Institute of History and Philology, Academia Sinica

Abstract

The judicial procedure of imperial China required that the citation of a relevant statute or ordinance always accompany the pronouncement of sentence. Because most laws tended to be narrowly specific, judges were frequently confronted by cases whose circumstances were not clearly covered by any existing statutes or ordinances. The major device for coping with this problem was the application of law by analogy. In addition, several so-called “catch-all statutes” were adopted, of which the “doing what ought not to be done” statute was the most commonly used for relatively minor infractions. By this, individuals convicted of doing what ought not to be done received a punishment of 40 blows of the light bamboo for minor infractions or 80 blows of the heavy bamboo for serious infractions.

In the general format of the T’ang Code, the “ought not” statute was positioned at the end of the tenth division entitled “the Miscellaneous Statutes” (tsa lü). It was a regular statute like other substantial ones formally in the code, but was very marvelous exactly. Putting into effect the traditional idea of “let the punishment fit the crime”, any acts which disregarded the “li” (ritual; etiquette) or contradicted the “li” (reason; right) were considered to be “ought not”. The statute was aimed at all acts that diverged from social order or violated ethical or moral duties. These were acts that, though not specifically prohibited, were deemed reprehensible by the authority. There is no doubt that, the “ought not” statute contradicts the contemporary thinking of the “nullum crimen sine lege; nulla poena sine lege” principle.

From a contemporary perspective, serious of questions arise: When did the “ought not” statute begin? What was the real purpose of this legislation? How was the punishment determined? As there were no explicit conditions to define the crime of “doing ought not”, what did “ought” and “ought not” really mean? What were the standards of “seriousness” in situation and reason? How were the explanation and examples in the “T’ang-lü-shu-yi” (T’ang Code with Commentary) used to understand the real meaning of the statute? How can we determine the exact practice of the statute using the extant T’ang documents which are only marginally relative to judicial practice? By invoking the principles of contemporary criminal law, what problems can we clarify? How did this statute’s influence later dynasties and other countries, for instance, Japan?

To date the “ought not” statute has rarely been studied; the goal of the present paper is to understand the issues set out above.

Keywords

Doing What Ought Not to Be Done; the T’ang Code; Ritual and Punishment; nullum crimen sine lege; nulla poena sine lege; Legislative techniques