The Sui-Tang legal order had a formative impact on the legal orders of many of China’s neighbors. For instance, the Taika reforms of 645 and the introduction of the Ritsury o system in 701 were two programs that set out to centralize imperial power according to Chinese patterns of law and governance; however, the weakening of the central authority in Japan led to the emergence of a feudal order by the twelfth century, under which the imperial court in Kyoto was largely incapable of asserting its political and legal influence over local territorial warlords, who had taken power in the provinces. This state of affairs paved the way for a legal order with a large degree of local diversity. The Tang dynasty reached its apogee in the mid-ninth century and finally collapsed in 907, but its legal system and institutions enjoyed a high stature, not only in China proper, but also in East Asia, and both Japan and Korea adopted the Tang Code as a model, although both polities retained many native institutions as well. In China itself, the Tang Code became the basis for most subsequent penal codes, with the exception of the unapologetically alien Yuan Dynasty (1271– 1368). The Song dynasty (960–1279) inherited many of the codes and legal institutions of the Tang state, but the coherence of the legal system was encumbered by a proliferation of different types of laws, such as the Code itself, edicts, law compilations, and precedents. From the Song dynasty, we also have the first extant case collections, which have provided scholars with valuable insights on how the legal order operated in practice (McKnight and Liu, 1999). The transition from the Tang to the Song dynasty is notable as it marks the final demise of the great aristocratic families, which had dominated politics and court life during the period of division, and the emergence of local elites, which competed for government service in the examination system. The short-lived Yuan dynasty represents one the sharpest ruptures in Chinese legal history and the relative paucity of extant primary sources has made it difficult to study the legal system of the dynasty in detail. While the Mongol rulers did rely on some Chinese institutions and issued administrative laws on a Chinese pattern, they were not beholden to the Confucian tradition and chose not to adopt a single written Chinese code to administer their empire, but relied on different sources of law such as imperial edicts and Mongol customary law. The Mongols practiced legal pluralism rather aggressively and divided the population in their Chinese empire into four different categories, namely, Mongols, Central Asians (sèmù rén), Northern Chinese, and Southern Chinese, in descending order of status. Each group was subject to different laws and jurisdictions, and conflicts between different groups were resolved through joint conferences between officials holding jurisdiction (Ch’en, 1979).
The Late Imperial Age The establishment of the Ming Dynasty in 1368 represented a restoration of Han Chinese rule over the territories of China proper and the founder of the dynasty, Zhu Yuanzhang, created legal and political institutions modeled on the Tang
Dynasty to justify his regime as a restoration of a Confucian form of government. The central piece of this legal order was the Ming Code, which was a reorganized version of the Tang Code and reached its final form in 1397. Just like its precur€ sors, The Ming Code (Dà Míng l u) was a criminal code and the € statutes (l u) were divided into six major sections that corresponded to the Six Boards (Liù bù) in the central government: personnel, family and revenue, rituals, military affairs, and criminal affairs. In keeping with the tendency to enshrine Confucian ethics through penal sanction, Ming legislators took filial piety (xiào) and other Confucian family very seriously and they made a point in abolishing some Mongol practices that were repugnant to Orthodox Confucians, such as levirate (compulsory marriage of a widow to a brother of her deceased husband), which violated the Confucian family system. Violent crimes were seen as more severe the closer the criminal was related to the victim and the more junior he or she was compared to the victim. The opposite principle was at work when it came to property crimes (Jiang, 2005: lxxiilxxiii). Yet at the same time, the Ming penal order preserved certain elements of earlier legal orders, such as the notorious punishment of ‘slow slicing’ or ‘death by a thousand cuts’ (língchí), which was an unorthodox punishment of unclear origins used for crimes against the state and grave transgressions against the family (Brook et al., 2008). Under Ming, the Chinese legal order reached new heights of centralization and during the dynasty the principle that all capital cases should have imperial sanction was established. In contrast to earlier dynasties such as the Song, the Ming Dynasty used law as an educational tool; trials were in principle open to the public and the Ming Code and other legal manuals were available for purchase to those who could afford them. Crime fiction also became a distinct genre during the Ming Dynasty, which also disseminated knowledge about the legal system among the reading public (Farmer, 1995) The Ming Code exercised considerable influence on the legal systems of China’s neighboring countries, most notably Korea. The Chos on dynasty (1392–1910) used the Ming Code as its basic criminal code until the late nineteenth century and built its own legal order on the basis of the Ming system of government. The Chos on kings also introduced important modifications to Ming laws and institutions so as to accommodate the rather stratified Korean social order, where slavery and other forms of bondage were more prevalent than in China and where the hereditary yangban class exercised a much stronger influence than the Chinese scholar-gentry ever was capable of attaining (Hahm, 1967). In 1644, the Ming dynasty fell to domestic rebellion and the Tungus Manchu people conquered China proper and established their Qing dynasty (1636–1912) in Beijing, proceeding to build a vast polyethnic empire that reached its apogee in the late eighteenth century. Because of the regional, social, and ethnic diversity of the Qing Empire, the Manchu emperors maintained a plural legal order, where different ethnic groups often were subject to different laws and jurisdictions. In the provinces that had been conquered from the Ming dynasty, the Manchus preserved and developed the Ming legal and political system; the legal system in Manchuria was modeled on the Ming system of law with important modifications, but was administered separately from China
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proper. In Inner and Outer Mongolia, the Qing court applied a separate legal code for Mongols, which was a fusion of Mongol and Chinese legal norms, and in Xinjiang a mixture of Chinese law and Moslem law prevailed, administered jointly by Manchu officials and local headmen. The vast Tibetan territories of the Qing Empire, which constituted roughly a quarter of its area, were mostly subject to a theocratic legal system strongly infused with Buddhist thought and practices, which was only partially under Chinese influences. Finally, the ruling caste of the Manchus and other allied groups were technically subject to the Qing Code, but were enrolled in the Eight Banners (Ba qí), a social and military organization that constituted largely its own legal sphere, centered on Beijing and the banner garrison that had been stationed at strategic locations in the empire. Consequently, the Qing Empire was in many ways a continuation of previous ‘conquest dynasties’ that had ruled a part or the whole of China, such as the Liao (907–1125), Jin (1115–1234), and Yuan Empires. The full complexity of these plural legal orders has yet to be comprehensively explored by historians. € The Qing Code (Dà Qıng l ulì), which was first adopted in 1646 and reached its mature form in 1740, is often incorrectly presented as a mere extension of the Ming Code. While it is true that the first version of the Qing Code was largely identical to its Ming counterpart, the Qing government supplemented and modified the Ming criminal statutes with numerous substatutes (lì), which took precedence over statutes whenever there was a conflict between the two forms of law. Many of these substatutes emerged from imperial edicts and rulings in case law, which produced the need to modify the code. These constant revisions of the law spawned a huge commentarial literature as well as legal handbooks, which were produced to assist local magistrates in reaching correct verdicts and were available to anyone who could read. During the Qing dynasty, as in previous dynasties, there was no division of power within the legal process and no separate legal profession emerged as a result of the expansion of the legal system. Quite the contrary, it was illegal for commoners to advise strangers in legal matters, as this conflicted with the Confucian ideal of the legal system being the last resort to resolve conflicts. The Qing dynasty is the only imperial Chinese regime that has left behind a large corpus of archival material, and following the opening of archives in mainland China and in Taiwan in the 1980s and 1990s, historians have been able to study the operation of the legal system in detail, from the magistrates’ chancelleries in the roughly 1300 counties in China proper, to the ministries in the central government. We now know that ordinary Chinese were far more likely to resort to legal action than was previously thought and scholars have also found that magistrates were often called upon to adjudicate disputes of a private and commercial nature (Huang, 1996), but it remains a moot point whether the Qing legal order produced any functional counterpart to the system of private law in early modern Europe (Bourgon, 2002). Suffice it to say that the concept of ‘law’ in Qing China remained largely a penal concept and the dynasty did not promulgate any legal code to regulate private and commercial disputes until the early twentieth century. Unlike the Korean legal order, which had been under heavy Chinese influence for millennia and had copied Chinese legal
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codes almost verbatim, Japan was never fully part of the Chinese tributary order and Japanese lawmakers were much freer to choose what aspects of Chinese legal culture they wanted to adopt as their own. Furthermore, Confucianism did not exercise the same ideological hegemony in Japan as it did in China and Korea, but had to contend with other schools of thought such as Buddhism and Shint o, both of which exercised a strong counterweight to any efforts to Confucianize Japan. Following the collapse of central imperial authority in Japan in the twelfth century and the emergence of a feudal political system centered on the warrior aristocracy, the legal system in Japan became even more regionally diverse and fragmented than on the Asian mainland. When the Tokugawa Shogunate established its hegemony over the Japanese archipelago in the early seventeenth century, the new rulers created a legal and political order where local territorial lords were integrated into what has been called a system of ‘centralized feudalism’ and the emperor in Kyoto retained his sacral and ritual authority under strict shogunal supervision. A central feature of the Tokugawa legal system was the regulation of the four major status groups – samurai, peasants, artisans, and merchants – which were subject to different laws and jurisdictions are were not encouraged to interact on a daily level so as to prevent cross-jurisdictional crimes from occurring. The status system was further complicated by the fact that every domain maintained its own version of the status system and legal cases involving more than one status group and more than one jurisdiction could lead to intricate legal cases, where shogunal officials from the shogunate were called upon to formulate a verdict. The dominant Tokugawa house, which directly controlled more than 40% of the four main islands of Japan, exercised a strong regulatory and normative influence on the domanial lords, but it refrained from interfering in their internal autonomy or legal affairs. The Tokugawa legal system relied on a number of different sources of laws, such as the ancient Ritsury o system, shogunal edicts, case precedents, and legal reasoning (Henderson, 1965). The shogunate did not elaborate a single legal code for Japan, but promulgated a series of codes that regulated the affairs of the imperial court and the court nobility, the territorial lords, and a collection of verdicts in lawsuits. China remained a model when it came to the penal system, where banishment, corporeal punishment, and different forms of capital punishments formed the backbone of the Japanese penal system, supplemented by indigenous penal practices and imported ones, such as crucifixion. Just like in other states on the East Asian mainland, torture and other forms of physical pressures were used to obtain evidence and great emphasis was placed on confessions of guilt on the part of the accused. The Tokugawa state sponsored neoConfucianism as a state ideology with increasing zeal and as part of these endeavors, Japanese Sinologists were employed to draft new legal codes based on the Tang and Ming Codes, efforts that were emulated in many feudal domains, but none of these efforts led to any wholesale reform of the Japanese legal order. Furthermore, in contrast to the contemporary Qing dynasty, laws were not made public and trials were usually held in camera, which meant that commoners could only learn about the law indirectly through publicly posted verdicts (kosatsu).
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Modern Transformations Following the arrival of modern gunboats to the Western Pacific and the resulting conclusion of commercial treaties in the midnineteenth century, East Asian legal traditions were challenged for the first time by Western legal norms, in both their continental European and Anglo-Saxon varieties. Unwilling to submit themselves to what they regarded as barbarous and uncivilized systems of justice, the Western treaty powers forced their reluctant hosts to accept the practice of extraterritoriality, which put most foreigners outside of local laws and jurisdiction. The East Asian polities did not initially contest extraterritoriality in a systematic way, as many of them already possessed multiple legal codes and complex institutions for the adjudication of disputes between different social and ethnic groups. But when East Asian states embarked on nation-building projects that aspired to build militarily and economically strong states with an actively participating citizenry, extraterritoriality was increasingly perceived as an obstacle to those projects. The first country to challenge the new framework of trade and diplomacy, often called the ‘treaty port system,’ was Japan, where a group of domains toppled the shogunate in 1867–68 and established the Meiji Emperor as the figurehead of a centralized nation state in the new capital of Tokyo. Realizing that the Western imperial powers would not agree to any revision of the commercial treaties or to the abolition of extraterritoriality without corresponding changes in the Japanese legal system, the oligarchs of the Meiji state embarked on an ambitious program to reform their legal and penal system to conform to contemporary Western standards. While early Japanese legal reformers initially drew on early attempts to reform the legal system along Chinese lines, these efforts were soon cast aside in favor of a wholesale legal and institutional reform, which left discernable few traces of the old Tokugawa legal order. Even the legal language changed beyond recognition, where Chinese characters formed compounds that were used to convey new legal concepts borrowed from the West. Reforming the criminal code, the judiciary, and the penal system did not present an insurmountable obstacle to Japanese legal reformers, but the promulgation of a civil code on a continental European model did meet considerable resistance from conservative elements within the Japanese government, who feared that continental European civil codes would undermine the ‘national polity’ (kokutai) of Japan. By the mid1890s, the complete overhaul of the Japanese legal system was accomplished and, starting with Britain, most Western nations agreed to renegotiate the ‘unequal treaties’ and abolish extraterritoriality. Qing China and Chos on Korea proved to be more resistant to foreign incursions into their legal and political orders. Although China was soundly defeated in a number of armed confrontations with the West, the first concerted attempt to reform the legal and political order did not take place until after the defeat in the First Sino-Japanese war 1894–95 and the Boxer War 1900, when the Qing government set out to abolish the old civil service, reform the administration of justice, abolish torture and physical punishments, and introduce criminal, civil, commercial, and administrative codes on Western and Japanese models. Although these reforms seemed
promising, the Qing dynasty fell in 1911 and subsequent legal reforms had to be undertaken in a less stable political order that was plagued by civil war and foreign aggression. By the time the Republic of China had introduced a draft constitution and Six Codes, China was invaded by Japan in 1937 and the abolition of extraterritoriality in 1943 was more a product of great power rivalry than of legal reform. Korea was even less fortunate than China in that it soon fell prey to Japanese colonization and was annexed into the Empire of Japan in 1910, which meant that Korea’s legal modernization took place under colonial conditions (Kim, 2012). Following the end of World War Two and decolonization, East Asian nations went their separate paths, depending on which camp they had joined in the Cold War. The People’s Republic of China and North Korea adopted Soviet-inspired legal institutions and codes, whereas Japan, Taiwan, and South Korea continued to draw on European and American models for legal reform. Economic reform in Mainland China after 1978 led to a second wave of legal reform, where the Beijing regime embarked on ambitious attempts at codification that are still underway. Today, very few formal traces of the East Asian legal tradition remain in either of these polities and it remains a moot point to what extent Confucianism, for instance, is still a relevant source of legal norms in East Asia. Yet recent advances in East Asian legal history have reopened several important questions on what constitutes a contemporary East Asian legal tradition and the economic rise of East Asia in general and China in particular will ensure that this discussion will be of perennial significance.
See also: Constitutionalism, Comparative; Law: Change and Evolution; Legal Pluralism; Legal Systems, Classification of; Postcolonial Law; Religions of East Asia.
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