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Concept of lineage held sway in traditional Chinese law

SHANG HAIMING | 2020-07-22
(Chinese Social Sciences Today)
In ancient China, ancestor worship was the most important religious activity. The male offspring in the family assumed the crucial duty of worshipping their ancestors regularly, which impacted the design of the traditional Chinese legal system. Photo: FILE
Different from Christianity in the West, ancestor worship was the main religious form for Chinese people in ancient times. Under its influence, Chinese people did not regard themselves as independent individuals, but as one part of a family lineage, or xianghuo in Chinese, running through generations. In the background and over time, this unique Chinese perspective on life and its meaning profoundly influenced the design of the traditional Chinese legal system. 
Ancestor worship
In the Chinese view of human nature, a person is not regarded as a fixed entity, rather one must strike a dynamic balance with the rest of the social network. Chinese individuals do not see themselves as the center of the world because each person is woven into a vast network of social connections. Among these connections, family is the most important relationship unit. For the Chinese people who believed in ancestor worship, the family not only was integral to lineage, but also offered a path to transcendental experience.
Influenced by the concept of ancestor worship, traditional Chinese believed that a person has a soul. When a person dies, they become an ancestor of the family. In other words, normal death is not the end of a person’s life, because the soul of a person who dies of a natural cause transforms into an ancestor, so that the whole process of a deceased person’s funeral is essentially the process of their transformation from a person to an ancestor. The passing of the physical body does not mean the disappearance of one’s personality, and the soul in the afterlife needs to receive its descendants’ periodic worship, otherwise the ancestors will become hungry ghosts, and even beggars and robbers in the underworld. 
In this light, ancestor worship became the most important religious activity for Chinese people. The male offspring in the family assumed the crucial duty of worshipping their ancestors regularly. The sustainability of worshipping thus required the continuity of the family line. Only through the procreation of descendants, specifically sons and grandsons, could the continuation of the family line be preserved. This is why Chinese people took “having sons and grandsons fill the hall” and “four generations living under the same roof” as the great joy of life; while “having no children or grandchildren” became one of the most vicious curses in the Chinese language. For it is only through a family with sons that an individual can transcend death and attain eternal value and meaning in the continuity of the family line. Hence, Chinese people have formed a non-individualist view of life, or in other words, a family-based view of life and death.
The concept of a family line was at the core of Chinese people’s family-oriented view of life. The pursuit of the continuation of a family line had a profound impact on Chinese people’s way of thinking and the design of the traditional Chinese legal system. 
For example, the primary function of traditional Chinese marriage was to realize the continuation of a family line. Unlike modern people, who view marriage as the result of love, ancient people found it to be an indispensable link bridging their deceased ancestors and future generations, achieving the goal of procreation. 
In order to ensure the continuation of a family line, in the traditional Chinese legal system, bearing no children became one of the legal reasons for husbands to divorce their wives. If a married man was unable to have a son, he needed to adopt a son from close relatives of the same family name to continue the family line. 
View on death penalty
Based on Chinese people’s family-oriented view of life, a murder causes not only the deprivation of an individual life but also serious harm to a family, potentially even endangering the ontological value of the whole family. In ancient Chinese criminal law, the harsh punishment specifically for “killing three or more people of the same family” illustrates the concern for protecting family lines.
From the Tang Dynasty (618–907) onward, the law declared the “Ten Abominations” and that the punishments for these ten unpardonable crimes should never cease. Among them, rebellion, great betrayal, treason and great irreverence referred to the crimes against imperial power and national security, while evil disobedience, lack of filial piety, improper behavior, unrighteous behavior and incest described the crimes that people of a lower rank committed against those of a higher one. Only immoral behaviors such as killing three or more people of the same family who were not guilty of a capital crime and dismembering a body were listed as cruel and inhuman crimes because of the severity of their nature.
The reason why murdering three or more members of a family was considered extremely cruel was because in the ancient Chinese perspective, ancestor worship was by all means a big deal, and such a vendetta may destroy a whole family line such that the ancestors could no longer be taken care of by the next generation. 
For the ancient Chinese people who respected their ancestors and valued their family line, killing more than three people from one family was more serious than killing more than three people from different families. Therefore, the crime was singled out and severely punished. By examining the legislative changes of the crime of killing three members of a family in the Qing Dynasty (1616–1911), it can be found that the legislators protected the interests of the people by strengthening the punishment of such crimes.
In ancient Chinese law, the concern for family lines was reflected not only in the protection of the victim’s family line but also in that of the offender. In the case that the criminal descended directly from an elder who needed to be taken care of and the criminal’s family did not have other adult children, they could be exempted from the death penalty. This law began in the Northern Wei Dynasty (386–534) and lasted for more than 1,500 years until the reform of criminal law in the late Qing Dynasty. 
The legislative purpose of such a law was mainly to solve the problem of providing for the aged parents of the criminal, but it also played an objective role in protecting the family line of the criminal. 
Modern implications
In 2011, the Yao Jiaxin murder case captured nationwide attention. Yao, a university student who stabbed a young mother to death to cover up a hit-and-run accident, was sentenced to capital punishment. Internet users and academics have been divided in their opinions on Yao’s death sentence. While a majority lauded the decision for the sake of the victim’s family, some questioned the necessity of the death penalty, which, in their opinion, was too cruel for a 21-year-old man.
Zhu Suli, a law professor from Peking University, argued that the execution of Yao was not only the deprivation of Yao’s life; it also cost Yao’s parents their only son and thus the family line, which should be fully taken into account in modern law. He believed that the country should formulate corresponding criminal policies and judicial rules in response to the death penalty’s collateral damage.
However, he was also well aware that in today’s China, it’s more difficult for his proposition to draw support. In China, the children of one-child families make up the majority of homicide offenders nowadays; if they must all be spared, the present concept of justice would be severely jeopardized. The deep-rooted reason is that the concept of the family line once cherished by traditional Chinese is no longer recognized and upheld by the nation.
Since the end of the Qing Dynasty, especially since the New Culture Movement, China’s family concept has been subjected to unprecedented criticism. Enlightenment thinkers enthusiastically praised individualism, believing that “individualism in the West is conducive to developing an independent personality and the ability to help oneself,” whereas the Chinese family concept not only destroys the individual’s independent personality and freedom of will, but also deprives the individual of equal rights. More or less, the family is seen as an ugly place with original sin, and stepping out of the family is the first step toward personal independence against feudal ethics.
In today’s China, where science and equality are advocated, xianghuo is regarded as the legacy of feudal clan ideology, and it has a tendency to instrumentalize women. The concept of “the more sons, the more blessings” that derived from xianghuo is blamed as the cultural root of gender imbalance and rural poverty. In daily life, xianghuo has become a completely negative word. 
It is such a complete denial and criticism of xianghuo and such a break from tradition that has determined how the contemporary legal system no longer stresses the continuity of family lines in homicide cases.
Shang Haiming is from the Institute of Human Rights at Southwest University of Political Science and Law.
edited by YANG XUE