Organizer: Laura A. Skosey, Michigan State University
Chair: Mary Buck, Harvard University
Discussant: Hugh T. Scogin, Jr., New York University
This panel aims at presenting more holistic pictures of law in various periods ranging from the Western Zhou (ca. 1045-771 B.C.E.) to the Former Han (206 B.C.E.-23 C.E.). Although the media and content of the legal material studied is quite varied, including quasi-records of lawsuits inscribed in bronze sacral vessels, legal models and statutes written on bamboo strips, and received texts, there is at least one common thread that runs through these four papers: each seeks to enhance our understanding of the ways in which early Chinese legal systems operated by identifying their scope and/or intended audiences, i.e., those to whom the law spoke. Hu focuses on laws that were aimed at regulating officials, and notes that concern with controlling official malfeasance outweighed issues of family law. Skosey suggests that during the Western Zhou, certain shared cultural features, such as the discourses of religion and warfare which were incorporated into the legal system of Zhou elites, were crucial elements to legal deonticism. Turner's reading of the Qin and Han texts demonstrates not only the active role that the common man played in manipulating and thwarting laws for his own benefit, but also addresses how the legal bureaucracy dealt with this grassroots threat. Finally, through study of the recently published casebooks from Jiangling which were intended for use by judicial personnel, Weld affords insight into legal reasoning during the Han. The discussion will be led by Hugh Scogin, whose work on contract law in the Han is well known.
The Nature of Legal Deonticism in the Western Zhou
Laura A. Skosey, Michigan State University
This paper addresses the question of deonticism (i.e., the binding force of law) in the Western Zhou legal system of the elite, and in so doing touches on issues of legal obligation and enforcement, as well as the scope of law. In it, I suggest that in addition to the infliction of punishments and increased sentences in cases of non-fulfillment of original sentences, and significantly, there existed several other factors-cultural, social, and psychological-which contributed to the establishment of legal obligation among members of the elite legal system. In particular in this regard, I identify and discuss the roles of religious and military rhetoric and ritual. Both the discourses of religion and warfare as incorporated in the legal system functioned as symbolic systems, and together with collective social memory served as a means to enforce sentences and to effectuate the legal system. In essence, the Western Zhou legal system drew on already extant sources of cultural normativity and political legitimacy in an effort to validate itself. This raises interesting questions with regard to such jurisprudential issues as the "Rule of Law," an ideal espoused but not fully realized by the Western Zhou.
"The Wise Ruler Disciplines His Officials, Not the People"
Shikai Hu, University of Toronto
The importance of official malfeasance in traditional Chinese legal codes, from the T'ang, the earliest extant code, to the Ch'ing Code, the latest development of this tradition-shown by the surprisingly large quantity of rules concerning it, and, the complexity and sophistication of these rules-is one of the most salient and dramatic aspects of this great legal tradition. When, how, and why did this feature come into being?
This paper offers answers to these questions by exploring the formation and transformation of traditional Chinese law from early times to the Ch'in unification, and discusses the developmental characteristics of the law in each major stage of the period in their political, social, economic, and technological contexts. The paper reveals that in tandem with the ruler's need to control its subjects, Chinese law developed, from the outset, in a way that family and state bureaucracy-the two basic and most important institutions among extant control mechanisms-became its primary concerns. Official malfeasance, the main system of negative sanctions for bureaucratic control, and the crimes concerning family ethics developed, however, not only in different directions but also under different guiding principles. The former ultimately received greater emphasis than the latter and became the central feature of the law in its evolution as early as the Warring States period. From then on, traditional Chinese law served primarily as a tool for the internal organization and maintenance of the state bureaucracy.
Popular Attitudes Toward State Law in Early China
Karen Turner, Holy Cross College
This paper examines an area usually neglected in studies of late Warring States and early Han China: the reactions of ordinary people to the laws and institutions of the state. I will argue that contrary to standard wisdom in the sinological field, those subject to the laws were not simply passive recipients but active agents who manipulated, ignored, or thwarted the laws whenever possible. Reading between the lines of the Qin Codes from Shuihudi, for example, we can see the architects of the laws attempted to guard state resources from a populace they considered manipulative, thieving, and litigious. The Han histories offer another source for detecting coded resistance to formal laws and institutions. Thus, the paper presents a new view of relations between ruling elites and common people in the late Warring States and early Han era, and a discussion about reading texts as the products of elites who stood in an uneasy position as mediators of state power and popular resistance.
The Han Casebooks from Jiangling
Susan R. Weld, Harvard University
The recent publication of the transcriptions of the several zou xian shu (casebooks) from Hubei Province, Jiangling, Zhangjiashan, have provided the legal scholars of early China with a corpus of documents not unlike some of the Qin legal material excavated from Shuihudi. Most of the casebooks, which detail legal procedure that officials were to follow in like cases, date to the Han, however, some date to the Qin, and two are from the Springs and Autumns period. Because of the length of time elapsed between their excavation and preliminary publication, these documents have been little studied in China, and even less so in the West. In this paper I propose to examine one of the Han casebooks paying special attention to the light it sheds on legal reasoning.