Debates on Mutilating Corporal Punishments and Theories of Punishment in Traditional Chinese Legal Thought

• Author: Norman P. Ho
• Pages: 44-90

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44 TSINGHUA CHINA LAW REVIEW [Vol. 11:43

DEBATES ON MUTILATING CORPORAL PUNISHMENTS

AND THEORIES OF PUNISHMENT

IN TRADITIONAL CHINESE LEGAL THOUGHT

Norman P. HO

Abstract

One of the most enduring jurisprudential debates throughout Chinese legal history concerned

mutilating corporal punishments (hereinafter referred to as “MCPs”; in Chinese, rouxing

肉

刑

). MCPs—which can trace their roots back to Chinese high antiquity—included tattooing on

the face (mo

墨

), amputation of the nose (yi

劓

), amputation of the left foot, right foot, o r

both (yue

刖

), and castration (gong

宫

). MCPs were used by the states throughout the

Warring States Period and into the Qin Dynasty. They were abolished b y Emperor Wen of the

Han Dynasty in 167 B.C. and replaced with punishments such as penal servitude, hard labor,

and beating. However, for several centuries after their abolition, there continued to be calls

by certain officials for the reinstatement of MCPs in the criminal law. This Article sets forth

and explains the recorded key debates (i.e., debates and/or positions of which we have

historical records of what was actually said/written by officials participating in the debates),

starting from the Han Dynasty (i.e., Emperor Wen’s decision to abolish the MCPs), and

proceeding into the later Han Dynasty, the Three Kingdoms and Wei-Jin periods, the Tang

Dynasty, and the Song Dynasty. This Article also provides full translations of the debates that

have never (to my best knowledge) been previously translated into English. This Article makes

the following arguments: first, from the Han Dynasty to the Song Dynasty, the debates and the

ideas presented therein did not really change (both in the anti-MCP reinstatement and pro-

MCP reinstatement camps), which shows that there was a continuity of views regarding the

purpose of punishment throughout premodern Chinese legal thought. The second argument

connects the MCP debates with the literature on punishment theory more broadly. I argue that

the MCP debates—as a window into understanding Chinese legal thought more generally—

show that officials in premodern China justified punishment primarily on what we would

describe as “consequentialist” bases, using the language of punishment theory scholarship. In

the end, the MCP debates perhaps reveal what is unique about Chinese theories of punishment

(as compared to Western theories of punishment)—that punishment was also justified based

on appeals to the authority of history and antiquity.

I. INTRODUCTION

One of the best ways we can understand the legal thought and

legal culture of any jurisdiction is to identify and examine its

important jurisprudential debates, especially those that continued and

persevered throughout various time periods. Doing so gives us a

glimpse into how actors in the legal system thought about law and

how such beliefs and assumptions about law changed (or remained

static) in the development of that jurisdiction’s legal system.

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2018] MUTILATING CORPORAL PUNISHMENTS 45

To better understand the development of traditional Chinese law,1

this Article identifies and focuses on one of the most enduring

jurisprudential debates in traditional Chinese law – debates on

mutilating corporal punishments (hereinafter referred to as “MCPs”)

in Chinese law and specifically, whether they should be reinstated in

the penal law. In these debates, MCPs generally referred to the

punishments of tattooing (mo 墨), amputation of the nose (yi 劓),

amputation of one (right or left) foot or both feet (yue 刖), and

castration (gong 宫). The origins of such MCPs can be traced to the

sage kings in Chinese prehistory, where they were widely used under

the penal laws of the Zhou (1045 – 221 B.C.) and Qin (221 – 206

B.C.) dynasties.2 They were officially abolished by Emperor Wen of

the Han Dynasty (r. 180 – 157 B.C.) in 167 B.C. and replaced with

other punishments.3 However, after Emperor Wen’s abolition of

MCPs, there were continued calls by various officials at the highest

levels of the government bureaucracy from the Han Dynasty through

the Song Dynasty for the reinstatement of MCPs in the penal law.

They were debated by other high-ranking officials who believed that

MCPs should remain abolished.

This Article sets forth and analyzes the content of such debates

and positions expressed by officials therein that have been recorded

in Chinese historical sources (i.e., the debates over MCPs and

positions expressed therein of which we have sufficiently detailed

historical records of what was actually said and/or written by

officials participating in the debates and not just brief sentences in

the historical record that simply record “official A was against

reinstating MCPs”)4 starting from the Han Dynasty in 167 B.C.

1 By “traditional Chinese law” (or its various permutations, such as the “traditional Chinese legal

system” or “traditional Chinese l egal thought”), I refer to Chinese law in the period from Chinese

antiquity up to 1911 (i.e., dynastic Chinese law).

2 Geoffrey MacCormack, Punishment: Chinese Law, Overview, 5 THE OXFORD INTERNATIONAL

ENCYCLOPEDIA OF LEGAL HISTORY 24, 24-26 (Stanley N. Katz ed., 2009).

3 KLAUS MÜHLHAHN, CRIMINAL JUSTICE IN CHINA: A HISTORY 30 (2009).

4 Unfortunately, historical records do not always give us perfect, complete records of each side in a

debate at a particular point in time, so we may only have the recorded position of only one particular

side in some cases. This, however, does not prevent us from analyzing the various positions in the pro-

and anti-MCP camps and how they have changed over time. This Article does not purport to provide an

account of every single MCP debate from the Han to Song Dynasty. But, I have tried to identify what I

consider to be the major contributions to this debate.

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46 TSINGHUA CHINA LAW REVIEW [Vol. 11:43

(Emperor Wen’s abolition of MCPs), and proceeding into the later

Han Dynasty, the Three Kingdoms & Jin dynasty, the Tang Dynasty,

and the Song Dynasty.5 This Article specifically identifies and

covers the MCP debates at the following points in time as set forth in

the table6 below (for ease of reference):

Dynasty and Year

Official(s) and Positions

Han Dynasty, 167 B.C.

Emperor Wen of the Han Dynasty 汉文帝

(anti-MCP)7

Han Dynasty, ~111 A.D.

Ban Gu 班固 (32 – 92 A.D.) (more pro-

MCP)8

Han Dynasty, ~208 A.D.

Kong Rong 孔融 (153 – 208 A.D.) (anti-

MCP)

Jin Dynasty, ~289 A.D.

Liu Song 刘颂 (d. 300 A.D.) (pro-MCP)

Jin Dynasty, ~318 A.D.

Wei Zhan 卫展 (c. 4th century A.D.) (pro-

MCP)

Wang Dao 王导 (276 – 339 A.D.), He Xun

贺循 (260 – 319 A.D.), Ji Zhan 纪瞻 (253

– 324 A.D.) et al. (pro-MCP)

Diao Xie 刁协 (d. 322 A.D.), Xue Jian 薛

兼 (255 – 322 A.D.) et al. (lean toward pro-

5 This Article stops at the Song Dynasty (inclusive) as most of the recorded (and most often studied

in the Chinese-language scholarly literature) pivotal debates on MCPs occurred from the Han to Song

dynasties, especially in the Han-Tang transition. This is not to say that there were no debates over the

restitution of MCPs in later dynasties, but they are outside the purview of this Article. To cover every

single Chinese dynasty from the Han Dynasty to the end of the Qing Dynasty would likely require a

book-length treatment.

6 The table below is adapted from the table in Cai Liying (蔡丽影), Xilun Wei Jin Shiqi Huifu

Rouxing zhi Zheng (析论魏晋时期恢复肉刑之争) [An Analysis and Discussion of MCP Debates in the

Wei-Jin Period], 4 SHANGPIN YU ZHILIANG (商品与质量) [THE MERCHANDISE AND QUALITY] 158

(2012). I will not reproduce the Chinese characters or birth/death years for the officials in later sections

of t he Article. Note also that the text in brackets in this citation and all other citations to Chinese-

language sources are English translations of the title of t he Chinese-language article, book, and/or

journal. The English translations of c itation information are for reference only. Wherever possible I

have tried to use the English translations actually used by the Chinese-language article, book, and/or

journal (even if such translation has syntax or errors). Otherwise, the titles are translated by myself.

7 In this Article, for the sake of convenience, I use the terms “anti-MCP” to refer to positions which

opposed the reinstatement of MCPs. However, to save space, rather than write out “anti-reinstatement

of MCPs” each time, I have decided to simply use “anti-MCP.”

8 In this Article, for the sake of convenience, I use the terms “pro-MCP” to refer to positions which

supported the reinstatement of MCPs. However, to save space, rather than write out “pro-reinstatement

of MCPs” each time, I have decided to simply use “pro-MCP.”