Family and Law in Former Han China (206 BCE – 8 CE)

Abstract

This paper examines the controversy surrounding two Han laws that concern the relatives of criminals. The one law ordered that, in certain cases, the relatives of a criminal should be tried and punished together with the criminal (‘coadjudication’). The other stated that people who had hidden a criminal relative should no longer be punished. Those in Former Han who opposed coadjudication and favored hiding, drew their arguments from ancient philosophical literature. They believed that a person was innocent unless he was himself involved in criminal acts, they ‘could not bear’ (bu ren) to punish an innocent person; they also held that the law should respect the feelings of love existing within the family. The defenders of coadjudication argued that a group was collectively responsible for the crimes of one of its members; they also believed that co-punishing a criminal's relatives would deter crime and enhance law and order.