Ancient Chinese Law: The Competition and Fusion of Kinship Tradition and State Will

Introduction to a New Series on China’s Law and Governance

The Forbidden City, Beijing

Editors’ Note: The New Digest is delighted to present this contribution by Associate Professor Chen Tianhao (陈天昊) of the School of Public Policy and Management at Tsinghua University (清华大学), one of China’s leading academic institutions. Professor Chen received his Ph.D. in Public Law from the University of Bordeaux in 2017. He is an expert in both Chinese and French public law and administrative law, with major publications in China Quarterly，China Legal Science (中国法学), Chinese Journal of Law (法学研究), and Revue Française de Droit Administratif. He also serves as the Associate Director of the Center for Law and Governance at the School of Public Policy and Management, Tsinghua University.

Professor Chen has graciously agreed to provide The New Digest with a series of posts, titled “China’s Law and Governance,” introducing Chinese public law and China’s recent rule of law reforms. This post marks the first of the series.

When discussing the development of the rule of law in contemporary China, the starting point is often Deng Xiaoping's reforms in the late 1970s. The essence of these reforms was China's renewed effort to integrate into the Western-led modernization process, following the establishment of diplomatic relations with the United States. In this process, Western legal systems were introduced as models. They aimed to promote a market economy, respond to a pluralistic society, and connect China with globalization. This represents the “visible line” in China’s legal development.

However, China, as a civilization with thousands of years of continuous history, retains the legacy of ancient Chinese law deeply rooted in its society. This legacy continues to play a subtle but significant role in shaping China’s legal system today. It forms the “invisible line” in the country’s legal development.

Looking back at the evolution of ancient Chinese law, we can observe the competition and eventual fusion between kinship traditions and state will. Over time, these forces merged into a stable system. This article provides a brief overview of this process, serving as a prelude to an introduction to the development of contemporary Chinese law.

I. Competition: From Ritual Norms to Law

If law is understood as abstract rules made by the state and equally applied, then ancient Chinese law began to develop during the Eastern Zhou period. The Zhou dynasty first established its capital in the Guanzhong Plain, known as the Western Zhou (1046 BC – 771 BC). Later, due to wars, the capital moved eastward to the Luoshui Valley, marking the Eastern Zhou period (770 BC – 256 BC).

In the Western Zhou period, China's territory was already vast. To maintain governance over such a large country, the Western Zhou royal family implemented the feudal system. The aim was to preserve political unity through kinship ties, which gave rise to the concept of "ritual norms" (Li) (礼).¹  These norms were rooted in kinship. Their essence was to establish the hierarchy among clan members based on the closeness of blood relations. This idea extended to politics, where pseudo-kinship ties were used to determine the hierarchy between people in a broader sense.

The Zhou royal family, as the most prestigious kinship group, divided the land among royal family members, making them local lords. These lords were the minor kinship groups in relation to the Zhou royal family but served as the major kinship groups in their territories. Local lords would further divide land among smaller kinship groups. Each kinship group used "ritual norms" to define its internal hierarchy. This hierarchy was reflected in different behavioral expectations, particularly in ancestor worship rituals.²

However, after the royal family's eastward migration to the Luoshui region, the Zhou dynasty's power to uphold the system of ritual norms gradually weakened. At the same time, the competition and warfare between feudal states intensified. As a result, these states increasingly broke free from the constraints of kinship traditions (ritual norms) and began to emphasize instrumental rationality in both domestic governance and interstate competition.³

The most significant change was that rulers in the feudal states began replacing the old aristocracy with directly appointed bureaucratic officials. This weakened the smaller kinship groups and allowed rulers to exert direct control over the people. They opened official positions and titles to all citizens, providing strong incentives for people to obey the ruler’s will. The primary tool for rulers to implement these reforms was the creation of abstract rules that could be universally applied—Fa (法) (law).

During the Eastern Zhou period, states such as Wei and Zhao initiated legal reforms in 453 BC and 403 BC, respectively, to strengthen their state capacities. Peer pressure further compelled other states to follow suit. The ultimate victor was the state of Qin, which went on to establish the Qin Dynasty. The key figure behind Qin’s legal reforms was Shang Yang. His views on law at that time can be summarized in three key characteristics:

Functional Purpose: The sole aim of the law was to incentivize the populace to engage in farming and warfare. When Shang Yang persuaded the ruler of Qin, he candidly stated: “A wise ruler educates the people by encouraging them to focus on farming and warfare as the only paths to achieving rank and titles. If they do not focus on farming and warfare, they will neither hold office nor gain titles.”⁴  He continued, “A ruler who uses rewards and punishments to support farming and warfare is following the constant law of governance, and the state will grow strong.”⁵

Normative Content: The law emphasized equal application and strict punishments. Shang Yang particularly stressed the importance of “uniformity in rewards and punishments, and uniformity in penalties.” He explained, “Uniformity in rewards means that all ranks and titles are granted solely based on military merit—there are no other paths to achieve office or rank.”⁶  “Uniformity in penalties means that penalties are applied regardless of the offender's social status. From the prime minister and generals to officials and commoners, anyone who disobeys the ruler’s commands or violates the laws set by the ruler will face the death penalty without exception.” Furthermore, regarding penalties, Shang Yang emphasized the use of severe punishments to instill fear in both officials and commoners, ensuring their obedience to the ruler. “There is no better way to prevent crime than by applying severe punishments. When punishments are harsh and consistently enforced, people will not dare to break the law. As a result, the state will have no criminals to punish.”⁷

Implementation Mechanism: Introducing procedural justice and appointing jurists within the bureaucratic system. Military achievements were calculated based on the number of enemy heads collected in battle. To ensure fairness, Qin law stipulated: “During a ceasefire, enemy heads must be displayed for three days and inspected for three days. Once the general deems them valid, soldiers are awarded ranks based on their merits.”⁸  To guarantee that all laws were strictly enforced, Shang Yang mandated: “Jurists must be appointed in the royal palace, by the prime minister’s side, and in every district, county, and noble household. Once they receive the ruler’s orders, they must immediately study the laws. Officials and commoners seeking to understand the law should consult these jurists, ensuring that everyone in the land knows the law. Knowing that the people understand the law, officials will not dare to mistreat the populace, and the people will not dare to break the law. If officials mistreat the people unlawfully, the people can consult the jurists, who will explain the law. The people can then use the jurists’ explanation to warn the officials.”⁹

II. Integration: Incorporating Ritual Norms into Law

The law provided the monarch with a tool to control society through personal will, but it also isolated the ruler from other social strata, hindering cooperative governance. Such a form of rule was fragile.¹⁰  After the Qin Dynasty unified China, it collapsed by the time of its second ruler (221 BC–207 BC). The succeeding Han Dynasty, although inheriting Qin's legal codes,¹¹  gradually infused the spirit of ritual norms into legal interpretation and application, ensuring that kinship traditions were respected.

For example, the principle that punishments should not apply to high-ranking officials—“punishments shall not reach the ministers”—was endorsed by Emperor Wu of Han under the influence of Confucian official Jia Yi.¹²  Similarly, Confucian scholar Dong Zhongshu used Confucian classics, particularly the Spring and Autumn Annals, to adjudicate difficult legal cases, a practice respected by the Han judiciary.¹³  By the time of the Cao Wei period, the Emperor had decreed that the official interpretation of the law should be based on the commentary of a Confucian scholar.¹⁴  During the Jin Dynasty (266 AD–420 AD), the kinship-based "five degrees of mourning" (五服), which determined the closeness of familial relations, was formally established as a criterion for sentencing and punishment.¹⁵ The "eight deliberations" system (八议) was also clearly defined during this period.¹⁶ By the Tang Dynasty (618 AD–907 AD), the law was described as "conforming entirely to ritual norms."¹⁷  The Tang legal code was built on the principle that "virtue and ritual norms are the foundation of governance, while punishments are the instruments of governance." In other words, ritual norms served as the fundamental value system, while the law became the means to implement those norms.¹⁸

The integration of ritual norms and law benefited both the monarch and the kinship system. Law, created from the top down by the ruler, enforced kinship customs through the power of the state, ensuring that kinship traditions continued to play a stabilizing role in governance. Meanwhile, ritual norms, extending from the kinship system upward, transformed filial piety—obedience to the patriarch within the kinship network—into loyalty to the monarch, thereby providing the ruler’s governance with normative legitimacy.

From the Tang Dynasty to the Qing Dynasty (1644 AD–1912 AD), the integration of ritual norms and law in ancient Chinese legal traditions persisted. It was until the late Qing Dynasty, when China faced wars with modernized countries like Britain, that China was forced to embark on a new wave of legal reform. The characteristics of the law during the old period can be summarized in the following three aspects:

Functional Purpose: The primary objective was to consolidate governance by uniting the power of kinship groups. Despite the growing population from the Tang to the Qing, China's bureaucratic system remained relatively small in scale. Its ability to govern effectively relied on collaboration between state-appointed bureaucrats and local kinship forces.¹⁹  Therefore, although the law was created by the state, its protection extended beyond the state's interests to include kinship interests as well. A quintessential example is the "Ten Abominations" (十恶) crimes, which were heavily targeted in the legal codes of the Tang, Song, Ming, and Qing dynasties. Four of these crimes were offenses against the emperor and the state, such as treason, rebellion, defamation of the emperor, and disrupting state rituals. The other six offenses aimed to protect kinship principles, such as patricide, assaulting or killing one's grandparents or parents, reporting or cursing one's grandparents or parents, and committing incest with relatives. All of these "Ten Abominations" were equally protected by law, with no possibility of pardon.²⁰

Normative Content: Respecting hierarchical structures and emphasizing prevention and moral education. Confucianism, grounded in the kinship system, established a hierarchical order based on the closeness of blood relations, where individuals' behavior was guided by their position within the kinship network. Consequently, the law did not apply uniformly but rather considered these familial relationships. For example, in a Tang Dynasty case, an aunt beat her daughter-in-law to death. Initially, she was sentenced to death, but the Ministry of Punishment overturned this ruling based on ritual norms, reasoning that “when a superior beats an inferior, it does not constitute a fight, and it is inappropriate for a son to execute his mother for the sake of his wife.”²¹  These ritual norms not only mandated greater respect from those in subordinate positions toward their superiors but also called for greater care and responsibility from superiors toward subordinates.²² This principle of mutual obligations is reflected in the Confucian maxims: “The ruler is benevolent, the minister is loyal; the father is compassionate, the son is filial; the elder brother is kind, the younger brother is respectful.” The protection of these hierarchical kinship relations was intended to instill respect for the behavioral norms established by ritual, thereby preventing more severe offenses in the future. As the Confucian scholar Jia Yi put it, “Ritual norms prevent misconduct before it happens, while the law intervenes only after the fact.” This reflects the preventive role of ritual norms in maintaining social stability.²³

Implementation Mechanism: Confucian scholars serving as officials, administering both administrative and judicial duties. Although each dynasty established specialized judicial institutions at the central level—such as the Tingwei during the Han Dynasty, and the Ministry of Justice, Dali Court, and Censorate during the Sui and Tang Dynasties—important cases, particularly those involving the death penalty, would undergo a review by central administrative bodies. By the Ming and Qing periods, this had evolved into the "Joint Review by the Nine Ministers" (九卿会审), effectively merging administrative and judicial powers at the central level. This was even more pronounced at the local level, where the highest-ranking local administrator also served as the top judicial authority.  Furthermore, unlike the officials of the Eastern Zhou period, who came from diverse schools of thought such as Legalism or Confucianism, from the time of Emperor Wu of Han, Confucianism became the sole dominant ideology. Officials, who were all Confucian scholars, were responsible for both administration and adjudicating local disputes. Through this system, Confucian ritual norms became fully integrated into everyday life via legal mechanisms.

III. Conclusion

Ritual norms are rooted in kinship traditions, while law originates from the will of the state. The relationship between the two evolved from competition during the period between the Eastern Zhou and the Qin Dynasty to gradual integration from the Han Dynasty onward, eventually resulting in a stable fusion of the two. Law, as a set of formal rules issued by the state, was enforced through state power, while the normative values infused into the law were provided by ritual norms. These ritual norms not only encompassed kinship-based patriarchy but also extended to include loyalty to the monarch. In summary, under the formal rules of law, the values of loyalty and filial piety were merged, guiding the behavior of ancient Chinese people and regulating the society of ancient China.

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