King Wen (文王) (Founder of Zhou 周)
Shu Jing, (Kang Gao (trans.))
1. Various views
- Themis: Divine judgment, oracle, divination
- Customary law: monopolised by priests, unwritten
- "Ancient" Code: with the advent of writing, e.g. 12 Tables (however, Qin code dates from c. 240-217 BC)
Theory of five punishments: Flat, a-historical, anachronistic view...
2. Dr Liu's suggestion
- Tribal/clan law
- Demise of zu system --> Zongfa Fengjian system
- Demise of Zongfa Fengjian system --> Li, Meng --> Qin Code
3. Zhou's conquest of Shang
- Relocation of Shang clans to Qishan
- Setting up a new capital Cheng Zhou (Luo Yang) (after suppressing the rebellion of King Wu's two brothers)
- Sending out family members to govern new territories (e.g. Kangshu, younger brother of Duke of Zhou, given a territory and 7 clans of Yin to rule)
- Living together with the "conquered" Yin clans
- Yin clans allowed to live by their customary law as long as it does not threaten Zhou rule: See Kang Gao, Jiu Gao
4. Conflict of laws, personal principle of law - from Shu Jing
waishi - affairs involving 'foreigners' [Yin people viewed by Zhou rulers]
niesi - 'peregrine praetor'?
When the `external affairs (waishi)' are presented to you, let the appropriate legal officer (niesi) deal with them according to the punishments of Yin which stand to reason. - Shu Jing, (Kang Gao (trans.))
[Duke of Zhou's advice to Kangshu about alcoholic drinks]
I tell you, you must definitely warn the ministers [Zhou people] sent out to Yin, all lords of the surrounding areas, our great officers, our administrative staff, all officers sent over there, all kinds of ceremonial staff, and certainly the ones who are in charge of ancestral ceremonies, and a fortiori, those officers who supervise agriculture and public order, that alcoholic drinks are strictly regulated. If you nevertheless receive reports of drinking parties, you must arrest them all and send them back to Zhou. I shall put them to death.
If, however, various ministers and officers of Yin origin are found intoxicated, you may not put them to death. You must instead warn and rehabilitate them so that this point becomes clear to them. - Shu Jing, Jiu Gao
5. Fengjian and disintegration of zu
- Economic growth, technological advancement
- Forced relocation, co-habitation of different clans
- Waning of the powers of clan head
- Emergence of 'family (jia, 家)' as the base unit
- Zhou Li: Clan rite, family rite
6. Feudalism in medieval Europe
`Homagium est iuris vinculum [Homage is a bond of law]' - Bracton (c. 1220-1230) trans. Thorne, ii.228.
`The bond of trust [fidelitatis connexio] arising from lordship and homage should be mutual, so that the lord owes as much to the man on account of lordship as the man owes to the lord on account of homage, save only reverance' - Glanvill (c. 1190), 9.4.
Obligatio est vinculum iuris
7. Zongfa-feudal system of Zhou and the significance of Li
Family, ancestry, sacrifice - Blood-ties elevated to the celestial order
Ceremonial re-affirmation of celestial order and family hierarchy
`Dealing with the ancestors consists in respecting the respectable; dealing with the descendants consists in loving the lovable. Dealing with the brothers and collaterals consists in uniting the family members and relations through festive occasions, clearly defining their order and distinct positions according to Li and rightness. This is all there is to the way of human-beings.' - Li Ji, Da Zhuan
Li in the context of ancestral sacrifice, court visits, marriage, capping and funeral.
Politeness? Etiquette? Good manners?
8. The rise of family ethics (孝, 弟) as political ideology
Those who commit the crime of robbing, stealing, treachery, killing, laying hands on other's goods or committing violence without fearing one's life, are to be abhorred. But the greatest evil to be abhorred all the more is lack of filial piety and brotherly love. The son who does not serve his father with respect, but greatly hurts his father's heart; the father who does not love his son, but hates him; the younger brother who does not think of Heaven's brightness, and does not respect his elder brother; the elder brother who does not have compassion for his tender younger brother, and treats him coldly and suppress him: if we do not deal with the people who commit these crimes, the law which our people have received from the Heaven will be greatly annihilated and disturbed. I say, this is why these conducts need to be constrained. They must have the punishment or execution as set down by the king Wen without pardon. - Shu Jing, Kang Gao
Rebellion of the Three Guards: Guanshu Xian (管叔鮮), Caishu Du (蔡叔度), and Huoshu Chu (霍叔處) together with Wu Geng (of Yin)
Kang Shu Feng was the Duke of Wei