This blog post examines why ancient Chinese criminal law, despite outwardly emphasizing order and moral education, failed to adequately protect innocent lives. It focuses on the structural limitations of penal administration and issues within the judicial culture.
Examining the ancient legal system, the Five Punishments (五刑) imposed on serious offenders included: tattooing characters on the forehead (墨刑), cutting off the nose, elbows, or genitals (割鼻/割肘/割陰/剜甲/剜臍), castration (剜甲), and execution (大誅). However, in exceptional cases involving pitiable circumstances or high status and merit, exile (流刑) was applied instead of the Five Punishments. Minor offenses were handled through flogging or caning. Where circumstances warranted, fines could be paid in lieu of punishment, a practice known as redemption by money (贖錢). Acts committed through negligence were not punished, requiring neither exile nor redemption. However, if a crime was committed relying on one’s background or was a repeat offense, punishment was carried out even if grounds for exile or redemption existed.
Criminal law was not the sole tool upon which previous kings entirely relied for governance, but it functioned as a means to aid in moral education, preventing the people from committing wrongdoing. Thus, inflicting bodily harm to punish evil was also, at the time, a method of governance chosen reluctantly after much deliberation. Looking at the current law, exile and forced labor are proving ineffective in deterring the wicked. However, excessively applying heavier punishments could lead to the execution of criminals who need not die, making it inappropriate. Therefore, applying corporal punishment as in the past ensures that while the body may be injured, life is preserved, and it also serves as a warning to future generations. This aligns with the intentions of the former kings and the principles of the times.
Nowadays, even murder and injury can be settled through private lawsuits, encouraging the wealthy to kill or maim others. What greater misfortune could there be for the innocent victims? And if a murderer lives comfortably in the village, how could a filial son seeking vengeance for his parents’ murderers simply stand by and watch? Strictly enforcing exile to the frontier is the way to preserve both sides. The reason ancient kings showed no mercy in executing or beheading serious criminals was that these criminals had also acted cruelly toward their victims. Though the execution of punishment may appear extremely harsh, it was in fact carrying out what was rightfully due.
Some say that in ancient times, when only the five corporal punishments existed, Emperor Shun, unable to bear their cruelty, created exile, reduction of land, flogging, and caning. If so, does this mean that even for crimes warranting flogging or caning, mutilation or disfigurement were carried out until the time of Emperor Yao? Therefore, the claim that Emperor Shun corrected the five punishments to allow commutation is incorrect. If serious crimes could be commuted merely on grounds of doubt, the wealthy would evade punishment while only the poor would suffer.
Today’s judicial institutions, misinterpreting the saying that retribution brings both misfortune and blessing, tend to apply punishment arbitrarily in pursuit of a blessed reward. How can one receive any blessing when the innocent cannot clear their wrongs, while the guilty are instead set free? This is nothing but doing evil. Today’s judges misunderstand the principle of benevolent consideration (欽恤), believing it means leniently handling crimes and allowing offenders to evade the full application of the law. Thus, those who should be executed are mostly given reduced sentences under various pretexts. Capital punishment becomes exile; exile becomes hard labor; hard labor becomes flogging; flogging becomes a light beating. This is mocking the law by accepting bribes—how can it be called benevolence?
Human life is of utmost importance. If an innocent person is killed, the judge must thoroughly examine and clearly investigate the case until no doubt remains. After doing so, he must surely exact retribution with life. This not only comforts the aggrieved spirit of the deceased but also soothes the vengeful hearts of the widows and orphans. Furthermore, it clarifies the principles of heaven and establishes the nation’s discipline. This will bring satisfaction to those who witness it and serve as a lesson for future generations—is this not also good?
Nowadays, moral education has declined, people are deceitful, each pursues their own interests, and customs have all collapsed. The most heinous criminals often escape punishment, while the virtuous people cannot avoid arbitrary punishment. Moreover, the law is not applied to the powerful, but applied cruelly to the weak. They are lenient toward the powerful and harsh toward the humble. They apply different laws to identical cases and debate equally guilty offenses differently. Cunning officials toy with legal texts and exploit opportunities like merchants. This is not merely the fault of failing to execute murderers and neglecting criminal law. How can this lamentable state of affairs be fully expressed in words?
