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CHINA LEGAL SCIENCE 2021年第2期|夏商周时期法律思想研究
日期:21-04-09 来源: 作者:zzs

LEGAL THOUGHTS IN DYNASTIES OF XIA, SHANG AND ZHOU


Song Lijue & Ma Xiaohong


TABLE OF CONTENTS



I.    THE ERA OF DIVINE LAW AND THE BELIEF IN HEAVEN
II.  THE WILL OF GODS AS THE SHARED ORIGIN OF LAW IN ALL CIVILIZATIONS
III. THE MAINSTREAM OF CHINA’S LEGAL THOUGHTS
A. The Emergence of the Concept of the ‘Mandate of Heaven’ and ‘Inflicting Punishments on Heaven’s Behalf’ in the Xia Dynasty
B. The Development of the Concept of the ‘Mandate of Heaven’ and ‘Inflicting Punishments on Heaven’s Behalf’ in the Shang Dynasty
IV. THE REASON FOR THE LACK OF A NATIVE RELIGION IN CHINESE CIVILIZATION
A. Chow-Kung and Fitness with Rites
B. ‘Mandate of Heaven’ and ‘Inflicting Punishments on Heaven’s Behalf’
V.  A FEW MORE WORDS ON HEAVEN, PEOPLE AND RULERS




Previous study of Chinese Law put less emphasis on the relations between faith of Heaven and Spirits in the ancient Chinese society and its laws. Many scholars considered the lack of faith in Chinese civilization, to which they attributed  the weaknesses of laws in practice, a chronic illness of China’s traditional laws. To clarify these issues through tracing back to its source, the study explores the development of Divine Law Era in Chinese history, i.e. dynasties of Xia, Shang and Zhou. Xia was the formation period of the theocratic law, while Shang was the prosperous period. Zhou was the period of vacillation, which was also the fundamental turning point of failure in forming the religious faith as that in other civilizations. It was the early separation from the control of Spirits in Chinese civilization that prevented China from religious disputes and conflicts in other civilizations. Inhuman persecution of heretics by laws was also prevented. Therefore, the ancient Chinese society could achieve its highest level of civilization and maximum equality.

I. THE ERA OF DIVINE LAW AND THE BELIEF IN HEAVEN

At the dawn of human civilization, the will of gods dominates everything and gods were where the legitimacy of customs, institutions and power derives from. That law is something originating from gods was a common belief among all civilizations in this period of human history. In people’s mind, law was sacred since it embodied the will of their gods and therefore must be obeyed by their community. Those who broke the law defied the gods and would be severely punished. Henry Maine, the British legal historian, pointed out the characteristics of the law in that age: Law was deemed to be dictated by gods, i.e. gods were legislators; sovereigns, on the other hand, were mere law enforcers. As the people that carried out gods’ will, sovereigns derived their authority from gods, so their powers were in consequence sacred and legitimate. In other words, they had gods’ mandate to rule. This worship of gods in the early days of human history is termed ‘prehistoric religion’ within the academia and the historical period when sovereigns traced their powers to gods is termed the ‘era of divine law’.

The beginning of Chinese civilization witnessed similar worship of gods and such worship played a role in the formation of Chinese law. Thus, the Xia, Shang and Zhou dynasties may be designated as the ‘era of divine law’ in China. The divine law emerged in the Xia dynasty (c. 2070-1600 BCE) when the ruler deeply believed that they had the ‘mandate of Heaven’, prospered in the Shang dynasty (c.1600-1046 BCE) when Lord on High and ancestors were worshiped, and faded in the Zhou dynasty (c. 1046-256 BCE) when the mandate of Heaven was connected to the will of the people.

What is interesting about Chinese civilization is that it is the only civilization where a native religion did not emerge after the end of the divine law era. Buddhism, Christianity and Islam dominated almost all the ancient civilizations except China. Buddhism was declared the state religion in the 3rd Century by Ashoka, the third king of the Mauryan Empire (322-185 BCE) in ancient India; Christianity was established as the official religion in the Roman Empire at the end of the 4th Century and gradually spread throughout Europe from the 5th Century to the 10th; Islam, originated in the Arabian Peninsula, ‘became an ideological basis for the unification of the Arabian people and created a unified Arabian nation’ and ultimately ‘transformed the loose alliance of desert tribes into a real nation.’ Chinese civilization, meanwhile, took a different path. Although the divine law never completely disappeared in China in the thousands of years following its weakening in the Western Zhou dynasty, the secular world was set free of the control of gods ever since and a fully-developed native religion, like Buddhism, Christianity or Islam, never emerged. As for the Chinese law, it never had a system of divine law that is separate from the system of human law as Roman law, admired by Western scholars, did at a very early stage of its development. Also, China never developed a set of canon law that is distinct from secular law as Western Europe did in the Middle Ages, let alone a set of religious laws, like Sharia in Islamic countries, that incorporate gods’ preaching.

Western scholars’ opinions differ on whether the absence of a native religion is a curse or blessing for the Chinese law, society and civilization at large. Maine argues that:

‘Quite enough too remains of these collections, both in the East and in the West, to show that they mingled up religious, civil, and merely moral ordinances, without any regard to differences in their essential character and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the later stages of mental progress.’

Maine further argues that although ancient China passed ‘the stage at which a rule of law is not yet discriminated from a rule of religion’, a stage that ancient India did not pass, ‘the civil laws of China are coextensive with all the ideas of which the race is capable.’ In other words, human law, divine law and morality were not separated from each other in China. In Maine’s opinion, the fact that an independent set of divine law did not appear in places outside the Western world indicates a sort of stagnation in the development of these civilizations. But the great Enlightenment thinker Voltaire holds a different view on Chinese civilization. He did not see China as an atheistic country or one that did not have any belief. In his hefty tome An Essay on Universal History, the Manners, and Spirit of Nations, Voltaire described China as an enlightened nation that had different beliefs and customs from the Western world. He warned Western academia against judging China with Western values. For example, Voltaire admitted that ‘the Chinese law did not concern itself with rewards and punishment after death and the Chinese people would not believe in things that they were not certain of, in which case they were strikingly different than other great and civilized races,’ but he did not view this difference as an indication of the primitiveness of the Chinese law or the stagnation of Chinese society. Rather, he saw it as a strength of Chinese civilization:

‘We ought rather to admire two virtues of the Chinese people, by which they are distinguished and which at the same time condemn the superstitions of the pagans, and the manners of the Christianity. The religion of the literati was never disgraced by fables, nor stained by quarrels and civil wars.’

Gods’ presence never completely vanished in ancient China, but divine power had been playing a different role in the evolution of the law in China than it did in other civilizations since the Western Zhou dynasty, a difference that has attracted much attention from academia when the Chinese Empire began to collide and, at the same time, converge with the Western world in the 19th Century. Generations of scholars back then held various opinions about the unique relationship between divine power and law in ancient China, but none denied that such a special relationship is only seen in Chinese civilization and it was a topic that no scholars can avoid if they wanted to find out why China was so different than the Western world.

II. THE WILL OF GODS AS THE SHARED ORIGIN OF LAW IN ALL CIVILIZATIONS

The divine-law theory consists of three theses. First, the right to rule derives from the will of gods, who hold a supreme position in the world and offer humans protection. This is a doctrine that is termed as the ‘divine rights of sovereigns’. Second, law embodies the will of gods, so those who break the law defies god and will be severely punished by sovereigns, who have the right to inflict punishments on Heaven’s behalf. Third, prescribed procedures, such as divination, should be applied to discover gods’ judgment on cases that are difficult to decide by humans. ‘廌’(Zhi), one component of the Chinese character ‘灋’ (Fa, an old variant of law in Chinese), reflects the methods that the ancient Chinese people used to detect the divine judgment on a particular case. In Chinese legends, Zhi was a mythical creature with a single horn on its forehead. It belonged to a judge called Gao Yao, who served under the legendary emperor of Shun. Zhi was capable of telling the innocent from the guilty and never made a mistake. Gao Yao would bring it to the court to help him decide cases and those whose horn butted were the guilty ones. In the Chinese dictionary Shuowen Jiezi, compiled by Xu Shen about AD 100, the character ‘灋’ was interpreted as a combination of three components: the main and first component of ‘廌’ refers to the mystical creation used to tell the innocent from the guilty; the second component ‘去’ means ‘remove’; and the third component ‘氵’ means water, which represents fairness in the mind of ancient Chinese people. Thus, ‘law’ in ancient Chinese means ‘using the magic creature Zhi to remove the guilty from the innocent so as to restore fairness,’ a definition that reflects the ancient Chinese people’s understanding of the law.

There are several reasons for the emergence of divine law. First, the lack of science in ancient society constrained humans’ understanding of the world around them. Their limited knowledge resulted in their fear of and awe in the things that they could not explain. They began to believe that there must be a supernatural power behind all the mysterious natural phenomena, thus the emergence of prehistoric religions. The supernatural power, in their mind, not only controlled everything in nature, such as the motion of the sun, moon and stars, change of seasons, and occurrences of natural disasters, but also everything in human society, like the births and deaths of people and the rises and falls of clans. Second, the appearance of nations and social hierarchies contributed to the emergence of divine law. The formation of a nation brought with it more severe polarization in wealth, more brutal exploitation, more frequent wars and other things that ancient people could not understand. They could only attribute the sufferings and happiness in their lives to the arrangement of gods. Third, rulers in the early days of political history needed divine law to maintain their authority. In order to hold onto power, sovereigns would use the power of gods and people’s belief in gods to justify the legitimacy of their regime. From the history of all civilizations, we can see that the era of divine law is a stage that humans could not avoid. In this stage, gods were not only the pillar that sustained sovereigns’ rule, but also the light that guided all people, rulers and subjects alike, through the unpredictable life. In the age of divine law, people believed that laws were dictated by god. Consequently, the dominant legal theory was to interpret laws with gods’ will.

In the 18th Century BCE, Hammurabi, the sixth ruler of the first dynasty of Babylon, inscribed 282 provisions on a stela set up in a temple. These provisions, which included laws about prices, trade, taxes, family matters, debts and theft, are known as the Code of Hammurabi. The stela was taken by troops of Elam to their capital of Susa after they invaded Babylon and was discovered and taken to France by French archaeologists in 1901. It is now in the Louvre Museum. At the beginning of the Code, Hammurabi claimed that he was ‘the exalted prince who feared God’ and that his right to rule was given by gods:

‘When Anu the Sublime, King of the Anunaki, and Bel, the lord of Heaven and earth, who decreed the fate of the land, assigned to Marduk, the over-ruling son of Ea, God of righteousness, dominion over earthly man, and made him great among the Igigi, they called Babylon by his illustrious name, made it great on the earth, and founded an everlasting kingdom in it, whose foundations are laid so solidly as those of heaven and earth; then Anu and Bel called by naming me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind.’

In ancient India, the most well-known and authoritative code is the Laws of Manu, the compilation of which began in the third Century BCE and ended in the third Century A.D. In the mythology of India, Manu was the son of God and the first man, who was blessed by God and had divinity in him. The Laws of Manu deals with a range of topics, ‘including cosmogony; the definition of the dharma (the religious and moral law in Hinduism); the sacraments; initiation and the study of the Vedas (the sacred texts of Hinduism); marriage, hospitality, funeral rites, dietary restrictions, pollution, and means of purification; the conduct of women and wives; and the law of kings. The last leads to a consideration of matters of juridical interest, divided under 18 headings, after which the text returns to religious topics such as charity, rites of reparation, the doctrine of karma, the soul, and hell.’ The Laws might be too promiscuous for modern people, who are more accustomed to codes that deal only with legal matters. In ancient India, the Laws of Manu was believed to be made by God for humans. It unequivocally declared that the provisions were dictated by God and must be obeyed by all, reflecting the heavy religious atmosphere in ancient India:

‘In order to clearly settle his duties and those of the other (castes) according to their order, wise Manu sprung from the Self-existent, composed these Institutes (of the sacred Law) ... In this (work), the sacred law has been fully stated as well as the good and bad qualities of (human) actions and the immemorial rule of conduct, (to be followed) by all the four castes ... The rule of conduct is transcendent law, whether it be taught in the revealed texts or in the sacred tradition; hence a twice-born man who possesses regard for himself, should always be careful to (follow) it.’

The Twelve Tables, made in the fifth Century BCE, is the most famous code of ancient Rome. The long-standing view about the origin of the Twelve Tables is that it was the product of struggles between patricians and plebeians and was compiled under the pressure of the latter. The Twelve Tables was destroyed during the invasion of Rome by a Gallic tribe in 390 BCE and the full text was nowhere to be found ever since. The provisions of the Twelve Tables we see today were derived from references in later juridical writings. The determination of the authenticity of these provisions has been the focus of Western legal scholars for years. Seen by the ancient Romans as ‘the origin of all public and private law,’ the Twelve Tables still includes remains of divine law. For example, section 9 of Table VIII stipulates that if anyone pastures on or cuts by night another’s crops obtained by cultivation, which are deemed as crimes committed to Ceres, the goddess of the harvest in ancient Roman religion, the penalty for an adult shall be capital punishment and for a person below the age of puberty shall be scourged or to pay double damages. Giuseppe Grosso, a legal historian focusing on Roman law, considered this penalty as a form of consecratio. He argues that:

‘The Twelve Tables reflects the process of secularization of consecratio. Although some types of consecratio in the code can be associated with religion and some are just forms of sacrifices, the Twelve Tables is definitely one step closer to the secularization of criminal justice. The death penalty imposed on those who harm crops by night as a sacrifice to Ceres, is a form of consecratio in essence, but the death by burning inflicted on arsonists, although bearing traces of primitive religion, exemplifies the law of retaliation. Meanwhile, the capital punishment once imposed on those who kill others by magic (malum carmen incantare) or those who charm crops (fruges excantare) is one of the oldest forms of consecratio.’

Divine power also ‘participated’ in the formation of Chinese law. People in ancient China believed that laws and rules represented gods’ will. Such a belief is reflected in the chapter of the Great Laws of the Book of Historical Documents. At the beginning of the chapter, King Wu of Zhou, founder of the Zhou dynasty, asked Jizi, an official who had served the overthrown Shang dynasty, about political affairs. Jizi then told the king the story of how Yu the Great, a savior-hero and reputed founder of the Xia dynasty, obtained the Great Laws with its nine divisions from Heaven:

Jizi thereupon replied, ‘To him (Yu the Great), Heaven gave the Great Laws with its nine divisions, and the unvarying principles (of its method) were set forth in their due order. (Of those divisions) the first is called the five elements; second, reverent attention to the five (personal) matters; third, earnest devotion to the eight (objects of) government; fourth, the harmonious use of the five dividers of time; fifth, the establishment and use of royal perfection; sixth, the discriminating use of the three virtues; seventh, the intelligent use of (the means for) the examination of doubts; eighth, the thoughtful use of the various verifications; ninth, the hortatory use of the five (sources of) happiness, and the awing use of the six (occasions of) Suffering.’

This passage shows that the Great Laws that Heaven gave to Yu the Great were rules about nature, morality, political affairs and the relationship between the three.

III. THE MAINSTREAM OF CHINA’S LEGAL THOUGHTS

Although the origin of Chinese history can be traced back to 5,000 years ago according to the Chinese mythology, here the authors take the Xia dynasty as the starting point of the history of China’s legal thoughts since the historicity of the alleged thought of mythological figures is yet to be established by definite evidence. Judging from the limited historical sources concerning the Xia dynasty, the authors can conclude that a system of ideas about the worship of Heaven had already emerged at that time. In the Shang dynasty, veneration of Heaven and ancestors was the most important thing in politics and people’s life, which is showed by the oracle-bone inscriptions. In the early days of the Zhou dynasty, Duke of Zhou proposed a theory that rulers should both venerate Heaven and care for the people, putting the people in the same position as Heaven as an origin of political legitimacy and, as a consequence, lowering the status of Heaven in politics. The era of divine law ended at this point in China. The legal thought in this era can be best represented by the concept of the ‘mandate of Heaven’ and ‘inflicting punishments on Heaven’s behalf in the Xia and Shang dynasties and the thought that ‘rulers should venerate Heaven and care for the people’ and that ‘they should set themselves as a moral example and impose punishments prudently’ in the Western Zhou dynasty.

A. The Emergence of the Concept of the ‘Mandate of Heaven’ and ‘Inflicting Punishments on Heaven’s Behalf’ in the Xia Dynasty

In the Lessons on the Intellectual History of China, Yang Dongchun, a Chinese historian, argues that China’s intellectual history must have begun very early, but the exact point of time is hard to determine, due to the lack of historical evidence. Still, ‘from the descriptions in books like the Book of Songs, the Book of Historical Documents, Zuo Tradition and Discourses of the States, we can see the general picture of the ideas and thought before the Spring and Autumn period (771-476 BCE).’ Yang thinks that after the prevalence of the worship of nature spirits and spirits of the dead in the prehistorical period of China, ‘the conception of Lord on High began to exist in the Xia and Shang dynasties. The religion in China began to shift from monotheism to polytheism, but polytheism did not just disappear.’ The Xia people, the first political force that unified all tribes and established the first dynasty in Chinese civilization, worshiped Heaven, a god deemed to be the highest deity among the gods of all tribes, as its patron god. The Xia people’s extreme worship of Heaven was the origin of their legal thought.

The limited historical sources concerning the Xia dynasty show that the Xia rulers fully believed that their right to rule must come from Heaven. The story mentioned above that Yu the Great was given the Great Laws by Heaven was deemed by the Xia people to be the proof that he had the mandate of Heaven. People in the Han dynasty thought Heaven gave Yu the Great the Great Laws to help him to control the flood. According to the History of the Former Han Dynasty, ‘Heaven bestowed luoshu on Yu the Great when he was trying to control the flood. Yu the Great discovered the revelation in the diagram and wrote down the Great Laws.’ The story is narrated in a more detailed way in the chapter of the Great Laws of the Book of Historical Documents. Gun, the father of Yu the Great, did not follow the principles behind the change of the five elements when he was trying to stop the flood, which irritated Heaven, who then withheld the Great Laws from him. Yu the Great continued his father’s task using a different but correct strategy, so Heaven gave him the Great Laws. The story showed that Yu the Great was chosen by Heaven to hold the Great Laws after he passed the test. Therefore, Yu the Great ruled at the will of Heaven. Another story recorded in the chapter of the Speech of Kan of the Book of Historical Documents also showed the Xia rulers’ belief in their inalienable right to rule. Qi, son of Yu the Great, made the rulership hereditary in his family, a change that was opposed by a tribe named Youhu, so Qi waged war against the tribe, claiming that he was punishing them on Heaven’s behalf. He asserted that the lord of the Youhu tribe ‘wasted and despised the five elements that regulate the seasons, and has idly abandoned the three acknowledged commencements of the year,’ which is to say the lord of the Youhu tribe did not follow the will of Heaven, so ‘on this account Heaven was about to destroy him, and bring to an end his appointment to the tribe of Youhu.’ Apparently, Qi believed that he was punishing the tribe of Youhu on Heaven’s behalf when he waged war against them.

B. The Development of the Concept of the ‘Mandate of Heaven’ and ‘Inflicting Punishments on Heaven’s Behalf’ in the Shang Dynasty

The Shang dynasty was when the theory of divine law prevailed. The most significant thing about the study of this part of Chinese history is the discovery and research of the oracle-bone inscriptions, which substantiated records about this period that appeared in later literature and enabled historians to study the theory of divine law in this period with definite primary historical sources. Based on the research on oracle-bone inscriptions, scholars almost unanimously agree that the Shang dynasty is a very religious era. Feng Shi, an archaeologist, states that:

‘The conception of a supreme god who lives in heaven and controls everything in the universe was created no later than the Shang dynasty. Guo Baodiao, a scholar specializing in the research on oracle-bone inscriptions, points out that:

‘Superstition dominated the life of people in the Shang dynasty. They worshiped spirits of the dead and nature spirits and would ask a diviner about almost everything every day.’

Through archaeological excavation and the study of oracle-bone inscriptions, we can feel the pervasive presence of all kinds of spirits in the Shang dynasty. The emergence of the concept of Heaven did not bring about the decline of lesser gods, which is a unique phenomenon in China’s era of divine law. The practice of worshiping ancestors, a remaining tradition from the prehistorical period, was further developed in the Shang dynasty. The Shang people worshiped their ancestors alongside Heaven and they would ask both Heaven and their ancestors when performing divination. The practice of worshiping ancestors alongside Heaven delivered this message to all people: The ancestors of the ruling Shang people had a close relationship with the supreme Heaven, so the Shang people was of a nobler lineage than any other peoples on this land; moreover, it was the Shang people that Heaven had chosen to be the ruler of all peoples and Heaven would definitely protect the Shang people. The Shang people wanted to prove their legitimacy to rule through worshiping their ancestors. A poem named Xuanniao (a kind of divine bird in Chinese ancient legend) in the Book of Poetry records the eulogy, which is also their glorious history as they recorded, the Shang people would deliver to their ancestors when making sacrifices to them.

For the Shang people, the birth of Xie, one of their ancestor, was connected with a bird sent down by Heaven; another ancestor, Tang, was given the right to rule by Heaven; leaders of all tribes obeyed kings of the Shang people and the Shang people, as the people chosen by Heaven to have the mandate to rule, were never remiss in their duties. The Shang people’s extreme veneration of Heaven and their ancestors lasted for around 600 years. According to the chapter of the Yin, Basic Annals of the Grand Scribes Records, King Zhou of Shang, the last king of the Shang dynasty, deeply believed that he had the mandate of Heaven even when he was about to meet his doom brought on him by a massive army led by the Zhou people. ‘Wasn’t I born with the mandate of Heaven?’ he said to one of his officials who were trying to warn him of the near collapse of the regime. 

The practice of ancestor worship originated from the Shang people’s belief that humans’ spirit live forever. Thus, the Shang people allowed tribes and countries under its dominion to worship their own ancestors and patron gods. Moreover, gods of the sun, moon, mountain and other natural objects and phenomena were also regularly venerated according to prescribed rituals. According to the chapter of the Laws of Sacrifice of the Book of Rites, the Xia, Shang and Zhou people would worship their own chief god and ancestors, and the leaders of feudal states would make sacrifices to the nature deities. Zhu Tianshun, a Chinese scholar, points out that:

‘After the conception of the Christian God was created in the Western world, God took everything in the universe under his control, eliminating the necessity of the existence of other deities. The Lord on High created by the Shang people, however, delegated the insignificant part of his authority to other deities. That is why there were still many gods and goddesses exerting their power under Lord on High’s command.’

The practice of worshiping both Heaven and ancestors not only provided the Shang people with the legitimacy and historical grounds they needed to support their right to rule, but also made it convenient for the Shang kings to manage the officials on their court and people in their own tribe. According to the chapter of Pangeng of the Book of Historical Records, Pangeng, a king of the Shang dynasty, met opposition from some noblemen and commoners when he announced the capital of the country should be moved to another city, so he used the authority of Heaven and ancestors to suppress the opposition. He said to those who objected to him, ‘My ancestors, the former Shang kings, were the ruler of your ancestors and now, you are my subjects. If you do not act in good will, my ancestors will tell your ancestors and then your ancestors will abandon you and not save you from death. Some officials in my government only think of meddling with political affairs and hoarding up treasure. If I tell your ancestors about what you are doing, they will definitely urge me to punish you severely and my ancestors will send down great calamities on you, too.’

As for other tribes, especially hostile ones, the Shang people never hesitated to use the authority of Heaven when dealing with them. For example, Tang, founder of the Shang dynasty, said that ‘for the many crimes of the sovereign of Xia, Heaven has given the charge to destroy him’, when he was about to wage war against the Xia dynasty. The oracle-bone inscriptions showed that the Shang dynasty would determine the punishments on prisoners of war through divination. These punishments were very cruel, including killing them as human sacrifices. Zhang Guangzhi, an archaeologist, points out that members of the Qiang people, which often appeared as the prisoner of war in the oracle-bone inscriptions, were ‘often used as human sacrifices by the Shang people to their ancestors. According to the oracle-bone inscriptions, members of the Qiang people were often used as scarifies as if they were cattle, sheep or antelopes.... Hu Houxuan, a historian specializing in the history of the Shang dynasty, estimated that at least 7,426 members of the Qiang people were used as human sacrifices, based on those oracle-bone inscriptions that record the specific number of how many Qiang people were used in one sacrifice.’ These cruel ‘punishments from Heaven’ were also imposed on criminals. The oracle-bone inscriptions contain words that judges engraved on bones or turtle shells when they asked Heaven about whether a suspect should be punished or which kind of punishments should be imposed on a certain criminal. The oracle-bone inscriptions and other historical documents show that criminal punishments in the Shang dynasty were extremely brutal, including tattooing criminal’s face, cutting off their nose, legs and genitals, capital punishment (the five types of punishment is all together called the Five Punishments, and killing them by chopping them into pieces, tying them to a red-hot copper pillar and setting them on fire. The oracle bones and archaeological evidence show that a criminal punishment system was established in the Shang dynasty. Some of the names of these punishments were inherited by the later dynasties as Xunzi, a Chinese Confucian philosopher and writer who lived during the Warring States period, concluded in the chapter of Correct Naming of his book Xunzi. Since these punishments were determined by Heaven through divination, their cruelty was justified.

Many scholars have pointed out that although the Xia and Shang dynasties all based their right to rule on divine power, the Shang people were more religious than the Xia people in worshiping Heaven and ancestors, and had crueler criminal punishments. This phenomenon is an example of what Montesquieu has said about despotic countries: ‘In those states religion has more influence than anywhere else: it is fear added to fear.’ Adamson Hoebel, an anthropologist, states as follows when explaining the characteristics of laws that are deeply influenced by the authority of deities and ancestors: ‘The rules for every type of conduct covered by the law were, at least nominally, consistent with requirements of morality and religion.’

Applying the academic views mentioned above to the criminal justice system in the Shang dynasty, it is obvious that the Shang dynasty was a quasi-theocratic country, and the only one in Chinese history at that.

IV. THE REASON FOR THE LACK OF A NATIVE RELIGION IN CHINESE CIVILIZATION

A. Chow-Kung and Fitness with Rites

Chaw-Kung is the founder of Zhou, and the one who has comprehensively concluded experiences of Xia and Shang. His thoughts concerning the relationship of ‘Heaven’ and ‘Morality’ have a profound impact on the philosophical development of the Spring and Autumn Period and the Warring States Period. In the governing of Zhou, he prevailed over people to Heaven, the good ethics to punishment. His thoughts are remarkable for forming the social and legal system of Zhou, the Chinese patriarchal clan system (hereinafter referred to as the clan system). Different from the rites or ritual system in Xia and Shang, the clan system was based on blood relationship, which respected ancestors, to maintain family ties, distinguish one’s rank in the clan, and provisions of the succession order and the status of the different clan members enjoy different rights and obligations in law. Actually, the clan system was born in Shang, and matured in Zhou by Chow-Kung. The descendants after Zhou yet named it as ‘govern within the ritual system’ which is based on the clan system and embodied in rites, with the prominent feature of ‘emphasizing morality’. 

The rulership is strengthened by theocracy, and it is easy to be extremely cruel because of the latter, which is not restricted by rules, and often makes the national policy lose room for adjustment and go to extremes, proved with evidence by King Zhou of Shang Dynasty. In the end, he bemoaned: ‘Alas, isn’t my life at the hand of God?’ Therefore, some people start to question the role of the deified monarchy, trying to find a lubricant between God’s will, rulership and law to ensure the flexibility and continuity of national policy.

In the process of regime change, it is often necessary to answer some questions on ‘fitness with rites’: since the rulership is vested by God, then how can we explain the relationship between the overthrow of the old dynasties by ‘Tang-Wu Revolution’ and the violation of God’s will? King Zhou also claimed to be the embodiment of God, whereas the people of the Zhou Dynasty overthrew him. Isn’t it tantamount to offending God? This requires the people of the Zhou Dynasty to find a theoretical basis to take off the crown of God from the head of the king of Shang Dynasty and put it on the head of the king of Zhou Dynasty. Therefore, representatives such as Zhou Gongdan thoroughly revised the concept of God and made a timely interpretation of ‘fitness with rites’, based on the experience and lessons from the vicissitudes of Xia and Shang Dynasties.

People of Zhou Dynasty, like those of Shang Dynasty, worshiped God as well, but solved the contradiction between man and God: on the one hand, God cannot be abandoned; on the other hand, God’s will might change. For example, the worldly fate bestowed by God is not immutable. 

The exact wisdom of Chow-Kung and other rulers lies in their preservation of ‘God’ and explanation of the necessity of regime change. They not only regard ghosts, gods, emperors and heaven as spiritual ‘umbrellas’, but also put forward the idea of being reality-oriented and human affairs-based, so as to meet the requirements of both humans and gods. The systemized version of this thought is the legislative principle of ‘matching heaven with virtue, following God’s will and protecting the people’ and the judicial principle of ‘promoting morality and being prudent in the infliction of punishment’. From this formed the ideology of rites and law under the unique patriarchal system of the Western Zhou Dynasty. The rulers of the Zhou Dynasty were more reality-oriented, paid due attention to human affairs, revised the concept of God, and realized the change from emphasizing God-related affairs to emphasizing human affairs.

B. ‘Mandate of Heaven’ and ‘Inflicting Punishments on Heaven’s Behalf’

The Shang people inherited from the Xia people the concept of the supreme ‘Heaven’ or ‘Lord on High’ as the basis for their right to rule and further developed it. Their piety towards Heaven justified their ruling, but left the Zhou people a huge problem, i.e. how to explain the concept of the ‘mandate of Heaven’ and why the pious Shang people lost their power. The Zhou tribe was a lot weaker than the Shang tribe both economically and politically when they defeated the Shang tribe. In the Book of Historical Documents, we can see that the Zhou people often call their own tribe ‘the small country of Zhou’ and the Zhou dynasty ‘the big country of Shang’. After they replaced the Shang people as the ruling tribe, the most urgent thing for the Zhou people was to explain their legitimacy to govern. To maintain their newly established regime, the Zhou people had to find the answer to two questions: First, why had Heaven abandon the Shang people? Second, how could ‘the small country of Zhou’ replace ‘the big country of Shang’? Their answers to these two questions deeply changed the theory of divine law in China.

According to the chapter of the Great Announcement of the Book of Historical Documents, the Zhou people explained why they became the new ruler in this way: Heaven, favorable to the King Wen of Zhou, a king of the Zhou people who was the father of King Wu of Zhou, gave prosperity to the small country of Zhou. Through divination, King Wen of Zhou knew the will of Heaven and acted accordingly, so he received the mandate of Heaven. The just and powerful Heaven helped the small country of Zhou to grow in strength. Thus, the small country of Zhou defeating the big country of Shang was Heaven’s will, since it was Heaven that gave the Zhou people the right to govern. Besides, the Zhou people were punishing the Shang people on Heaven’s behalf when they waged war. The Zhou rulers explained their rise to power with the theory of divine law they inherited from the Xia and Shang dynasties. They managed to prove that they had gained the mandate of Heaven, just as the kings of the Xia and Shang dynasties did, giving strong grounds for the legitimacy and sanctity of their ruling.

It was more difficult, however, for the Zhou kings to explain the fall of the Shang dynasty. Why did Heaven abandon the pious Shang people, the self-claimed children of Heaven who were never remiss in their worshiping of Heaven and ancestors? To answer this question, the Zhou people refined and developed the theory of divine law.

Here we would like to make some clarifications about two expressions commonly seen in the textbooks and handouts about Chinese legal history, i.e. the expressions for ‘improving the people’s moral standards as the primary governance strategy and imposing criminal punishments as the secondary’ and ‘being virtuous to maintain the mandate of Heaven’. These two expressions were coined by modern scholars and were not used by people in the Zhou dynasty. As far as the historical documents about the Western Zhou dynasty that the authors have read are concerned, people in the Zhou dynasty did not use these expressions. The expression of ‘improving the people’s moral standards as the primary governance strategy and imposing criminal punishments as the secondary’ was first seen in the book of the History of Chinese Legal Thought, written by the scholar Yang Honglie and published in 1936 while the expression of ‘being virtuous to maintain the mandate of Heaven’ in the book of the History of Chinese Legal Thought: A New Version, written by the scholar Zhang Guohua and published in 1991. Before Yang Honglie, Liang Qichao, a preeminent Chinese scholar who lived during the late Qing dynasty and the early Republic of China, designated the mainstream political ideology of the Xia, Shang and Zhou dynasties as ‘the theory of governance of Heaven’, without enlarging on the differences between the ideology of the Shang dynasty and that of the Zhou. Yang Honglie and Zhang Guohua pointed out such differences, advancing the research on legal thought in the Xia and Shang dynasties. Yang and Hong were both renowned scholars in the field of Chinese legal history and their views are widely recognized in academia. But many textbooks have misquoted their summarizations of legal thought in the Western Zhou dynasty as theories originally proposed by Duke of Zhou or the Zhou people, which is incorrect and has caused widespread misunderstandings. The authors do not clarify the origins of these two expressions to show the disagreement with the two scholars. Rather, the authors would like to cite Zhang’s views to explain the differences between the divine-law theory in the Shang dynasty and that in the Zhou dynasty.

Zhang Guohua thinks that the reason why the Zhou rulers proposed the theory that ‘rulers should be virtuous to maintain the mandate of Heaven,’ was to add another factor, i.e. the virtues of rulers, into the bestowing of the mandate. In this way, Heaven’s will and the virtues of rulers were both determinants of who would occupy the throne. The main points of the theory are as follows:

First, the mandate of Heaven can be shifted to others or other peoples. The Shang people considered Heaven as their patron god who had favor towards them and their kings. In the Zhou people’s mind, however, Heaven protects all people on this land and can be worshiped by all; he is just and would not favor a certain person or people. Thus, the mandate of Heaven can be shifted, as the poem tilted Decade of King Wen said that ‘so dark and changing are Heaven’s ways’ and as King Cheng of Zhou, the second king of the Shang dynasty, said to be one of his officials that ‘Heaven’s appointments are not unchanging’ in the chapter of the Announcement to the Prince of Khang of the Book of Historical Documents.

Second, the mandate will only be bestowed on moral ones, as King Cheng of Zhou said that ‘Great Heaven has no partial affections; it helps only the virtuous.’ The ancestors of the Shang people had virtues, so they become the ruling tribe. But the Shang people gradually lost their virtues and, as a consequence, were deprived of the mandate to rule, so the fate of the Shang people was changed. At that time, King Wen of Zhou became the ‘great son of Heaven’ due to his virtues, so ‘Heaven gave a grand charge to King Wen of Zhou.’ To the Zhou people, sovereigns’ power derived from Heaven, but also from their own virtues; the piety towards Heaven and spirits alone was not enough to gain the mandate to rule; only those who were both religious and moral could ascend to the throne.

Third, the greatest virtue that rulers can have is ‘caring for the people.’ Whether the people are satisfied with their ruler or not was the criterion for determining whether rulers are virtuous or not. Besides, the heart of the people represents Heaven’s will as King Wen of Zhou said that ‘let not men look into water as the mirror; let them look into (the heart of) the people as the mirror (that shows Heaven’s will).’ To ‘care for the people’ means rulers should understand and help ease the burdens of life on the people.

In justifying their legitimacy to govern, the early Zhou rulers recreated the concept of Heaven as a just god and emphasized the role played by humans in changes of political power. The human elements in changes of political power include the virtues of rulers and the heart of the people. Since the heart of the people became one of the two origins from which the Mandate of Heaven derived, Heaven’s authority weakened consequently. The previously inaccessible Heaven was now connected with the people. The mandate of Heaven was bestowed according to Heaven’s will and Heaven’s will was consistent with the will of the people. From the Western Zhou dynasty on, the theories about the legitimacy of law and the right to rule were based on the combination of Heaven’s will and the people’s will.

Significantly, the following period of development in the Spring and Autumn and the Warring States, Confucious has already accepted and expounded the cosmos of  Zhou’s legal and social thoughts in ‘the rites ritual games article’. And even more important, ‘a Hundred Schools of thought’ in that following period, the Chinese civilization prospered greatly and affected ancient China greatly. Theoretically and practically, ever since the emergence and evolution of ‘a Hundred Schools of thought’, the Chinese civilization has put an end to the possibility of becoming a religious one. The Confucian school mostly adheres Zhou’s thoughts concerning people, morality, but weakens the role of heaven or god. Both Legalist school and Taoist school are commensurate in terms of beliefs in ‘heaven’ which is equated with ‘nature’. As to Mohist school, they have faith in the punishment of the wicked by Heaven, referring to the god of impartiality. In a nutshell, although different schools possess disparate thoughts on heaven and god, they all believe in the natural rule and morality. All of these thoughts pave the way for Han dynasty to unify states of ancient Ancient, promoting Chinese civilization profoundly.  

V. A FEW MORE WORDS ON HEAVEN, PEOPLE AND RULERS

Most books on the philosophy of religion try to begin with a precise definition of what its essence consists of. Exhaustive enumeration of religious wars is impossible, the very fact that they are so many and different from one another is enough to prove the word ‘religion’ cannot stand for any single principle or essence, but is rather a collective name. Throughout the world’s history, there are few countries that failed to become religious like China, and so as other countries under the influence of Chinese culture, i.e. Japan and South Korea. Countries of a religious nature, like Thailand, Vietnam and Nepal, are Buddhist states in religion, Vatican, Brazil are Christian countries, Pakistan and Indonesia are Islamic countries, and these are religious countries. In terms of distribution, Asia is mostly Buddhist countries, Europe and America are mostly Christian countries, and of course there are Islamic countries, mainly in the Middle East and elsewhere.

As known to all, numerous wars concerning religion happened during the Middle Age in Europe, e.g. the Hussite Wars, the Thirty Years’ War, the French massacre La Saint-Barthélemy and even Spanish and British wars, including Catholic civil strife, or Catholic and Protestant conflicts. In another way, after Muhammad took over Mecca to spread Islam on the Arabian Peninsula, and his heirs established an Arab empire, the alternation of power in the Middle East was inseparable from Islam, as well as the conflict between the two major religions of Islam and Christianity, best known for being the Crusades. In general, monotheistic religions (Jewish Christianity, Islam, etc.) are extremely exclusive, which means there would be no other god. In this case, the struggle between monogods is extremely brutal, such as the above mentioned Crusade, and differences between theism and sects are badly fierce, mainly attributing to disparate religious ideas and beliefs. Those divergences lead to religious divisions, distinguishing the Catholic and Orthodox churches (eventually leading to the division of the empire, Rome). Unlike monotheism, polytheism (Hindu, Buddhism, Daoism, Shinto, etc.) is often highly compatible. Polytheistic gods are not constant, even absorbing other religious gods and mortals into both the Buddhist and Daoist God, i.e. Nezha and Erlang. Furthermore, ordinary people would become deities through the way to discipline themselves and follow some specific procedures. Polytheism, which embodies the multi-ethnic culture, is an extension of primitive religion. 

Some scholars regard that the Zhou people did not truly believe in the existence of the mandate of Heaven and they were just using this concept as an excuse to maintain their rule, so these scholars deem the Western Zhou dynasty as a period when the theory of divine law faded. There is some degree of truth in such a view. The concept of rulers’ virtues, advocated by the Zhou people, raised the status of the people. Since the well-being of the people was valued more by rulers, the authority of Heaven diminished, paving the way for the collapse of the divine-law theory in the late Zhou period. But such a view might be too extreme. The Zhou dynasty was at a relatively primitive stage of the development of civilizations and besides, Heaven and other deities had a visible presence in the life of people in the Zhou dynasty, so the Zhou people must have believed in the existence of Heaven and its mandate to rule. The reason why the Zhou people put more value on the virtues of rulers and the heart of the people is that they had to explain why the pious Shang people had lost their power. They might not have anticipated the consequences caused by their explanations. There is another thing worth mentioning. The divine-law theory in the Xia, Shang and Zhou dynasties was developed for practical purposes, so it was not very systematic. In this theory, divine power and sovereigns’ power are closely related and never separate from each other, let alone collide with each other. After the Zhou dynasty was established, the relationship between the two types of power in the divine-law theory had a new facet: the factors of rulers’ virtues and the heart of the people were added to the dynamics between the two kinds of power. In the developed divine-law theory, Heaven’s will is consistent with the heart of the people and only the virtuous ones can win the heart of the people, so those who have virtues are following the will of Heaven and will gain or maintain their mandate to rule. 

Today, when we feel confused and even feel worried about ‘no religion’ generated from the ancient land of China, which may lead to the rule of law being ‘hindered’, a review of Voltaire’s words is needed:

‘It does not seem to have been possible that in the first colonies, there could have been any other than a theocratic government; for as soon as a nation has chosen a tutelary god, this has priests; these priests reign over the minds of the people, they cannot govern but in the name of God; they therefore always make him speak; they retail his oracles, and it is by an express order from God, that everything is performed. Hence, the sacrifices of human blood, which have drenched almost all the earth. Theocracy did not only reign for a long time, but it extended tyranny to the most shocking excess that human falsehood can prevail; and the more this government was called divine, the more it became abominable.’

Although Chinese civilization did not develop its own religion, the influence of Heaven and other deities did not dwindle since Heaven still played an essential role in the Zhou people’s explanation of the rises and falls of dynasties. Maybe it is the close connection between Heaven, the people, and rulers in the Chinese divine-law theory that considerably undermined the authority of deities 4,000 years ago, largely reducing the chance of the emergence of a native religion in China. To some extent, this is also the reason that kept ancient China away from the conflicts and massacres caused by religion.



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