Law and Religion: Law and Religion in Chinese Religions
LAW AND RELIGION: LAW AND RELIGION IN CHINESE RELIGIONS
Over the past three thousand years, religion and law in China have been contemporaneous forms of social control. Many of the multiple forms of dynamics between the two have centuries-old roots.
Any thorough discussion of law and religion in China that attempted to cover a three thousand year time span would require multiple volumes. Even then, source limitations engender further obstacles to comprehensiveness. For instance, for one period there may be complete legal codes, whereas for another only ritualistic records of legal events might remain. Some evidence comes from government sources, others are products of popular religion. Cultural spheres may also affect practice and belief. Nonetheless, certain recurrent and often overlapping patterns are detectable in the relationships between law and religion in China. For instance, there is the relationship between law and the spirit realm, where religious authority often enhances legal authority, or, may serve as a deterrent to illegal behavior. Then there is law as regulator of religious bodies, often as protection for the state against the potential challenge of religious authority and popular superstition. There is also the situation wherein law helps to enforce the implementation of religious practices and ritual protocol. Conversely, religion may relate to law inasmuch as it may help to further politico-legal aims. Other associations between law and religion, in a more broad sense, would be law as an embodiment of custom; ritual prescriptions and proscriptions as para-legal behavior; and law modeled on and implemented in harmony with the cosmos.
"Religion" in China encompasses what in the Judeo-Christian tradition might be considered secular behavior. While Buddhism, Daoism, Christianity, Islam, Judaism, Manichaeism, and Zoroastrianism are all woven to varying degrees into the fabric of Chinese history, the most pervasive features of Chinese culture continue to be its patriarchal social order and its li, which can be defined as "ritual, rites, decorum." Li encompasses a range of behavior, including the correct performance of religious ritual; religious and secular ceremonial behavior and institutions that enable a harmonious, usually Confucian society; and socially correct deportment, especially the observance of obligations between superior and inferior. Many manifestations of li have some religious and certainly spiritual dimensions to them. The patriarchal order (itself supported by ritual texts and behavior) was at the core of ancestor worship, which, at times, was intimately connected to notions of legal authority, punishment, and criminality.
Li worked sometimes in concert with and sometimes separately from law to form the framework for social control. As a check on improper behavior (which is often but not always simultaneously illegal behavior), li served as an ever-present, sometimes quasi-legal, sometimes para-legal force. And even though a fundamental tenet of Confucian ideology presumed a dichotomy between li and law (fa ), still, li broadly defined sometimes provided validation for legal proceedings. At other times, li was itself protected by the law.
At the same time that the referent to "religion" in this entry necessarily changes according to the materials available for study, so does that of "law." Law was often inseparable from the ruling political authority, which thus also served as the legislative authority, law enforcer, and/or lawgiver. In this entry, reference is made to a wide range of legal behavior, documents, and legislation.
Categories of Relationships between Law and Religion
The following proposed categories of relationship are explored here as a means to present in a manageable way an overwhelming amount of information about a highly intricate web of relationships between law and religion.
Law and the spirit realm
In the early historical period in China, the division between religion on the one hand, and politics and law on the other was blurred. The first potentially legal information dates to approximately 1200 bce and comes to us from the oracle-bone inscriptions of the late Shang state (c. 1200–1050 bce). These were divinations to the king's deceased ancestors conducted by the king and his diviners, the contents and sometimes the results of which were later inscribed on turtle plastrons or cattle scapulae. It was thought that the ancestors not only could communicate with the God on High, but also that they were among the significant otherwordly powers that could influence earthly happenings and guide the king in his decision-making. These politico-religious writings are the only extant documents of significant length from the Shang period, but they were certainly not the only ones to have existed. Legal documents probably would have been part of an estimated vast administrative corpus, and these likely would have served as the primary documents recording legal activity and rules. Thus, while a mere handful of the approximately 200,000 known oracle-bone inscriptions seek advice from the spirit world on implementing punishments or on conducting legal matters—and such an interpretation of those inscriptions is not definitive—they cannot necessarily be considered representative of all the legal activity occurring during the late Shang. At the same time, we cannot ignore the implications of this sacred form of ancestral communication on the validation of politico-legal behavior.
The Shang were overthrown by the Zhou around 1150 bce, an event recorded in many historical texts, some of which are closely contemporary to the actual conquest. Much of the language in these documents couches the Shang downfall and subsequent Zhou conquest in legalistic terms. The fall of the Shang was viewed as a result of moral decline and criminality on the part of the last Shang king, while the conquest by the Zhou was the punishment for such behavior. In order to legitimate control over the subjugated Shang people, the Zhou utilized a rhetorical device, "the Mandate of Heaven" (tian ming ). It was not that the Zhou invaded and overthrew the Shang, but rather Heaven (tian ), acting much like judge and jury, decreed that the privilege to rule be stripped from the Shang and transferred to the Zhou. Although the Shang did not share with the Zhou the belief in Heaven as the most potent deity, the Zhou's reliance on this rhetorical religious device must have bolstered their claim to power.
Dating to the Western Zhou dynasty (1050–770 bce) are a couple dozen ritual bronze vessels inscribed with legalistic contents: appointments to positions entailing legal duties, records of court cases, land transfers, contractual agreements, and private sales transactions. Again, these inscriptions not only comprise a miniscule fraction of all inscribed ritual vessels, they also would not have been the primary vehicle for recording legal matters. Bronze inscriptions tended to be records of noteworthy events that were transmitted to deceased ancestors of the vessel owner through their ritual cooking and feasting using the vessel on which the inscription was cast. Of interest here is the use of religious rhetoric in legal contexts. While Western Zhou legal proceedings were conducted with a high degree of rationality and secularity, the inclusion of religious rhetoric in legal activities may have enabled the legal process and legal decisions to invoke age-old religious authority to lend validity to earthly proceedings and humanly determined verdicts. The ritually enacted transmission of legal decisions to the ancestors also would have authorized the proceedings and their outcomes.
Oaths containing self-imprecations are found in both legal and religious contexts. Those sworn by losing litigants paralleled the syntactical structure of later pledge and loyalty texts from the early fifth century bce state of Jin, which were spirit-sanctioned contracts between individuals of a common lineage. These covenant texts, inscribed on jade and stone tablets and later buried in pits containing animal sacrifices, were appeals to the ancestral spirits of Jin's deceased rulers to help the covenantor serve the covenant lord and protect the Jin state. They called down punishment from the ancestral spirit world upon the covenantor and his lineage should he breach the stipulations he swore to uphold, thus functioning as a means of spirit-sanctioned deterrence and para-legal enforcement.
Connections between the spirit world and earthly affairs are evidenced in some excavated sources dating to the Warring States period (from the mid-fifth century to 221 bce). In an inscription on a jade tablet from the state of Qin, the owner, in order to petition the spirit of Hua Mountain to cure his disease, first stipulates that he is "without guilt." Almanacs from throughout the Eastern Zhou period also testify to the belief that events could be determined by unearthly powers through divination. Many of the entries in these texts indicate that a robber may be caught on a particular day, or that a crime will occur. Some even provide partial names of robbers, and/or descriptions of their personalities and physical features.
Chinese folk religion which developed from at least the Han period (206 bce–220 ce), and especially folk Buddhism of the sixth through ninth centuries ce, gradually incorporated supernatural laws and elaborate spirit worlds that were expected to be morally superior to the earthly realm. They contained references to multiple hells for earthly offenses. These were populated by lawyers and judges, and trials were conducted therein. Certain hells existed to mete out additional punishment on criminals who had already been executed on earth for their crimes. The deep-rooted nature of such popular beliefs necessarily bolstered earthly propensities to obey the law.
The interplay between the two spheres of law and religion was most marked with the notion that the head of state was often simultaneously the supreme religious authority. A person's ancestors were powerful in their own family's lives, but those of a ruling lineage could affect the entire state. This is especially evident when the two authorities came together in the person of the one true king or emperor—titled "The Son of Heaven" (tian zi )—who, theoretically if not in practice, usually also stood at the apex of the legal bureaucracy. Moral rectitude, and correct performance of state-level secular and religious rituals were among the factors validating the emperor's right to rule as well as the decisions (legal and otherwise) that he made. Such was the case, for example, of the feng and shan sacrifices dedicated to Heaven and Earth, or the fasting rituals of absolution performed by the Qing (1644–1911) emperors at the Temple of Heaven.
Law as regulator of religious authority and enforcer of ritual
China's ruling powers periodically have had to grapple with how to protect themselves from the omnipresent threat of insurgence from religious groups, primarily unofficial ones, as well as how to keep in check the authority of formal and widely practiced religions. The earliest extant, complete legal code which was generated by a central government dates to the Tang dynasty (618–907). The Tang Code evinces what was a lasting practice of close supervision by and even interference from the central government in religious affairs. The 737 revision of the imperial code stipulated legal provisions governing religious activity, a practice that continues to this day under the constitution. The banning of heterodox (i.e., not government-approved) practices, such as witchcraft, fortune-telling, prophecies, treating disease by exorcism, and supplications for offspring was common, especially when such practices had political implications. Examples can be found in Articles 161, 162, and 165 of the Great Qing Code, and in the 1999 Decision of the Standing Committee of the National People's Congress. Article 36 of the 1982 constitution has similar implications.
Since the Six Dynasties period, the clergy also were subject to varying forms of bureaucratic control. They enjoyed certain privileges, such as exemption from land tax on their monasteries and temples, and reprieves from corvée labor (state-mandated) and military conscription. Thus, religious clergy and institutions came to be considered by many to be societal parasites. Buddhism presented a further problem. Upon ordination, its monks and nuns were required to sever all ties and obligations with their families, society, and the state, and instead to operate under Buddhism's own hierarchy and system of property ownership. Such autonomy was antagonistic to a culture based in large part upon a complex formula of social and familial relationships and obligations. Legislation specifically aimed at the clergy is found in the Tang, Song (960–1279), Ming (1368–1644), and Qing codes. For example, the Tang and Song codes incorporate statutes governing property ownership by religious clergy, as well as the relations between the clergy and the state. Similarly, Article 176 of the Great Qing Code stipulates that Buddhist and Daoist clergy must observe proper Confucian ritual observances for their parents and sacrifices to their ancestors. This can be seen as a means to keep religious orders under the control of the greater political order, and of protecting the patriarchal Confucian social order.
Weakening of religious authority is seen in other ways, too. According to the reconstructed Yuan Code of 1291, special jurisdiction was granted to Buddhist and Daoist clergy. Minor offenses by a clergy member fell within the jurisdiction of the temple, while serious offenses (such as sexual assault, homicide, robbery) were to be tried in a court of law. During the Song (960–1279), the government repeatedly tried to prohibit Manichaeism, whose adherents were often rebelling against the state. By separating its leaders from their followers, and by regulating their gatherings, the state succeeded in slowly diffusing Manichaeism's threat to the central government. (This practice has been employed repeatedly throughout China's history, more recently with the exile of Tibetan Buddhism's spiritual leader, the Dalai Lama.) State intervention in religion is also evident in the conferring of living buddhas. During the Ming dynasty, the state assumed legal jurisdiction over the identification of the reincarnation of living buddhas and the approval of their enthronement. This was done in accordance with established religious rituals and historical conventions of Tibetan Buddhism. This practice was followed by the Qing, and is still upheld today under the jurisdiction of the State Council's Bureau of Religious Affairs.
The regulation by law of religious acts also had another dimension. At times throughout China's history it would seem that the social force behind ritual observances was not always sufficient. In the Tang and later codes, articles were included which enforced certain ritual activities. The Ming and Qing codes include entire sections concerning the Board of Rites (li bu ). The Tang Code also contains articles which essayed to enforce officials to properly conduct their duties regarding the imperial sacrifices; to ensure the practice of the purification ritual according to the ritual schedule; to protect sacrificial objects and structures; to punish non-observance of rules of proper ceremony (li ) and demeanor (yi ); to enforce proper mourning for parents and husbands, proper care for ill or critically disabled parents, and proper burial etiquette; and to uphold ritually correct village wine-drinking activities. All of these behaviors are among those that were generally dictated by li.
The Tang, Song, and Qing codes also invoked ritual texts of previous periods to support laws regulating extra-religious activities. For instance, Song legal conservatives appealed to Warring States ritual texts as support for reduction of penalties. The Great Qing Code also incorporated many stipulations from earlier ritual texts, especially the Zhou li (Rituals of Zhou), as well as some general ritual observances. Certain legal organs protected the presumed chastity of women of a particular social standing by requiring a male relative to appear in court in her stead. And while the state did not sanction the long-standing custom of vendetta, the Tang and Song codes, following the example of preceding dynasties, did grant some leniency for sons or grandsons who attempted to avenge the murder of their elders. Under the Song, even more lenient treatment than that prescribed by law was sometimes granted.
Religion and law in Communist China
The relationship between religion and law in Communist China (1949 to the present) is a complex one, and incorporates historical antecedents like those discussed above. With the exception of the Cultural Revolution (1966–1976), when all religious activity was banned, religious freedom is protected under the Chinese Constitution as well as under the criminal, civil, clectoral, military, and compulsory education laws. The central government instated departments of religious affairs to ensure that this freedom is honored. Additionally, Article 36 of the constitution grants equal rights and protection from discrimination to citizens practicing "normal religion," that is, those five religions recognized by the state (Buddhism, Daoism, Catholicism, Christianity/Protestantism, and Islam). Parties, including state officials, who harm the religious feelings or freedom of an individual or group are to be dealt with according to the law, although this is not always carried out.
Government-recognized religious organizations receive financial assistance from central and local governments for repairs to churches, mosques, temples, and monasteries, as well as tax exemptions for land and buildings used for religious purposes. The Chinese government also offers services for Chinese Muslims who wish to make the pilgrimage to Mecca, and financial support for the printing of religious scriptures.
On the surface it appears that legal institutions protect religious freedom. However, this protection is not without qualification. Religious freedom is subordinate to China's political aims. For example, one of the tenets underpinning Communist Party rule is the building of "spiritual civilization," specifically, "socialist spiritual civilization," a role that the state itself strives to monopolize rather than leave to independent religious organizations. The ultimate goal of the party is to make religion obsolete in China. However, current trends in various localities, wherein the prestige of and interest in joining the Communist Party is waning as that of religion is on the rise, suggest that the people prefer religious organizations in the role of spiritual leaders. China's constitution is written in such a way as to permit the state broad control over religious freedom as a means of ensuring the state's "supremacy," and of stemming the tide of any movements that are potentially harmful to the state. It stipulates that no individual may use religious beliefs or activities to undermine the government. This includes disrupting public order, interfering with the state educational system, or harming another citizen. Local and central governments also grant or deny permission for the restoration and opening of places of worship. Most importantly, only religions that are formally recognized by the state may exist, and these must be law-abiding and patriotic by supporting the Communist leadership and socialist system. Furthermore, their leadership structures must be identifiable, possibly so that they may be more easily controlled by the state. Government suspicion of religions or cultic movements has ample historical precedent. The Five Pecks of Rice Rebellion of 184, and the Yellow Turban Rebellion of 190, are among the earlier examples in a long line of religiously inspired uprisings that sought to challenge State authority. The government's repeated suppression and regulation of Muslim religious activities in Xinjiang are considered by the state to be legal because they are linked to separatist activities. Similar concerns influence government control of Buddhism in Tibet. The recent crackdown on Falun Gong practitioners may, perhaps, also be viewed in this light.
Religion's subordination to China's political agenda is seen in other ways as well. For example, the Vatican is considered first and foremost to be a political entity, and religious interaction with it will only be permitted once it supports China's "one-country policy" by severing relations with Taiwan. China's religious bodies must also be self-governing and independent of foreign control, although it does permit interaction between Chinese and foreign religious bodies when the latter recognizes the former as their equals. Where Catholicism is concerned, this effectively prevents relations between the Vatican and the Chinese Catholic Church, as the state's policy requires that its bishops be consecrated by the Chinese church. Furthermore, each of the five recognized religions is monitored by a "patriotic association" (which, among other things, approves religious leaders for applicant congregations), and they, in turn, are responsible to the state's Bureau of Religious Affairs. All religious activity and fixed places of worship which are not registered with the appropriate patriotic association are considered illegal. Additionally, Communist Party members are prohibited from practicing even state-recognized religions.
The preceding discussion and sample evidence serve as a springboard for further investigation into the complex relationship between law and religion from the late second millennium bce. At times symbiotic, at times antagonistic, law and religion have been two indispensable elements of social control in China. While the specific dynamics of their relationship have varied according to historical and social circumstances, many have endured for centuries, if not millennia.
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Laura A. Skosey (2005)