Institute of History and Philology, Academia Sinica

Abstract

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 in a stage of early development in terms of criminal law. This paper attempts to challenge this characterization by re-defining "law" itself.

        In the first part, I explain the social conditions of Ch’ing justice. There happened many disputes between small, insecure and isolated households. They unhesitatingly filed suits with the court of district magistrates, and the magistrates dealt with the cases relatively faithfully. On the civil cases, the magistrate could pass judgment by himself, however on the criminal cases, he had to report them to a higher officials to obtain their approval.

        In the second 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 judgment, that each judgment 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 judgments. 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 "realized"; rather they were the place where individual judgments 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 third 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 fourth part, I investigate the nature of positive law in China, that is, the criminal code. Hitherto, the Chinese code has been assumed to be the "rules" applied to cases by officials during criminal adjudication. I assert, however, that Chinese criminal justice too was not legitimized by the criminal code, but by the principle of qingfa zhi ping 情法之平, the balance between the crime and its punishment, in the same way as civil justice was directly legitimized by the principle of qingli. It was not required that the accused be told by what article of the code he would be punished. When the particular situation of a case differed slightly from the text of the code, officials were not given the authority to interpret the articles for themselves, but were obliged to bring the case to the Emperor. The code was a set of broad guidelines made by the Emperor to direct the judgments of officials, not the grounds upon which officials make their judgments, that is, rules for criminal adjudication.

        In the fifth part, I sum up my discussion and conclude as follows. 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 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 China from world legal history. However, it would be better for those who wish to know the nature of law to admit that there existed a "law" without "rules" in world history.

Keywords

Law, Justice, Qingli, Qingfa zhi ping, Code, Rule