China has long applied harsh sentences, which is why the government continues to execute and torture prisoners. This article examines the possible reasons and political concerns behind the harsh sanctions imposed on China from a human rights perspective. Underlying concerns include historical opposition to individual rights, traditional approaches to human rights protection, and political control of “strike hard” campaigns. The underlying reasons for the use of harsh penalties underscore the great need for the eventual abolition of harsh penalties in Chinese law and practice. The waning appeal of legalism became fully visible during the reign of Emperor Wu the Han (r. 141-87 BC). Although the emperor himself pursued an assertive domestic and foreign policy largely modeled on the Qin dynasty, he considered it wise to distance himself from Qin and legalism and, although superficially, to support Confucianism. During his reign, initial proposals were made to ban followers of Shang Yang, Shen Buhai and Han Fei from holding positions. Although these proposals had limited short-term consequences (Shang Yang`s legacy was still openly defended by the government representative during court debates in 81 BC), attitudes towards legalists changed in the long run. Few scholars have studied their writings; Even fewer had the courage to openly endorse their legacy. Like Qin himself (see Pines 2014a), legalism has now become a negative label associated with policies that the majority of imperial scholars opposed immensely: excessive harshness, oppression, court terror, imperial pride, etc. Self-identification as a disciple of Shang Yang or Han Fei has become a rarity, if not an impossibility.
Legalists believed that political institutions should be shaped in response to the realities of human behavior and that humans are inherently selfish and short-sighted. Thus, social harmony cannot be ensured by the recognition of the virtue of its ruler by the people, but only by strong state control and absolute obedience to authority. Legalists approved the government through a system of laws that imposed strict sanctions and rewards for certain behaviors. They emphasized the orientation of all human activities towards the goal of increasing the power of the ruler and the state. The brutal implementation of this policy by the authoritarian Qin dynasty led to the overthrow of that dynasty and the discrediting of legalistic philosophy in China. 1. In 213 BC, Shi Huangdi ordered the burning of books he deemed dangerous. Imagine being a “time traveler” who could return to ancient China and advise the first emperor.
What arguments would you give him to say that burning books is a bad idea? Second, the use of harsh sentences to keep crime rates low, while there was a strong emphasis on “hitting hard”, while the human rights of offenders or accused persons tended to be neglected. In some local areas, human rights have been “massively” violated [14]. The relationship between sanctions and the protection of human rights seems to be oversimplified. Harsh penalties that violate the human rights of potential perpetrators are justified by the fact that they respect the human rights of victims. This rationalization has resulted in a high risk of wrongful conviction and disproportionate sentences for offenders [15]. The imposition of a series of severe sanctions has in practice become an important evaluation criterion for political and legal employees. In the face of these problems, “hitting hard” seems to have been a political tool or movement that was to receive almost immediate punishment. Under the “strike hard” campaign, China lacked a long-term constructive anti-crime policy based on scientific criminology and an effective punitive policy used elsewhere to control crime.
The Qin union of 221 BC. J.-C. Could have become the triumph of legalism. The rise of Qin State began with Shang Yang; And by following its “agriculture and war” approach, this state has become rich and powerful enough to subdue its formidable enemies. Many aspects of Qin`s policy before and after imperial unification – such as the creation of an intrusive government apparatus, strict surveillance of officials, the use of impartial laws and regulations, etc. – were devised by Shang Yang, Shen Buhai, Han Fei and others. And this policy brought unprecedented success: after five centuries of endless war, the entire empire was united “under the sky” under one ruler! Proud of his success, the first emperor (221-210 BC) visited his newly acquired empire and erected stone stelae at the sites of the sacred mountains. In the stelae, he boasted of bringing unity, peace, stability and an orderly regime (Kern 2000; Pins, 2014b).
The dreams of generations of pre-imperial thinkers came true, and this was done primarily by following the recipes of those we now call “legalists.” The Qin Law established severe penalties for certain crimes. Penalties for less serious offenses included fines, caning, hard work in public works, and banishment to border regions. In more serious crimes, offenders were physically mutilated by tattooing their faces, whipping them, cutting off their noses, amputating one or both feet and sterilizing them. The death penalty was reserved for the worst criminals, especially those who threatened the emperor or the state. Execution was usually carried out by beheading. But in some cases, the criminal could be cut in half at the waist, cooked in a cauldron or torn by horse-drawn carts. China`s attitude towards the legal protection of human rights has also been influenced by China`s attitude towards the Chinese legal system. For much of Chinese history, the only form of law has been criminal law. The courts (didn`t exist, but government offices) were places where people would be punished, not where people would seek justice.
In fact, there was no court as an institution in ancient times, but administrators or government agencies at all levels exercised the functions of administration and justice in feudal China. The administration of justice is also, in all cases, a combination of law and disciplinary rite into one and all laws. There was no civil law in China until 1929, when the national government of the Republic of China issued the first civil code. Thus, the disciplinary rite has played an essential role in handling cases in order to gradually shape the traditional legal culture of “no prosecution, horror of complaints or their consideration as shameful”. There is no court or, in principle, no civil law to seek justice, but only criminal law is used to punish the accused and sometimes even the victims in order to deter and control crimes.