Society and Culture of The Han Dynasty - Laws and Customs

Laws and Customs

Further information: Government of the Han Dynasty and Traditional Chinese law

By the Han Dynasty, written law had matured from its archaic form based largely on natural law and social customs into a rational corpus influenced by politics and based on positive law. However, the Han Dynasty law code established by Chancellor Xiao He (d. 193 BCE) was largely an extension of an existing Qin Dynasty law code. Evidence for this includes archaeological finds at Qin-era Shuihudi and Han-era Zhangjiashan. The nine chapters of the law code consisted of statutes which dealt with criminality, while two of these chapters dealt with court procedure. Although it survives only in small fragments, it was allegedly a massive written work on 960 written scrolls. The code had 26,272 articles written in 7,732,200 words that outlined punishments. There were 490 articles on the death penalty alone which contained 1,882 offenses and 3,472 analogies or pieces of case law.

The county magistrate and commandery administrator were the official court judges of the county and commandery, respectively. Their jurisdictions overlapped, yet the commandery administrator only interfered in county court cases when necessary; it was generally agreed that whoever arrested a criminal first would be the first to judge him or her. If a commandery-level court case could not be resolved, the central government's Commandant of Justice was the final authority of appeal before the emperor. Yet he most often dealt with cases of political rebels and regicide in regards to kings, marquesses, and high officials. Above the Commandant was the emperor, the supreme judge and lawgiver.

As with previous codes, Han law distinguished what should be considered murderous killings (with malice and foresight), wittingly killing, killing by mistake, and killing by accident. Although a father was the undisputed head of the family, he was not allowed to mutilate or kill any of its members as punishment; if he did, he would be tried for physical assault or murder, respectively. Yet not all murders were given the same sentence, since relation and circumstance were considered in the sentencing. For example, A father would be given a much less severe sentence for murdering a son than if a son murdered his father. Women had certain rights under Han law. It was against the law for husbands to physically abuse their wives. Rape cases were also commonly filed in court and were punished by Han law. Women could level charges against men in court, while it was commonly accepted in Han jurisprudence that women were capable of telling the truth in court.

Sometimes criminals were beaten with the bastinado to gain confessions, but Han scholars argued that torture was not the best means of gaining confession, while court conferences were called into session to decide how many strokes should be given and what size the stick should be so as not to cause permanent injury. Imprisonment was an unheard of form of punishment during Han; common punishments were the death penalty by beheading, periods of forced hard labor for convicts, exile, or monetary fines. Mutilating punishments also existed in early Han, borrowed from previous practice in Qin. This included tattooing the face, cutting off the nose, castration, and amputation of one or both feet, yet by 167 BCE these were abolished in favor of lengthy floggings with the bastinado. Further reforms were implemented by the first year of Emperor Jing's (r. 154–141 BCE) reign which decreased the amount of strokes a prisoner could receive from the bastinado. Starting in 195 BCE, those aged seventy and older were exempt from mutilating punishments. Further reforms exempted those aged seventy and older from harsh interrogation methods in cases other than false accusation and murder.

Although modern scholars know of some surviving cases where Han law dealt with commerce and domestic affairs, the spheres of trade (outside the monopolies) and the family were still largely governed by age-old social customs. Many ways in which family relations were conducted during the Han were already stipulated in the ancient Confucian canon, especially in the Book of Rites. This became accepted as the mainstream guide to ethics and custom. In terms of private commercial contracts, they usually entailed information on the goods transferred, the amount paid, the names of the buyer and seller, the date of transfer and the signatures of witnesses.