Lecture Two:Ten Legal traditions(I): Realistic, Practical and Pragmatic

Ten Legal Traditions (III): People are the Sole Foundations of the Country and the Country Serves the People

In ancient Chinese literature, it read: “People are the foundation of the country, and the country will be safe if the foundation is firmed”. (The Book of History: Songs of the Five Sons) (Shang Shu: Wu ZiZhi Ge), which is the conclusion of historians towards the history of rise and fall at the beginning of the Xia Dynasty. After the publication of this conclusion, it has been treated as words of warning by the following governors. Once spoken of the importance of people, Emperor Zhou Gong (see picture), dating back to the beginning of the Zhou Dynasty, the great politician, and his contributions must be mentioned. He found out that the reason of the crumble of the Shang Dynasty was the loss of people’s trust. The empire cruelly harmed common people. Therefore, Emperor Zhou Gong put the focus of administration on the people and he put up forward “respecting virtues and be cautious towards penalty” (Ming De Shen Fa) (The book of history: Announcement to the Prince of Kang) (Shang Shu: Kang Gao) which means “the advocate of virtues and cautious punishment without indiscriminate slaughter of innocent people”. This idea was inherited by pre-Qin Confucianism from which the orthodox of legal culture of "morality given priority over penalty"(De Zhu Xing Fu) from the Western Han Dynasty was evolved. As a result of the strategy of protection and appreciation of people, the Zhou Dynasty witnessed a boom and stable society which last for hundreds for centuries.

The appreciation and protection of people manifested in legal field was that the law valued much of the livelihood of people which is the foundation of people’s production and life. Then how does the law safeguard the livelihood of people? It regulates the land ownership which was the most important to people since China was primarily an agricultural society and the land was the means of maintaining life. Every dynasty regulated its land by setting up land laws especially the “equal-field system”(see picture) of the Tang Dynasty which distributed land to the farmers. Once they had lands, they would survive and live a stable life which in turn would make the whole country stronger.

In order to protect the people, there were some special regulations which means that the power of execution was centralized from the Southern and Northern Dynasties (420-581). The local high-ranking officials processed no power of execution in order to show respect of human beings. In the Tang Dynasty, there was a review system before the execution including three times review(San Fu Zou )and five times review(Wu Fu Zou) (three times review was the procedure of execution of the Tang Dynasty meaning reports three times to the Emperor before the execution to ask for the permission with much caution. After the execution of Zhang Yungu and Lu Shangzu, Emperor Taizong of the Tang Dynasty regretted seriously and then ordered five times report of the capital city and three times report of other provinces) (see picture), so after the reports and reviews, the Emperor would decide whether he or she should be executed. During the Emperor Qian Long of the Qing Dynasty, he used to abolish the reports and reviews system which does not mean that he ignored the reviews of execution, on the contrary, every time he reviewed the reports (Zhao Ce) (recording the facts and confession etc.) and discussed with the officials, when there was any possibility of not execution he would let it go. So there were more than ten times reviews, not only three times or five times, paying much attention to the death penalty. Whether the death penalty is proper or not is related not only to the criminals and his families but also influence the authority of justice and the stability of the society. Therefore, Emperor Kang Xi once said that there was one thing in his life that he would never do is to decide on the execution because he needed to decide and mark on the death row which was the regulation of execution and showed the appreciation of people’s life. Towards the disadvantaged groups such as the widows， the orphans and the disabled etc., the punishment would be mitigated. For example, the women or the pregnant, they would be executed after 100 days. Some people who were more than 90 years old or under 17 years old would not be punished no matter what crime they had committed all of which showed the combination of appreciation of human life and humanitarianism of criminal law. Most of the dynasties which valued much of the people witnessed a great boom while the dynasties which ignored the livelihood of people witnessed crumbles. Therefore, the concept of “people are the foundation of the country” is very precious and practical legal tradition.