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

48 Pages Posted: 11 Jan 2019

See all articles by Norman Ho

Norman Ho

Peking University School of Transnational Law

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, or 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 by 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.

Keywords: theories of punishment, Chinese law, Chinese legal theory, punishment

Suggested Citation

Ho, Norman, Debates on Mutilating Corporal Punishments and Theories of Punishment in Traditional Chinese Legal Thought. Tsinghua China Law Review, Vol. 11, No. 1, 2018, Available at SSRN: https://ssrn.com/abstract=3311546

Norman Ho (Contact Author)

Peking University School of Transnational Law ( email )

Peking University Shenzhen Graduate School
University Town, Xili, Nanshan District
Shenzhen, Guangdong 518055
China

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