We are accustomed to regard adjudication as the judging of individual cases according to general rules, and law as the rules which the judges apply to cases being adjudicated. Based on this definition, traditional Chinese law has been characterized as being underdeveloped in terms of civil law, and relatively highly developed in terms of criminal law. This paper attempts to challenge this characterization by re-defining "law" itself.
In the first part, I discuss the characteristics of civil justice. This is "individualistic" because the judgments might vary according to the individual situation. However, it is also "universalistic" because each individual judgment is not assumed to vary according to the judge, but to be what whoever handles the case would judge in a similar fashion. It was the ideal that
all individual cases had their own individual judgement, that each judegement is shared by all the public, and that the judge represents gonglun公論 (public and impartial opinion). Qingli 情理 (situations and reasons) is the term representing these judgements. In other words, there existed only a single principle, qingli, with many cases representing that principle; not the medium between them, that is, the concrete "rules". The courts were not deemed to be where established rules to individual cases were applied, or where those rules might be "realised"; rather they were the place where individual judgements were made directly from the principle of qingli. The judges were expected to have du徳 (virtue), in order to show the parties concerned a public and impartial opinion.
In the second part, I look at the adjudication system which backed up such "individualistic / universalistic" justice. Because it was not always easy for the individual judge to persuade the parties concerned that his judgment was nothing but public opinion or that he was a man of virtue, the legal system had to allow contending parties to challenge the impartiality of the judge or the judgment by appealing to a higher court, thought of as being more representative of public opinion, and let them confirm its "universality" for themselves. If the appeal system, which stretched up to the Emperor, was able to absorb the anxiety of the parties, the authority of the state would be recognized by the people; if it could not, however, even the authority of the Emperor might be questioned. Those who represented public opinion were men of virtue, while what a man of virtue declares was public opinion. These two arguments are always circular. However this was an unavoidable consequence. There could not be a functional classification between the making of rules and the application of rules as long as there was no concept of "rule".
In the third part, I investigate the nature of positive law in
There were not any "rules" in traditional Chinese adjudication that individual judgments could rely on and must abide by, and it was not assumed to be the duty of the authorities to realize established rules through adjudication. Conversely, the Chinese public authorities were assigned the role of finding the best solution fitting qingli or qingfa zhi ping for each case, and the adjudication system was designed to accomplish this duty in an impartial and public way. Here, we could of course still restrict the concept of law to something like "rules", and completely exclude traditional
law without rules, justice, gonglun (public and impartial opinion), qingli (situations and reasons), qingfa zhi ping (the balance between the crime and its punishment)
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