The legal thought of Emperor Taizong of the Tang Dynasty (618-907)

• Author: Norman P. HO
• Pages: 584-625

FRONTIERS OF LAW IN CHINA

VOL. 12 DECEMBER 2017 NO. 4

DOI 10.3868/s050-006-017-0031-3

ARTICLE

THE LEGAL THOUGHT OF EMPEROR TAIZONG OF THE TANG DYNASTY (618–907)

Norman P. HO*

Abstract Little scholarly work has been done on understanding Taizong’s (one of

China’s most influential emperors) legal thought. Existing historiography has been

descriptive and has not fully contextualized Taizong’s legal thought in his broader

political thought. Furthermore, it has been influenced by the traditional bias in Tang

historiography as a whole, which has been adulatory toward Taizong’s reign. Drawing

from a variety of sources, including dynastic histories and Taizong’s writings, this article

seeks to complicate the existing historiography. It lays out key characteristics of

Taizong’s legal thought, situating them in the historical context in which Taizong

operated, as well as contextualizing them within his broader political thought, to present

a more balanced analysis. It will argue that Taizong was an emperor who was concerned

with legality, competent legal administration, and leniency in punishments. His actions

and rhetoric also suggest that he believed that law should be applied to the emperor’s

conduct as well. At the same time, this article also argues that Taizong should not be

viewed primarily as an innovative legal thinker or as someone with an ideological or

idealistic commitment to legal reform for its own sake. Rather, he was a man whose

views on law were greatly motivated by practical, political concerns, such as concerns

regarding the stability and legitimacy of his rule. More broadly, this article contributes to

the historiography of traditional Chinese legal history by complicating the so-called

dominant narrative of the process of “Confucianization of law” in premodern Chinese

history by highlighting the role that specific historical actors (such as Taizong) played in

that process.

Keywords legal theory, Chinese legal theory, Chinese legal history, jurisprudence, Tang

dynasty

INTRODUCTION .................................................................................................................... 585

I. TAIZONG THE MAN AND HIS REIGN......................................................................... 589

II. TAIZONG’S BROADER POLITICAL THOUGHT .......................................................... 593

III. TAIZONG’S LEGAL THOUGHT ................................................................................ 600

A. Views on Law-Making: Laws Should Be Clear and Concise ...........................601

* Norman P. HO, J.D., School of Law, New York University, New York, USA and A.M. in Regional

Studies-East Asia (Chinese History), Harvard University, Cambridge, USA; Associate Professor, Peking

University School of Transnational Law, Shenzhen 518055, China. Contact: nph225@nyu.edu

2017] THE LEGAL THOUGHT OF EMPEROR TAIZONG OF THE TANG DYNASTY (618–907) 585

B. Law as a Secondary Norm and Tool for Promoting the Primary Norms of

Benevolence and Righteousness...................................................................... 602

C. Laws Should Be Applied without Overdue Attention to the Background of the

Offender.......................................................................................................... 605

D. Philosophy on Punishment: A Preference for Leniency in Punishments,

Reduction of Corporal and Capital Punishment, and the Careful Application of

Capital Punishments ...................................................................................... 609

E. Careful Selection of Officials and Keeping an Open Ear to Ministers ...........615

F. Amnesties to Be Used Cautiously ....................................................................618

CONCLUSION........................................................................................................................ 624

INTRODUCTION

Much of the success of the Tang dynasty (618–907) has been attributed to Emperor

Taizong 唐太宗 (599–649; r. 626–649) — also known by his personal name, Li Shimin

李世民 — who served as the second emperor of the Tang dynasty and was and continues

to be regarded as one of Chinese history’s most renowned emperors. His reign, which he

himself termed the “Zhenguan” 贞观 (“Constancy Revealed” or sometimes translated as

“True Vision”) reign, has been seen as an exemplary period in government.1 He has been

described by traditional and modern historians alike as “the most heroic ruler of all

Chinese history,”2 a “moral sovereign who listened to his talented officials, implemented

wise policies, and sought to bring an age of prosperity and peace,”3 and a ruler who

possessed “keen intelligence, boundless energy” and great diligence.4 Of course, it is key

to remember that Taizong’s reign was not perfect, marked by failings both on personal

and policy fronts — namely, he forced his father from the throne, himself usurping the

throne after killing two brothers — but traditional historiography has been very kind to

him, instead focusing on his achievements and describing him as an open-minded, civil

ruler who embodied Confucian values and who also accepted criticism and remonstrance

from his ministers.5 Perhaps most significant, Taizong’s reign became an enduring

political symbol not only for the Tang but also for later dynasties as well. He also became

a cultural symbol and model, a ruler that other leaders sought to emulate — for example,

1 Jack W. Chen translates “Zhenguan” as “Constancy Revealed.” See Jack W. Chen, The Poetics of

Sovereignty: On Emperor Taizong of the Tang Dynasty, Harvard University Asia Center (Cambridge), at 2

(2010). Denis Twitchett translates “Zhenguan” as “True Vision.” See Denis Twitchett, How to Be an Emperor:

T’ang T’ai-tsung’s Vision of His Role, 9(1–2) Asia Major, 14 (1996).

2 Charles O. Hucker, China’s Imperial Past: An Introduction to Chinese History and Culture, Stanford

University Press (Stanford), at 140 (1975).

3 See Chen, fn. 1.

4 Howard J. Wechsler, T’ai-tsung (reign 626–649) the Consolidator, in Denis Twitchett & John K.

Fairbank, The Cambridge History of China, Volume 3: Sui and T’ang China (589–606) Part 1, Cambridge

University Press (Cambridge), at 190 (1979).

5 See Chen, fn. 1 at 32–33.

586 FRONTIERS OF LAW IN CHINA [Vol. 12: 584

later emperors, including Kublai Khan 忽必烈 (1215–1294; r. 1260–1294) and the

Emperor Qianlong 乾隆 (1711–1799; r. 1735–1796) attempted to model themselves after

Taizong.6

More specifically, Taizong is often considered to be an important figure in the

development of Chinese law. He himself took an active role in Tang dynasty’s legal

reform and legal development, ordering a review of the law code that had been

promulgated under his father and the first emperor of the Tang dynasty, Emperor Gaozu

高祖 (566–635, r. 618–626). Taizong’s revision of 637 laid the foundation for the

celebrated Tang Code of 653, which incorporated the important shuyi 疏议

(commentary). The Tang Code itself had a great influence on Chinese criminal law as a

model penal code for subsequent dynasties as well as kingdoms in Japan, Korea, and

Vietnam. For example, 30 to 40 percent of the Qing dynasty (1644–1912) criminal code

was composed of articles adopted directly from the Tang Code.7 Indeed, the traditional

narrative of Chinese legal history gives great weight to the Tang dynasty as a whole,

describing the development of Chinese law from the Han dynasty (202 B.C.–220 A.D.) to

the Sui dynasty (581–618) as a process of the so-called “Confucianization of law,”

meaning that Confucian values influenced the administration of law, and the content of li

礼 (ritual propriety) slowly made its way into formal legal provisions.8 It is in the Tang

when this process of the Confucianization of law reached its peak and completion, “with

the Tang Code representing an almost perfect expression of the legal recognition of

Confucian morality and the li.”9

Given the fame of Taizong, it is not surprising that multiple biographies of him have

been written, focusing mostly on his life, major historical events in his reign, and his

6 Id. at 47.

7 Wallace Johnson trans., The T’ang Code, Volume 1: General Principles, Princeton University Press

(Princeton), at 3 (1979). For an analysis of the influence of the Tang Code specifically on the law codes of

later Chinese dynasties, see Brian E. McKnight, T’ang Law and Later Law: The Roots of Continuity, 115(3)

Journal of the American Oriental Society, 410–420 (1995).

8 For an example of a representative work that sets forth this traditional narrative, see Albert Chen, An

Introduction to the Legal System of the People’s Republic of China (4th edition), LexisNexis (Hong Kong), at

16–17 (2011). The phrase “Confucianization of Law” was first coined by Chinese legal historian T’ung-tsu

Ch’ü; see T’ung-tsu Chü, Law and Society in Traditional China, Mouton (Paris & the Hague), (1961). I am

grateful to Paul Goldin for this point; see Paul Goldin, Han Law and the Regulation of Interpersonal

Relations: “The Confucianization of Law” Revisited, 25(1) Asia Major, 2–3 (2012). Goldin defines

“Confucianization of Law” as the “process by which the legal system, comprising not only statutes and

ordinances, but also principles of legal interpretation and legal theorizing, came to reflect the view that the

law must uphold proper interactions among people, in accordance with their respective relationships, in order

to bring about an orderly society.” See Goldin, id. at 6. For a scholarly reassessment of the “Confucianization

of law” label and narrative, see Geoffrey MacCormack, A Reassessment of “Confucianization of the Law”

from the Han to the T’ang, in LIU Liyan, 中国史新论: 法律史分册 (New Discussions on Chinese History:

Legal History), LinkingBooks (Taipei), at 397–442 (2008).

9 See Chen, fn. 8 at 16–17.