published on 02 January 2013
Did the Chinese attribute a secular or a religious origin to law? One influential view has strongly asserted the secular origin. Recently, some scholars have mounted a strong challenge, arguing that this view has overlooked or distorted a vital fragment of evidence that, in their opinion, shows conclusively that law had a religious origin. Before the texts adduced by the proponents of the two views, together with other evidence, are examined, certain preliminary issues need to be raised.
This paper is not concerned with an examination of the general issue of the relationship between law and religion in early China. It examines only the controversial question of the ascription of law to a divine creator or a religious source. Other issues, such as the significance of the inscription of early codes on bronze vessels, the occurrence of technical legal terms arguably borrowed from religious contexts, the use of oaths in the legal process or of covenants for the making of agreements, or the general system of belief, including religious, within which the Chinese legal system itself operated are here left aside. It is enough to say that the arguments deployed to prove some indissoluble connection between law and religion do not prove either that gods or spirits were believed to have ‘created’ law or that divine approval was necessary for its validity or authority. They show merely that knowledge of laws or legal transactions might be communicated to the gods or spirits, that the help of these entities might be sought to provide sanctions for the breach of agreements or the utterance of lies in law suits, or that religious belief played an important part in the way ordinary people as well as nobles or officials conducted their daily lives.
Journal of Asian Legal History, Vol.1 (2001)