AAS Annual Meeting

China and Inner Asia Session 377

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Session 377: Law and Legal Literature in the Early Chinese Empires: New Perspectives on the Formation of the Chinese Intellectual Tradition

Organizer and Chair: Robin D. S. Yates, McGill University, Canada

Discussant: Mu-Chou Poo, Chinese University of Hong Kong, Hong Kong

Since 1972, Chinese archaeologists have retrieved an extraordinary number of previously unknown early texts belonging to a wide range of genres. Previous scholarship has focused primarily on the philosophical works that have allowed the complete re-writing of the history of the formation of the Confucian and Daoist intellectual and popular religious traditions. Much less attention has been paid to the legal and administrative texts that have been unearthed, even though their numbers far exceed those of the other types of recently discovered manuscripts. The presenters on this panel, scholars from Europe, North America, and Asia, ranging from senior faculty to a doctoral candidate, will focus on the importance of these latter texts. They will propose that their comparative neglect is completely unwarranted. The development of written law and a highly complex written legal process had a profound impact not only on the development of the technologies of administration which were essential for the long-term survival of the Chinese imperial state and social systems (Caldwell) and fundamental state-society relations (Turner), but also on literary forms and genres (Barbieri-Low), and techniques of reasoning and decision-making (Lüdke) that had far broader impact on the development of Chinese culture than has previously been acknowledged. Papers will be posted online ahead of time; panelists will provide short introductions to their papers; and the discussant will lead the audience in an in-depth seminar, moderated by the Chair, on the implications of their insights for the understanding of the formation of early Chinese intellectual and literary traditions.

Conceptualizing Written Law in Early China: Philosophical Debates over the Nature of Law and the Influence of Writin
Ernest Caldwell , School of Oriental and African Studies, United Kingdom

Although the legal culture of the short-lived Qin dynasty has long been vilified in history as harsh and draconian, many of its institutional features, such as the use of written statutory law, were readily adopted by subsequent dynasties as the primary means for maintaining administrative and social control. This is surprising given the fact that written law, in the sense of formally drafted and publically promulgated collections of statutes, appeared rather late, nearly a millennium after the development of writing in China; even then, its efficacy was heavily contested. How, then, did written law come to possess a central position within Qin legal culture? Drawing on recent scholarship examining the development of writing, this paper will argue that while the introduction of writing provides the technological capacities for the development of specific legal institutional features, there must first exist within a society both acknowledgement of a specific legal need, and a concomitant affirmation that the need can best be satisfied through the implementation of a form of writing. I will examine the socio-political transformations of the Warring States period as well as their philosophical responses to support the argument that a combination of changing views over the efficacy of law as a source of social stability, paired with the type of centralized government and universalized social institutions envisioned by the Qin, contributed to an increased consciousness of the value of written law. This consciousness eventually culminated in the promulgation of collections of written statutes.

Practical Casebook or Early Court-Case Literature: A New Interpretation of the Zouyan shu ("Book of Submitted Doubtful Cases")
Anthony J. Barbieri-Low, University of California, Santa Barbara, USA

The Zouyan shu is a compilation of legal cases, found in tomb # 247, Zhangjiashan, in Hubei Province dated to shortly after 186 BCE. The cases range in date from the Spring and Autumn Period to 196 BCE. They are hardly uniform in structure. Some are actual cases submitted to higher authorities in the capital for decision during the early Han period, others are trial dossiers of reinvestigations or appeals from the Qin and early Han, while two are historical anecdotes of an apocryphal nature, set in pre-imperial times. Most scholars have argued that the Zouyan shu would have been used in life to teach legal officials how to properly report, file, and submit trial documents, providing unique information about daily life, crime, and the early imperial legal process. However, a close examination of the cases reveals certain structural and stylistic anomalies that suggest something quite different. I will argue that the Zouyan shu was not just a practical legal casebook, as most have argued, but what Robert Hegel has called "law as literature." I contend that the Zouyan shu is the earliest extant example of court-case literature (gong-an), more familiar from Yuan, Ming, and Qing times. The intended audience of this literature was the highly literate legal scribes (yushi), who helped manage court cases. Through this compilation, they could be entertained in life and death by the triumphs and follies of men of their own status and caste, while educating themselves through legal precedents.

The Many Faces Of Law In Early Imperial China
Karen Turner, College of the Holy Cross, USA

This paper explores the many roles that discourses about law played in early imperial China. Discussions about the role of law not only targeted the problem of defining deviance and correct punishments, but also served to illuminate concerns about legitimacy and proper relations among various members of the newly constructed empire. The paper is organized around two issues that dominate the historical narratives and legal materials. Part one assesses the rhetoric about law adopted by ruling elites as they attempted to rationalize the use of brute force that enabled the Qin and Han founders to capture the empire. Conceptions of the “just war” had been put forth by Warring States writers, such as Xunzi, and it is clear that the Qin and Han founders and their advisers worried that their wartime tactics did not square with standards for the use of violence for political ends. Promises to mitigate harsh laws and clarify the laws governing the state’s use of force to control its own people offered elites one measure to legitimate their offices and their service to the new regimes. Part two focuses on another dilemma that was never resolved in the early empire: the tension between kinship obligations and the demands of the new bureaucratic state in legal matters. By examining narratives in the historical sources and legal texts about kinship relations and the state from the highest levels to the realm of ordinary life I hope to show that in the early empires, ideals and practices about social relations were not codified but remained in a state of flux. At the heart of the history of law in the Han imperial state, then, is a deep ambivalence about the role of law and coercion punishments in the newly constructed empire and an ongoing struggle between bureaucratic and patrimonial interests.

A New Framework for Old Problems: The Meaning of the Han ‘Confucian Turn’ as Exemplified in Legal Argument
Michael Luedke, University of Erlangen-Nuremberg, Germany

There is near-consensus that China, in the second and first centuries BCE, experienced a formative shift in its intellectual and ideological landscape, the so-called process of ‘Confucianization.’ According to traditional understanding, under Emperor Wu, Confucian norms and texts replaced other philosophies and textual traditions, established a nexus with imperial power, and made a long-lasting impact on all spheres of state and society. A critical evaluation of this standard picture has until recently been hindered by the lack of specific source material. With the recent archaeological discoveries of previously long-lost texts, this situation has changed at least in the area of law, which is the sphere in which the Confucian turn is considered to have brought about the most decisive changes. The legal content of texts considered to be characteristic for the “Confucianization of the law,” such as the extant fragments of Dong Zhongshu’s Chunqiu jueyu, can now be analyzed on the basis of actual contemporary law. Such an analysis indicates that, contrary to traditional views, the process referred to as ‘Confucianization’ was not one characterized by a subordination of the law to an extraneous Confucian ideology in substantive disagreement with a supposedly Legalist body of norms. Rather, this process can be understood as one which offered a new type of reasoning and a new methodological and technical approach, especially for those cases that challenged traditional judicial decision-making. This further suggests new answers for broader questions, such as why ‘Confucian’ modes of reasoning and decision-making became intellectually attractive during later times.