What we learned in class today

Western concepts of law trace to the Latin words lex and jus. Jus had the dual meanings of “law” and “right,” as well as more complex meanings relating to fairness and justice. Lex, however, simply referred to codified Roman imperial laws. Today, jus appears as the root of the English word “just,” but “law” derives from Northern European languages, and became part of the common parlance at around the same time that the Normans conquered England in the twelfth century.

In China, however, “law” often appears as the words 法(fa) or 法律(falü). A paper we read for class today examines the origin of these terms, and discovers a Chinese definition of law based on concepts of prohibition, command, warfare, and (most importantly) 刑. (Xing, or punishment.) Indeed, the character for xing includes that of the character for knife, a reference to decapitation. As such, translating the word 法 as “law” in English largely ignores the inextricable relationship between law and punishment in Chinese thought. But why?

According to the author, in contrast to the West, law emerged in China not as a legitimized public power standing above and in furtherance of society, but as a form of forceful punishment used to reinforce clan dominance within and between Chinese nation-states. (Indeed, warfare was even regarded as a form of criminal punishment that could be meted out against offending states.) As such, while the word fazhi is often translated by Westerners as “rule of law,” a more reasonable translation would read: “punishment and reward,” or even “rule by law”; while the West generally thinks of law as inhibiting tyranny, China thinks of law as the product of absolute rule. Indeed, during China’s Bronze Age, “law was seen as the will of the rulers and an instrument of suppression; its primary manifestation was in punishment.”

Modern Chinese law can be traced Li Gui’s Canon of Laws, written during the Warring States Period. During that period, and even today, Chinese law served to reinforce the power of the ruling class, and contained an unprecedented and unduplicated series of rules that varied punishments for offenders based upon defendants’ social standing. To Western eyes, then, the historic Chinese legal system is notable for its barbarism and social stratification, particularly when viewed in light of the sophisticated moral and philosophical system that also emerged from Chinese thinkers during the same time period.

So while the West looks upon law as a back-stop against the State, China looks at the law as a series of prohibitions. Even having a law on the books, in the Chinese mind, means a restriction of rights, not an expansion.