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.

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.

To better understand the development of traditional Chinese law, 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. 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. 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”) starting from the Han Dynasty in 167 B.C. (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. This Article specifically identifies and covers the MCP debates at the following points in time as set forth in the table below (for ease of reference):

This Article also provides full English translations of many of these debates, the full text of which have never (to my best knowledge) been previously fully translated into any Western language. Furthermore, this Article (to my best knowledge) represents the first major, more comprehensive scholarly study of debates over the reinstatement of MCPs in any Western language. In addition, while there is very important Chinese-language scholarship on these debates, most of the existing Chinese-language scholarship focus on debates over MCPs in one particular dynasty and/or the positions of one particular thinker, and therefore do not study the debates over a longer time frame; or, if they take a longer time view, they do not look deeply into the thoughts of specific officials and/or how the debates changed or stayed the same. Therefore, this Article hopes to be a more comprehensive study of the debates over MCPs in traditional Chinese law.

I make the following arguments in this Article. First, from the Han Dynasty to the Song Dynasty, the debates over the reinstatement of MCPs and the ideas and positions presented therein did not really change (both in the anti-MCP and pro-MCP reinstatement camps), which arguably shows a continuity of views regarding the purpose of punishment throughout traditional Chinese legal thought. The second argument aims to connect the debates over the reinstatement of MCPs with the legal theory scholarly literature on punishment theory more broadly. Specifically, I argue that the MCP debates—as a window into understanding Chinese legal thought more generally—show that officials in traditional China justified punishment primarily (but not exclusively) on what punishment theorists would describe as consequentialist bases (i.e., justifying certain punishment based on perceived beneficial consequences such punishment would bring or lead to). In the end, the MCP debates may reveal what is perhaps more unique about traditional Chinese theories of punishment (as compared to Western theories of punishment)—that punishment was also justified based on appeals to the authority of antiquity and practices in antiquity. In fact, as this Article will also show, one thing almost all the participating officials (both pro-MCP and anti-MCP) had in common is that they sought to justify their positions on history and antiquity.

This Article proceeds as follows: Part I provides an overview of MCPs, their history, and their significance in traditional Chinese law more generally. Part II covers the recorded positions in the MCP debates in the Han Dynasty, while Part III looks at the recorded positions in the MCP debates in the Jin Dynasty. Part IV covers a recorded position in the MCP debates in the Tang Dynasty, and Part V covers two important recorded positions in the MCP debate in the Song Dynasty. The Article then concludes in Part VI.