Imperial Chinese Justice and the Law of Torture

Within the traditional Chinese system of justice, the use of torture as a tool for the extraction of information or confessions existed at least as far back as the Han dynasty (206 BCE–220 CE)² and continued to be a legally sanctioned feature of the judicial process for all but the last six years of imperial Chinese history.³ Until internal and external pressure for legal reform mounted in the final decades of the Qing Dynasty, the dominant view within the official culture was that the measured use of torture could result in more substantive justice—in the sense that the guilty were more likely to be convicted and the innocent allowed to go free.

In imperial Chinese law, torture that was used as an interrogative tool in the course of a legal proceeding and punishment that was meted out to convicted wrongdoers in the aftermath of a trial were two sides of the same coin. Interrogative torture and retributive punishment both were referred to as xing, a blanket term that comprised both forms of judicially sanctioned physical violence. Made up of the graphs xing, meaning “to carry out,” and dao, meaning “knife” or “sword,” the primary meaning of the character most likely derives from the mutilating punishments of ancient China.⁴ In legal texts dating as far back as the Qin dynasty (221–206 BCE), the term xing was used to refer to such criminal penalties as nose cutting, leg cutting, or tattooing.⁵ Over time, the meaning of xing evolved to include all forms of legally sanctioned torture and punishment.

As explained by Lu Longqi (1630–93), a magistrate who was renowned for his incorruptability, xing had two purposes, the “lesser” of which was investigative (xun) and the “greater” of which was adjudicative (jue).”⁶ Used as an aid to investigation, xing was seen as an effective technique for determining the “true facts” (shiqing) of a case and extracting a confession from the guilty parties. Used as a tool of punishment, xing was viewed as a just retribution for past wrongs and a useful deterrent against future misconduct. The shared terminology for torture and punishment reflects the essential similarity of these practices in the eyes of Chinese jurists, who viewed them as regrettable but necessary tools in the pursuit of justice. The conception of torture and punishment, properly applied, as efficient and effective instruments of justice, was propounded by countless writers throughout China’s history and forms the philosophical backdrop against which Chinese judicial torture must be understood.

The goal of this paper is neither to defend imperial China’s use of judicial torture nor to suggest that torture was representative of or unique to Chinese culture, but to explain the legal justification for its use in the traditional Chinese law-enforcement system, specifically, that of the Qing (1644–1911), China’s last imperial dynasty. The first section examines the instruments and methods of torture permitted under the law, as described in the Qing criminal code. The second section discusses the limitations on judicial torture, as described in the formal law and official writings, analyzing the ethical and practical considerations according to which torture was regulated, restricted, and eventually abolished. By way of conclusion, the article discusses what the use of torture reveals of the imperial Chinese concept of justice.

The Sources for Qing Torture

Some of the most important sources for the study of torture can be found within the voluminous law codes of the Qing Dynasty. The core regulations concerning the legally sanctioned methods and instruments of torture appear in the Qing criminal code, a compilation of statutes and substatutes related to crime and punishment.⁷ Other relevant laws appear in specialized compendia of administrative regulations and sanctions, which established legal standards and disciplinary sanctions concerning the use and abuse of torture by government personnel.⁸ Supplementing the formal codes were imperial edicts, which had the force of law, and published collections of case materials that demonstrated practical aspects of the law-enforcement system in the context of individual cases.⁹

Other important materials include archival case...