Legal institutions of Shang and Zhou

Reading:
Liu, Yongping, Origins of Chinese law, ch. 1 (file size: 2.1 Mb), ch. 4 (file size: 2.0 Mb)
Book review (see pp. 650-653 of this file)
Select texts from Shu Jing
Historical background
Shu Jing, Kang Gao
Regarding the feudal state of Wei 衛 (which was placed under the rulership of Kang Shu), see this.
Joseph Raz, The Obligation to Obey: Revision and Tradition, 1 Notre Dame J.L. Ethics & Pub. Pol’y 139 (1985).
George Christie, “On the moral obligation to obey the law” Duke Law Journal vol. 39 (1990) 1311


1. The ‘theory’ of five punishments (wu xing)

‘the people of Yin held the five punishments’ – Ban Gu, Han Shu, lie zhuan, 56, Dong Zhong Shu Zhuan.

2. Textual evidence of Shang punishments

  • If you do not obey the words which I have spoken, I will put you and your children to death; and you will find no forgiveness. – Shu Jing, Tang Shi [admonitions of king Tang of Shang addressed to the members of Shang zu].

  • With punishments, I will vanquish the evil deeds; with recompenses, I will mark the good deeds. If the country prospers, it is all due to you all; if the country perishes, it is all due to my fault (my laxity in administering punishments [fa]). – Shu Jing, Pan Geng, shang [the first part of the speech of king Pan Geng of Shang to his people].

  • According to the law of Yin, anyone who throws ashes on a public road shall have his hands cut. – Han Fei Zi, Nei Zhe Shuo, shang [the first part of the anthology of secret sayings].

3. Punishment or sacrifice?

  • Enquired: whether to yue [amputate the leg of] 10 zai?

  • Enquired: if we amputate eighty zai, will they die?

  • Enquired: if we amputate 500 zai on renxu (day 59), will it be auspicious?

4. e, pi, gong, fa,

  • ‘e means to give somebody a scolding … The radical qian signifies vicious voice’ – Shuo Wen

  • pi – a more serious and severe kind of scolding? (according to Dr Liu, 1998)

  • gong – detaining members of the king’s own zu (according to Yan Yiping, 1981)

  • fa (罰) – used to mean ‘punishments’ (including execution) in Shu Jing, Pan Geng and Kang Gao.

5. Evidence of other forms of punishment or judgement

  • fine payable in pieces of metal, banishment – Shiqi Ding

  • fine payable in plots of land, labourers, penal damages (poena) – Yao’s vessel

  • whipping, flogging, tattooing, removal from an office – Xun Ye

6. Shang society

  • zu (): gens? cf. Marcus Tullius Cicero, Gaius Julius Caesar, Marcus Licinius Crassus (nomen gentilicium)

  • zu yi (族邑)

  • zu yin (族尹)

  • zu customary law, clan law

7. Shang and its neighbours

  • Shang: a loose federation of numerous zu (clans) with blood ties

  • Fang: neighbouring “states”, with no blood tie with clans making up Shang

8. 天命靡常 (靡 =無)

  • 尙書, 湯誓 (Tang Shi) King Tang of Yin’s speech (on the occasion of attacking Jie 桀 of Xia 夏)

  • 王曰:「格爾眾庶,悉聽朕言,非台小子,敢行稱亂!有夏多罪,天命殛之。
    King said, “Come, ye multitudes of the people, listen all to my words. It is not I, the little child, who dare to undertake a rebellious enterprise; but for the many crimes of the sovereign of Xia, Heaven has given the charge to destroy him.

  • 夏氏有罪,予畏上帝,不敢不正。(the sovereign of Xia is guilty, and as I fear the emperor in Heaven, I dare not but punish him.)

  • 尚書, 泰誓 (King Wu 武王 of Zhou’s speech on the occasion of attacking Yin 殷

  • 商罪貫盈,天命誅之。予弗順天,厥罪惟鈞。The iniquity of Shang is full. Heaven gives command to destroy it. If I did not obey Heaven, my iniquity would be as great.)

  • 惟天惠民,惟辟奉天’Heaven loves the people, and the sovereign should reverently carry out (this mind of) Heaven. )

  • 古人有言曰:『撫我則后,虐我則仇。』獨夫受洪惟作威,乃汝世仇。The ancients have said, “He who soothes us is our sovereign; he who oppresses us is our enemy.” This solitary fellow Shou, having exercised great tyranny, is your perpetual enemy. )

  • 詩經, 文王
    穆穆文王、於緝熙敬止。
    Profound was king Wen; Oh! continuous and bright was his feeling of reverence.
    假哉天命、有商孫子
    Great is the appointment of Heaven! There were the descendants of [the sovereigns] of Shang; –
    商之孫子、其麗不億
    The descendants of the sovereigns of Shang, Were in number more than hundreds of thousands;
    上帝既命、侯于周服
    But when God gave the command, They became subject to Zhou.
    侯服于周、天命靡常
    They became subject to Zhou. The appointment of Heaven is not constant.

    上天之載、無聲無臭。
    The doings of High Heaven, Have neither sound nor smell.
    儀刑文王、萬邦作孚。
    Take your pattern from king Wen, And the myriad regions will repose confidence in you.(孚=信)

9. The ‘theory’ (again!) of five punishments in Zhou.

‘five kinds of pleading … five punishments … five redemption-fines … five cases of error’ — Shu Jing, Liu Xing