Calculating Crime and Punishment: Unofficial Law Enforcement, Quantification, and Legitimacy in Early Imperial China (original) (raw)

The Early Roots and Development of Chinese Criminal Law: The Xia and Shang Dynasties

Tsinghua China Law Review, 2021

Little is known about the substance, nature, and procedure of early Chinese law. This is lamentable as it is generally accepted that the Chinese legal tradition is one of the oldest enduring legal systems of the world. To address this lacuna, available records and literature on the earliest known Chinese dynasties — the Xia Dynasty (夏, c. 2000–1600 B.C.) and the Shang Dynasty (商, c. 1600–1100 B.C.) — are surveyed, with the goal to cautiously and judiciously explore the social and legal life of the earliest of Chinese civilizations. Given that penal law (punishment) constituted the essence of early imperial Chinese law, the important legal principles and practices with regard to the criminal and penal laws of that time are identified and explained, and its legal development from approximately 2000 to 1100 B.C. outlined. Particular attention is paid in the analysis and discussion of this article to two early relics from the Chinese legal tradition — the Five Punishments (五刑), and respect for filial piety (孝). Despite the fact that so little is known about the early Chinese criminal and penal laws, it is shown in this article that these two relics from the early of Xia and Shang Dynasties have had a lasting influence on the subsequent development of Chinese law, not only in the imperial times, but also to this day.

New Insights into Emperor Wen of Han’s 167 BCE Legal Reform: The Changes in the Grading System for Illicit Profit from Robberies

Bamboo & Silk, 2024

Recognized as a pivotal moment in early Chinese legal history, Emperor Wen of Han’s 167 BCE legal reform raises significant unresolved questions due to limited available evidence. This paper aims to investigate the reform’s impact on the grading system for illicit profit resulting from robberies. By analyzing recently published legal manuscripts discovered in Tomb No. 12 at Hujiacaochang, Hubei, this study reveals that the reform introduced a more structured and coherent grading system for illicit profit, aligning it with the newly-established hierarchy of fixed-term hard labor punishments. By placing this reform in the context of the early Han dynasty, this research offers an alternative perspective that challenges the prevailing assumption that “Han continued the institutions of the Qin.”

“Categories and Legal Reasoning in Early Imperial China: The Meaning of Fa in Recovered Texts.” Oriens Extremus 50 (2011): 1-28.

Few terms in classical Chinese are so nettlesome as fa ( or ), a word often rendered in English as law or penal law. 1 Its troublesome nature owes much to the pronounced multivalence it had acquired already in early times. Traditional sources show that the term fa had a variety of meanings, 2 including "penal law," 3 "standard," "model," "method," and so forth. Hence it is unsurprising that scholarly opinion is divided about how to understand this term in various contexts, a situation reflected in the number of English translations currently in use. The newly recovered legal texts of Qin (221-207 BCE) and early Han (206 BCE -220 CE) can help illuminate the sense of the word fa. Yet such materials have attracted little attention from Western scholars, whose discussions have focused on philosophical works such as the Mozi , or the text "Jingfa" discovered at Mawangdui (ca. 168 BCE). 4 In this paper, we will clarify what fa means in certain, specific contexts. We argue that, although appearing in legal texts, counter-intuitively the term is often not best understood as law. In those situations fa refers concretely and specifically to sections of the statutes that delineate decision-making processes for use by officials. Our study does not encompass the entirety of the early Chinese textual corpus. Given the sheer number of occurrences of fa and the differences between genres, a comprehensive study would be neither feasible in the context of a single article nor especially useful. Instead, we tackle a smaller but still significant part of the puzzle: recovered legal statutes and other legal materials from the Qin and Han periods. We are going to assume what philosophers sometimes call the principle of charity. 5 While we do not hold that the term fa can only be read in one way in all contexts, we believe that bureaucratic texts from Qin and Han times use the term fa in identifiable and relatively consistent ways. In this respect we follow scholars such as Hsing I-t'ien and Xu Shihong , whose work shows that authors of legal texts put great weight on the technical vocabulary they employed. 6 The arguments of this essay also have larger implications, for the interpretation of fa is no trivial matter. Derk Bodde many years ago asserted that fa is "by far the most important 1 Both orthographies are correct and in many instances interchangeable. There has been much scholarship on the relationship between the two graphs in recent years, and on the meanings of fa that are involved; for review and discussion see Zhang Yonghe 2009. but that narrative has many questionable elements; see e.g. Jiang Bixin 1985.

Legal Process Unearthed: A New Source of Legal History of Early Imperial China

A group of Qin documents inscribed on bamboo slips was acquired by the Yuelu Academy on the antique market in Hong Kong in 2007. Four of these manuscripts are criminal case records dated from the final decades before the unification of China by the state of Qin in 221 b.C. These texts shed light not only on the administration of justice on the eve of imperial unification but also on various aspects of social, economic, and cultural history and historical geography. The present article reviews the recently published English translation of the Yuelu case records by Ulrich Lau and Thies Staack and discusses the value of these texts as historical source material.

The ‘ Dual Track ’ of Legality , and the Search for the ‘ Spirit of Law ’ in Traditional China

2016

China, with its millenarian empire ranging from the first Qin dynasty (221-206 BCE) to the threshold of last century (1911), has known one of the longest-lived and mighty politicalinstitutional structures ever existed. However, according to a still widespread opinion, China has not experienced a development of the idea (and ideal) of ‘law,’ that is to say a ‘legal tradition’ comparable to the Western one. In the face of differences, especially cultural and political, as striking between East and West, this article analyzes the concept of right and draw a comparison with Western law, to observer the peculiarities of an eastern view on the subject. Key-words: China. Law. Law Theory. Resumo: A China, com seu império milenar que vai desde a Primeira Dinastia Qin (221-206 a.C.) até o limiar do século passado (1911), tem conhecido uma das estruturas institucionais políticas de vida mais longa e ponderosa que já existiram. No entanto, de acordo com a opinião generalizada, ainda existente, ...

The Reformation of Social Order in the Qin Empire_Tong 2023

Asia Major 3d ser. Vol. 36.1, 2023

This paper examines the interplay between ideology and social reforms under Qin governance. It demonstrates that although the Qin rulers honored the social values of the preceding Zhou tradition (e.g., benevolence, uprightness, filial piety), the way in which they instilled them into the populace was through the quintessential twin Legalist instruments — punishment and reward. The present argument goes another step further: it takes note of new Qin evidence that reveals state coercive power as the primary means to materialize the Qin regime’s social engineering program that sought to rectify its subjects’ behavior and reconfigure family relations, hopefully thus eliminating unsanctioned learning, institutionalizing certain social values, and disarming the empire’s new territories in the east and south. The ultimate implication of the interplay as suggested, is that the ideal social order that the Qin rulers envisioned might have been conceived as extending to the farthest ends of the known world though aggressive military campaigns. The paper’s conclusion summarizes the foregoing as “moral-legalist supremacism.”

The Idea of “Law” in China: An Overview

Perspectives on Chinese Business and Law

China, with its millenarian empire ranging from the first Qin dynasty (221-206 BCE) to the threshold of last century (1911), has known one of the longest-lived and mighty political-institutional structures ever existed. However, according to a still widespread opinion, China has not experienced a development of the idea (and ideal) of 'law,' that is to say a 'legal tradition' comparable to the Western one. In the face of differences, especially cultural and political, as striking between East and West, this article analyzes the concept of right and draw a comparison with Western law, to observer the peculiarities of an eastern view on the subject.