ISSN 1870-6800 Revista mexicana de estudios sobre la Cuenca del Pacífico Tercera época • Volumen 8 Número 16 Julio / Diciembre 2014 Colima, México Tercera

16 Revista mexicana de estudios sobre la Cuenca del Pacífico

Tercera época • Volumen 8 • Número 16 • Julio/Diciembre 2014 • Colima, México

Universidad de Colima Comité editorial nacional

Mtro. José Eduardo Hernández Nava Dra. Mayrén Polanco Gaytán / Universidad de Colima, Facultad de Rector Economía Mtro. Alfredo Romero Castilla / Universidad Nacional Autónoma de México, Facultad de Ciencias Políticas y Sociales Mtro. Christian Torres Ortiz Zermeño Dr. Juan González García / Universidad de Colima, Centro Secretario General Universitario de Estudios e Investigaciones sobre la Cuenca del Pacífico, México Dr. José Ernesto Rangel Delgado / Universidad de Colima, Dr. Alfredo Aranda Fernández Centro Universitario de Estudios e Investigaciones sobre la Cuenca Coordinador General de Investigación Científica del Pacífico, México Dr. Pablo Wong González / Centro de Investigación Dr. José Ernesto Rangel Delgado en Alimentación y Desarrollo, Sonora Dr. Clemente Ruiz Durán / Universidad Nacional Autónoma de Director del CUEICP-CEAPEC México, Facultad de Economía Dr. León Bendesky Bronstein / Economic Research Institute, Licda. Ma. Guadalupe Carrillo Cárdenas Washington, Estados Unidos de Norteamérica Coordinadora General de Comunicación Social Dr. Víctor López Villafañe / Instituto Tecnológico y de Estudios Superiores de Monterrey, Campus Monterrey, Relaciones Internacionales Dr. Carlos Uscanga Prieto / Universidad Nacional Autónoma Mtra. Gloria Guillermina Araiza Torres de México, Facultad de Ciencias Políticas y Sociales Directora General de Publicaciones Profr. Omar Martínez Legorreta / Colegio Mexiquense, México Dr. Ernesto Henry Turner Barragán / Universidad Autónoma Metropolitana-Azcapotzalco, Departamento de Economía Dra. Marisela Connelly / El Colegio de México, Centro de Estudios Dr. Ángel Licona Michel de Asia y África Director de la revista Cuerpo de árbitros Lic. Ihovan Pineda Lara Dra. Genevieve Marchini W. / Universidad de Guadalajara, Coordinador Editorial de la revista Departamento de Estudios Internacionales. Especializada en Economía Financiera en la región del Asia Pacífico Comité editorial internacional Mtro. Alfonso Mercado García / El Colegio de México y El Colegio de la Frontera Norte. Especializado en Economía Industrial e Industria Maquiladora Dr. Hadi Soesastro Dr. Fernando Alfonso Rivas Mira / Universidad de Colima. Center for Strategic and International Studies, Indonesia Especializado en Propiedad Intelectual; Turismo Internacional y Desarrollo Regional en el Marco de la Cuenca del Pacífico Dr. Pablo Bustelo Gómez Dr. Alfredo Román Zavala / El Colegio de México. Especializado Universidad Complutense de Madrid, España en Estudios sobre el Japón y Australia Mtro. Saúl Martínez González / Universidad de Colima. Especializado en Economía Agrícola Dr. Kim Won ho Dra. Susana Aurelia Preciado Jiménez / Universidad de Universidad Hankuk, Corea del Sur Colima Dr. Roberto Escalante Semerena / Universidad Nacional Autónoma de México, Facultad de Economía. Especializado en Economía Agrícola Dr. Mitsuhiro Kagami Dra. Melba Eugenia Falck Reyes / Universidad Instituto de Economías en Desarrollo, Japón de Guadalajara, Departamento de Estudios del Pacífico. Especializada en Economía Japonesa Dra. Kirstein Appendini / El Colegio de México. Índices a los que pertenece: Sistema regional de información Especializada en Economía Agrícola en línea para revistas científicas de América Latina, El Caribe, Dra. Emma Mendoza Martínez / Universidad de Colima. España y Portugal (LATINDEX) Especializada en Estudios de Asia y África / Universidad de Colima. Citas Latinoamericanas en Ciencias Sociales y Humanidades Dra. María Elena Romero Ortiz Especializada en Relaciones Internacionales (CLASE) Dr. Jürgen Haberleithner / Universidad de Colima. EBSCO/México Especializado en Políticas de Investigación, Desarrollo y Empleo

PORTES, revista mexicana de estudios sobre la Cuenca del Pacífico, Tercera época, Volumen 8, Número 16, Julio/Diciembre 2014, es una publicación semestral de difusión e investigación científica del Centro Universitario de Estudios e Investigaciones sobre la Cuenca del Pacífico y del Centro de Estudios de APEC (CUEICP-CEAPEC) de la Universidad de Colima. Av. Gonzalo de Sandoval 444 Col. Oriental, C.P. 28046, Colima, Col., México. Teléfono (+ 52) (312) 31 6 11 31, ext. 47801. www.portesasiapacifico.com.mx, [email protected]. Editora responsable: Gloria González. Edición: José Luis Ramírez Moreno y Carmen Millán. Reservas de Derechos al Uso Exclusivo No. 04-2010-030116423900-102, ISSN 1870-6800. Impresa por la Dirección General de Publicaciones de la Universidad de Colima, Av. Universidad 333, Col. Las Víboras, C.P. 28040. Colima, Col., México. Teléfono (+52) 312 31 6 10 00, ext. 35004. Este número se terminó de imprimir en diciembre de 2014 con un tiraje de 500 ejemplares. Su precio de suscripción anual es de $100 (cien pesos 00/100 MN) o de $60 (sesenta pesos 00/100 MN) $10 dls. (USA) el ejemplar, más gastos de envío (en su caso). Las ideas expresadas en los artículos e investigaciones son responsabilidad de los autores y no reflejan el punto de vista del CUEICP-CEAPEC o de la Universidad de Colima. El CUEICP y el CEAPEC autorizan la reproducción parcial o total de los materiales presentados aquí, siempre y cuando se dé crédito al autor y a la revista sin fines de lucro.

25 años de estudios sobre la Cuenca del Pacífico en la Universida de Colima The Research on the Military Administrative Law in Dynasty of China

La investigación sobre el derecho administrativo militar en la dinastía Han de China

Zhang Han1

Abstract Military law management system is an important contribution to the in China. Baselines of the military law of finds unearthed come, especially in the bamboo slats of Zhangjiajshan. This article highlights the importance of management system during the Han Dynasty law and analyzes the characteristics of military law, which allow us to understand the system of laws later dynasty.

Keywords: military administrative law, Han dynasty, China.

1 Doctora y estudiante de la Universidad China de Ciencia Política y Derecho en Historia Legal. También es profesora en la Escuela de Derecho en la Universi- dad del Suroeste de Ciencia y Tecnología, Mian Yang, Si Chuan, China, 621010. E-mail: [email protected].

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Resumen El sistema militar de administración de leyes es una importante contribución de la dinastía Han en China. Las bases de refe- rencia de la ley militar provienen de hallazgos desenterrados, especialmente en las tablillas de bambú de Zhangjiajshan. Este artículo resalta la importancia del sistema de administración de leyes durante la dinastía Han y analiza las características de la ley militar, que permiten comprender el sistema de leyes de la dinastía posterior.

Palabras clave: administración de leyes militares, dinastía Han, China.

Introduction i Han Dynasty’s “military law” has a history more than Xtwo thousand one hundred years, which is the earliest military law of China yet discovered (Wu Chong-kuang, 1981). Han Dynasty had lots of legislations in the military field, some regulated in the criminal law, others in a particular way, which mainly formed into a complete system of military law (Xu Shi- hong, 1998). In ancient China, military law was the guarantee to make a series of military operations running smoothly and the key to the victory, as well it was very important in law system. Laws of Han Dynasty had been lost for a long time, which could only be found in the literature in a small amount. Fortunately, unearthed literatures, such as Zhangjiashan Han Mu Chien,2 have provided a valuable supplement for the study of Han military law. This article attempts to systematize the military administrative law of Han Dynasty according to the unearthed bamboo-silk literature. In a sense, the earliest produced law is military law and the origination of penalty had a close relationship with military. The military law of Han Dynasty is the most ancient one which found in the historic literature of China currently and the investigation of the military law of Han Dynasty is the only way to disclose the veil of Chinese ancient military law. Furthermore, the military law of Han Dynasty military was a connecting link between the military law of the preceding and the following dynasties, which means that it was not only a summary of the former military law

2 Unearthed in the Western Han tomb of Hubei Zhangjiashan during 1983-1984.

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The main content of military administrative law of Han Dynasty The administrative law of drill For the preparation of a battle, the political quality and battle ability of the army must be enhanced. In ancient China, the priority thing of governing an army is teaching and training. When Chao Cuo3 argued military matters with the emperor, he stressed the importance of the selection and training of the soldier: “if solders don’t be drilled, one hundred soldiers couldn’t defend ten.” (, 1999) The drill is very important, and if the trained soldier violated the military law, he or the relative persons would get seriously punishment. This system was originated from Ch’in Dynasty: “If the soldiers who have been learning drive for full four years are still unable to drive, the coach should be punished with a Shield.”4 (Shui-hu-di Ch’in mu chuchien editing team, 1978) In Han dynasty, in each August or September, prefecture soldiers would hold a large-scale military drill, Through the inspection, the soldiers would to be divided into different classes, according to which to decide the prize and punishment. In Ju Wooden Slips in Han Dynasty, there are many records about the drill of soldiers, among which, there were pieces concerning rewards, punishments and “Autumn Shoot”.5 (Xie Gui-hua, Li Jun-ming, Zhu Guo-, 1987). In conclusion, different member in the army needed master different skills. Generals were the leader of the troops in wartime and the manager of military training in peacetime. Cavalry focused on the practice of riding and shooting, Cai Guan6 gave priority to practice archery, and Lou Chuan7practiced sailing and shoot. Border troops would master beacon-fire technology skillfully. All of the members of the army should practice crossbow technology. In addition, hunting was also a mean of training. In Western Han Dynasty the army also practiced Cu Ju,8 wrestling, and hand-to-hand combat as basic training projects in the army (Huang Shui-hua, 1998).

3 The brain of the emperor Wen and the imperial censor of emperor Wu. 4 Shield was a kind of currency of Ch’in Dynasty. 5 “Autumn shoot” was the name of the military inspection in Han Dynasty. 6 One kind of soldiers. 7 Soldiers mainly responsible for driving the ship. 8 Football sports in ancient China.

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The administrative law of “”9, “Jie”10 and “Xi”11 Being the special military token, “Fu”,“Jie”, and “Xi” were not only the documents with especially symbolic meanings, but also needed detailed requirements of form, which was the symbol of emperor power and represented that the emperor had the absolutely controlling power to the army. These tokens were managed by particular organization and person. Anyone who dared to forge would be sentenced to death. From the superficial aspect, one of the reasons why the penalty was so heavy was maybe the behavior would result in failure of the war, while the essence was that the imperial power could not be violated. In Han Dynasty, it had ever used Ya Chang and Xi Shu12 to dispatch the troopp, but the most basic document to mobilize the troops is bronze tiger-shaped Fu. “Tiger-shaped Fu”, was a special two-pieces object granted to people —usually given to the officers by the emperor— in ancient China as a representation of authority or identification to mobilize the troop. Two pieces were held by different persons and it needed to match the two pieces to mobilize the troop. In Du Shi Biography of , it writes: “It’s a traditional law that it needs the Tiger- shaped Fu to dispatch the troop. In earlier times, the troop had been mobilized by Ya Chang”. (Fan Ye, 1999) According to Bai- Guan Chi,13 the government had built a special organization to manage Fu and Jie. (Ban Gu, 1999) Anyone who mobilized the army without tiger-shaped Fu or forgery tiger-shaped Fu would be convicted of a rebellion crime and be sentenced to death. “Jie”, a kind of tally, was originally controlled by the emperor and used to command the army. When Jie was given to the emperor’s agents, it became the tag of the emperor’s agents, which might be the origin of the Jie (ōba Osamu, 1982). The envoy possessed Jie and he could make the order of prize and punishment, and also he could act arbitrarily. Even to the general’s troop, the envoy with Jie also had the right to interfere affairs of the troop. “Xi” refers to military documents or the documents to convey

9 Mainly refers to tiger-shaped tally, issued to generals as imperial authorization for troop movement in ancient China. 10 A special type of credentials. 11 Some documents issued to generals as imperial authorization for troop movement in ancient China. 12 “Ya Chang” and “Xi Shu” were both a kind of commander’s tally. 13 Documents about official’s records.

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military affairs. It is recorded in Han bamboo slips Xi would be transmitted information about keeping on alert (ōba Osamu, 2001). These documents were so important that anyone forged them would get strict punishment. For example, there were two crimes concerning forgery of Jie, “Jiao zhao hai”,14 and “Jiao zhao bu hai”,15 both of which would be taken as rebellion (ōba Osamu, 1982).

The administrative law of palace, city gate, frontier juncture and strategic pass The palace was the place where the emperor conducted his business and lived there, which was guarded by the military. It was necessary a particular document to come in and go out of the gate of the palace. Anyone who entered the gate without legal document would be sentenced to death and the guards, who neglected his duty and didn’t guard the palace, would be punished severely. The city gate, frontier juncture and strategic pass were guarantee of the national security, so there always stationed troops to safeguard. Guarding the city gate was to defend and prevent from spies to disclose the military intention of country. If violated the laws or decrees of safeguarding city, the person would be sentenced to death by guillotine. The frontier juncture and strategic pass were safeguard frontier, whose functions were guarding the city and tracking the criminals down. The law had taken the guarding of the loyal place and guarding the border to prevent from the invasion of the enemy as the same importance, which had shown that it had the same value between the safety of the emperor and the nation. This was also a powerful evidence of Chinese ancient social structure: home – country integration. Gong Ling16 regulated: “Everyone should get off in and out of the gate of the palace. Who violates the law would be fined 200 grams of gold.” (Shen Jia-ben, 1985) The government of Ch’in Dynasty had also garrisoned huge security forces in Xian yang.17 There is a crime named “Lan Ru” in the law of Han

14 To forge the order of the emperor and cause damages. 15 To forge the order of the emperor but cause no damages. 16 A kind of law form in Han Dynasty about palace guarding, which was issued by the emperor. 17 Capital of Ch’in Dynasty.

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Dynasty to forbid entering the palace gate without authorization (Li Jing, 1985). Who committed the crime of “Lan Ru” would be punished with “Ch’in Shih”.18 Under the circumstances of combat readiness or being surrendered, there was a guarding county law to restrain the soldiers and civilians on guarding. No process shall be made arbitrarily in the city, no pass through the gate of the city freely (Chen Wei-wu, 2003) and no loud noise and be crowded freely. (Wu Jiu-long, 1985) Finally, “To set a ‘Ping’ every twenty steps, which is no more than 15 steps far from the gate. Anyone who guards ‘Ping’ must hold ‘Mei’19in mouth (in order to prevent them from talking because it’s easy to reveal the guarding spot), or both of them will be put to death”.20 (Ceng Zhong-mian, 2004). Han Dynasty had set up checkpoints in strategic pass and ferry named “Guan Jin” with the nature of military police. “Guan Jin” was mainly used to safeguard and the law of passage of it was very serious. It was strictly forbidden the trade of military materials. When went out or came in “Guan”, things like foods, weapons, gold, bronze, horses, transportations needed perform special procedure. Besides, people who passed through the “Guan Jin” should declare the accompanying articles and entourages. Anyone intended to hide without reporting would be sentenced to be guillotined. There is a bamboo slip Zhiji (No. 795) of Transliterations of Han Slips from Dun huang has reflected the contents that the people should declare when they passed through the custom. (Yang Yi-fan, 2003) For the reason of the negligence of the guarding soldier to cause the goods and persons illegally pass through “Guan Jin”, the guarding officers and soldiers would take the responsibility. In addition, “Guan Jin” also had the responsibility of tracking down thieves and capturing fugitive slaves.

18 Public execution. 19 A kind of small and short stick to. 20 Shoufa and Shoulingof Han Bamboo Slips from Yinque Mountain.

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Several crimes related to the military management Some special charges were set for the purpose of regulating the army during the military administration. The military law concentrated on the obedience and loyalty of the military officers and soldiers to the country, rebellion and fled meant the betrayal to the senior, emperor and the country, and the military law had made the most severe punishment to these behaviors. Meanwhile, the law had focused on the maintenance of economic order in the army in order to physically provide the protection to the army. Rebellion was directly betrayal of imperial power and would suffer the defeat in the war even the national subjugation, so it should be prevented and the penalty was heavy to “Zu”.21 “Chen Chong22 suggests the emperor to make the regulation about the punishment of the escapee and the most urgent part of the law would focus on trivial matters. We should trace the origin, revise and make up for the old law to prevent future crime. Plotting insurgency would be sentenced to clan punishment.” (Chen Shu-de, 2003) Soldiers’ fleeing would shake the morale of the troop and destroy the stability of the whole army, thus generally, the fleeing person would be sentenced to death and his wife also would be punished: “If the soldiers escape, they should be captured and be found guilty” (Zhangjiashan Han mu chuchien editing team, 2001). Furthermore, there was a special law that if the soldier escaped, his wife would be enslaved as a warning to the soldier (Shen Jia-ben, 1985). The soldiers taking service who fled would be beheaded. As for destroying the economic order, even the crime circumstance was minor such as one stole fifty “Hu”23of cereal, would be sentenced to death in border counties. Xiao Lü24 of Ch’in Chien had stipulated a series of system about the inspection of the military goods such as weapon, armor, and leather, which was very comprehensive. (Shui-hu-di Ch’in mu chuchien editing team, 1978) Xiao Lü in Laws of the Second Year had the similar regulation, but there was no explicit mention of military products. However, from other literatures, we can include. Firstly, prohibiting privately stealing weapon, grain and

21 A kind of penalty, which means one gets the punishment, his relatives would also be involved and be punished. 22 Professional judicial officials in Han Dynasty. 23 One of the calculation units in ancient China. 24 One part of law about checking in Ch’in and Han Dynasty.

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Law about official’s salary, taking leave and soldiers’ funeral Salary and vocation were rewards of the labors of officials and soldiers, which also were confirmation and encouragement to the devotion of them, as well as the inspiration to throw themselves to the war. The funeral arrangement was to placate the killed person in the war and motivate soldiers in service. For paying off the officer’s salary, from Ch’in to the early Western Han Dynasty, the government had adopted with grain as the salary system. Since the emperor of Wu to the end of Western Han Dynasty, the government gave the officer a certain amount of money as salary per month according to the official rank. Soldiers’ clothes and food were supplied by the authorities. Moreover, during this period, the collection of the military spending was financed mainly from land tax and other levies. In Han Dynasty, the military cost for maintaining border forces mainly came from the redistribution of national finance income. When attacked the Huns,25 the government of Han had also implemented the fiscal policy in wartime, that is, the country run the trade of salt and to enrich the border military expenditure. The officials had a special system of taking leave called “Gao”.26 But with the consideration of the officers’ military power, the government had carried on strict limits for their taking leave system. In Han Lü, the officials whose salary were two thousand “Dan”27 had two kinds of method of taking leave: “Yu Gao” and “Ci Gao”. “Yu Gao” was rewarded to the officials who had get outstanding achievements. Additionally, if an official had been taking leave for illness for three months, according to the law, he should have returned to the duty. But the emperor could give

25 An ancient nationality in China. 26 “Gao” was a kind of system of taking leave in Han Dynasty. 27 One of the Han weighing unit, 1 Dan=59.2 Kg.

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him a preferential “Ci Gao”, which meant he could continue to take leave with his seal, silk ribbon, subordinates and families to go home to cure (Shen Jia-ben, 1985). There was a big difference of the funeral arrangement between officials and soldiers, which had shown the clarified hierarchy in the army. There was the arrangement of the senior officer: when the great minister of war Huo Guang passed away (named “Hong” in Han Dynasty), the emperor sent a large force as the funeral procession to escort him to Mao Mausoleum.28 However, even if an ordinary soldier died in the war, the country would give him basic care. Xiao Wang-chi Biography has ever quoted Chin-pu ling I29: Frequent the insufficient warfare in Border County made the soldiers encounter hunger and cold. Soldiers died and their son was separated from father. Therefore, the government commanded all of people to share their funeral expenses. If one’s elder relatives died, the soldier would be exempted from the military service and went home to be filial. Chen Chong Biography records: “If grandparents and parents had been died for less than three months, the soldier would be free from corvee and be allowed to attend the burial ceremony for their elders” (Chen Shu-de, 2003).

Laws on the management of barrack and military prison Barrack of the army was an important place and there was a rigorous system to guarantee its security, discipline and well running. Being the station of the army, it concerned things of weapon, soldier, food even military allocation and no one could privately enter into. It was strictly prohibited to break in barracks area, As Zhao Chong-Guo Biography recorded that although Ang and Chong Guo were a parent-child relationship, when Ang broke into the “Si Ma-chong”30 guarded by Chong- guo and stationed troops unauthorized, Ang was still convicted (Chen Shu-de, 2003). The barriers also couldn’t be passed through arbitrarily. To highlight the seriousness and discipline of the barracks, it was prohibited to raise clamor and walk in the night in the camp.

28 Huo Guang Biography in the . 29 Regulation concerning finance. 30 The military campis, as important as the interior door of the palace.

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On consideration of discipline and security, there were also two bans associated with soldiers dressing. One was that it was prohibited that anyone masked with large cloth and held a weapon. Soldiers’ dressing was the expression of the mental outlook of the army and one of the guarantees of morale, especially to the officials, because “officials are represents of the government and the model of the folk, so their carriage and clothes must properly match” (Shen Jia-ben, 1985). It was also regulated that the war would be broken out at anytime, officials and soldiers could not absent without leave. Committing suicide was considered as an absent without leave, even failed, the soldier would get severe punishment. There was a special provision in New Ju yan Wooden Slips in Han Dynasty: “Soldier who suicides with weaponry, rope, and other implement would be imprisoned. After imprisonment, the soldier again commits suicide or murders, if he himself or others are injured and the others die in twenty days, the soldier would be punished in KunWei Cheng Tan Chung”31 (Chen Wei-wu, 2003). The local was the source of military logistics, so it’s important to properly handle the civil-military relations in order to stabilize the border and make the soldiers and civilians are united. Therefore the troops to guard the borders not only abide by the military law, but also must comply with local laws at the same time. It is a pity that the related data on military prison is limitedd and the detailed contents of the prison in the army could not been discovered. Notwithstanding, in the army, there must be a place to receive the criminals. Ru Chun’s annotation in Du Yan-nian Biography noted: “The law prescribes that to set up ‘Ying-jun Si-kong’ and ‘Jun-chong Si-kong’ in a military camp”. “Ying-jun Si-kong” was the officer of prison management in a garrison troop and “Jun-chong Si-kong” was in charge of the prison affairs in an expedition. As for the prison installation, the expedition troop and the garrison troop were different. A garrison troop set up a prison in the place where they stationed, which was not difficult. Neverthness, the expedition troop had no fixed place and where to set up the prison? However, it was

31 “KunWei Cheng Tan Chung” was a kind of penalty in Han Dynasty. If the criminal was a man, he would be shaved whiskers and beards to serve a hard labor called “Cheng Tan”. If the criminal was a woman, she would be punished to husk for the government called “Chong”.

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impossible there was no criminal in a troop and it was necessary to have a place to detain the criminals, then the place was also called a prison (Shen Jia-ben, 1985).

Significance, characteristics and influences of military administrative law of Han Dynasty Significance of military administrative law of Han Dynasty Although Han Dynasty had established a unified feudal country, the internal and external problems still existed. Arrogant vassals and nuisance Huns had been always plaguing the central government, accompanied with the ruler’s ambitions to expansion the territory, the military was regarded as the national priority. Under the background of frequent wars of Han Dynasty, legislating and editing of the military law had been increasingly frequent and sophisticated. Military law was to ensure the smooth conduct of military operations and the key to continuously get victory, as well as the important prerequisite of consolidation of the Empire foundation and strive for hegemony. Therefore, it was a natural responsibility of military law to constraint army, maintain discipline, implement reward and punishment, encourage the morale, improve efficiency of military management and enhance the army power.

Characteristics of military law of Han Dynasty The object of military law was special, including generals, officials, soldiers, and all relevant persons and behaviors involved in military. Also, the management of military was concerned the criminal law and administrative law, thus the military law had presented unique characteristics. Through the above discussion of the content of the military administrative law in Han Dynasty, we can summarize that Han dynasty could be called a dynasty of “Governing Army by Law” and according to the military law, the prize and punishment were concrete and convincing. Specifically, there are five characteristics of the military law of Han Dynasty: 1. “Monarchical power is supreme” and “Nation- Orientation”. The whole military law had expressed the ideal to maintain centralization and autocratic monarchy, embodied in the

108 Portes, revista mexicana de estudios sobre la Cuenca del Pacífico Tercera época / Volumen 8 / Julio • Diciembre 2014 / pp. 97-114 Issn 1870-6800 The Research of the Military Administrative Law in Han Dynasty of China national interest as the supreme interests. All aspects of the law were developed around the imperial power: to emphasize the absolute control of the imperial power to the army; to ensure the absolutely control over the power of dominating army and appointing officials; the military and political affairs were totally arbitrarily decided by the emperor and the subordinate official couldn’t interfere; each prefecture should be subjected to the unified dominate and the dispatch of the Central Committee; When needed, the people’s interest should be sacrificed for the national interest. 2. The general’s right was particular and the hierarchy was obvious. Officers and soldiers had big differences on rank order, social status, salary and funeral arrangement, which totally expressed the cares to the officials. Once a general was appointed, he possessed a relatively independent power even exceeded the authorization permitted by the nominator. Liu Tao · Appointing a General recorded: “Affairs in the army are not controlled by the emperor, but by the general.” (Cao Sheng-gao, An Na, 2007) In fact, the great power of general was authorized by the emperor, so to protect the power of general was equal to protect the power of emperor. 3. The content is detailed and thorough. As for the legislation forms, there were laws, decrees, orders co-existed, whose contents included from the military establishment, organization, recruitment, power system to military training, management, operations, reward and punishment, logistical support, and then to the punishment in violation of military law, which were well-detailed and thorough. It may be said that every aspect of the entire military activities has been given a comprehensive and thoughtful regulation and management. 4. Pay attention to efficiency of time. When facing the enemy, time is one of the important factors to win. It not only required a precise time of the march, but also the response to the behaviors of violating the military law. The regulations of the military law had protruded the seriousness and temporary of the conflict between the legislators and the lawbreakers. Usually, the offender would be punished severely and on-site. In addition, the relief and reduction of the punishment had also proved that compared with the general law,

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military law paid more attention on efficiency of the time from a side way (Chen Wei-wu, 2003). 5. Severe punishments and harsh laws. Military law of Han Dynasty is a sequel and supplement to the criminal law of Han Dynasty. From aspect of sentencing range, compared with the criminal law, the punishment of military law was more severe. Most of the crime was directly sentenced to death without a compromise penal and a large number of penalties of guillotine and Zu had been applied, which had shown the rigors of military law. Moreover, war related to the safety of national survival, so it should handsomely reward those who performed deeds and severely punish those who performed violations, among which, the most vital emphasis was the penalty to the officials because big power meant heavy responsibility. It had shown in the following aspects: among various military crimes regulated in the code, the subjects of the most crimes only should be officials who took a specific responsibility; in the case of committing the same crime, the responsibility of the official would be heavier than that of an ordinary soldier; if the subordinate committed a crime, his supervising official would also be involved to take the criminal responsibility; the punishment to crimes of neglecting one’s duty and misconduct was particularly heavy. 6. Special jurisdiction. Han Dynasty had implemented special jurisdiction to the criminals who breached the military law and the punishment was carried out by law enforcement agencies within the military. In ancient China, there was idea of “Military and penalty civilized integration”, which meant that military is both an organization of war and a law enforcement agency, and the general led troops, also was in charge of penalty. The persons who concretely enforced the military criminal law were called “Jun Zheng” or “Jun Li”. Bibliography of Hu Jian in the Book of Han cited the military law: “Jun Zheng does not belong to the jurisdiction of general. If the general committed a crime, Jun Zheng could only report the general’s crime. While as for official whose salary is under two thousand Dan, Jun Zheng could enforce the law by himself.” There was full-time person to enforce the law and sometimes substituted person to perform. (Chen Wei-wu, 2003) Generals were appointed to the rights of punishment and reward, which had been written in military law. Normally, the troops were commanded by different rank of officials. They were usually responsible for both military

110 Portes, revista mexicana de estudios sobre la Cuenca del Pacífico Tercera época / Volumen 8 / Julio • Diciembre 2014 / pp. 97-114 Issn 1870-6800 The Research of the Military Administrative Law in Han Dynasty of China and administrative matters, as well as had the jurisdiction over the cases occurred in the army. Cases concerning the army stationing of the Capital were separately subjected to the specific jurisdiction of the Chief, and cases happened in the local army would be handled by Tai Shou, who was the superior army official locally. But there would be some attached restrictions when actually implemented. If the criminal was officials with high rank, the prevailing approach was to “submit him to the emperor to give a judgment”. Although the emperor had the right to directly guillotine the general, the emperor would not use this right easily except it was urgent. The usual way was to send the criminal for trial by “Ting Wei”.32 Moreover, cases about Tai Shou generally were trialed by Ting Wei also. If the case was involving military and civilian, the military law of Han regulated the jurisdiction belonged to the local judicial organizations (Xu Shi-hong, 1998).

Influences of military administrative law of Han Dynasty The earliest military regulations appeared at the time of Xia, Shang, Zhou Dynasties, when the primitive tribes was gradually broken down and the ethnic nation had been come into being and daily developed. The military law of Han Dynasty had inherited the military law of the former three dynasties and the basic contents of the three dynasties could be correspondently founded in military law of Han Dynasty. Also, laws of Han Dynasty inherited and further developed laws of Ch’in Dynasty, which was proved by the repeatedly citation of the law of Ch’in to explicate the content of the military law of Han Dynasty in the paper. The military law of Han Dynasty also paved the way for the military law of the posterity. In terms of Tang Lü, 33 it is originated and developed from Han Lü,34 and the military law was not an exception. Professor ōba Osamu has said: in Tang Lü, Shan Xing Lü35 was related to the military law, whose basic provisions were compiled by Xiao He in Xing Lü36 and Jiu Lü37 of the law of Han (ōba Osamu, 1982). The military law of Tang Dynasty was the

32 Official of the central committee to trial the case. 33 Tang Lü Shu Yi, which was the basic law of Tang Dynasty. 34 The general name of laws of Han Dynasty. 35 Statutes on dispatching troop and relevant offences. 36 Statutes on corvee, city defense and garrison. 37 Statutes on Stables.

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summary and improvement on the basis of the military law of Han Dynasty. The military administrative law system was a good proof. For example, the administrative law system concerning palace and city gate in the military law of Han, such as entering the palace without tally, “Lan Ru” palace and “Lan Ru” unroyal place, which had been concretely regulated in Wei jin Lü I;38 the administrative law of frontier juncture and strategic pass of Han had been stipulated in Wei jin Lü II of Tang; Han’s regulation about curfew in the night of had been found in Tang Za Lü I…39 Of course there were also differences. For instance, the law of Tang had regulated: Who had stolen the banned weapons and amounted to five crossbows would be hanged. While the law of Han regulated: “Who had stolen armories weapons would be punished by Ch’in Shih”, “Who had stolen money amounted to one hundred in frontier prefecture would be punished by Ch’in Shih”, which shows that the military law in Tang differed greatly with Han’s. Probably there were still other punishments of Tang which were lighter than Han’s, not just this one (Shen Jia-ben, 1985). Thus, we can say that military law of the Tang had made a summary and improvement basing on military law of Han.

Conclusions Military administrative law in Han Dynasty is in small amount and dispersed in the ancient literatures. Fortunately, there is a supplementary proof of the unearthed bamboo slips to roughly sketch its outline. The army of Ch’in and Han implemented an administrative system of multi-leadership, multi-stage and multi-level to take the responsibility jointly to the emperor, whose characteristics were clear hierarchy and each performed its own function. The military Administrative law of the Han Dynasty included contents of the management of military drill, military token, palace, city gate, frontier juncture and strategic pass, several crimes related to the military management and the management of official’s salary, taking leave and soldiers’ funeral. The military administrative law of the Han Dynasty was strictly constraint, and the prize and punishment were concrete and convincing. The military administrative law of the Han

38 Statutes on protecting emperor personal safety, state sovereignty and border se- curity. 39 Statutes on the remaining miscellaneous items.

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Dynasty inherited from that of the three Dynasties and Ch’in. Nevertheless, on the basis of inheritance, law of Han Dynasty had made some innovations. Additionally, on the whole of the military law of Han Dynasty, it has foreshadowed for future military law. Taking Tang Lü as example, it was evolved from the law of Han Dynasty and the military law was no exception. The research on the military administrative law of Han Dynasty could not only help a comprehensive understanding of the Han Dynasty military law and recognize the important status of the military law of Han Dynasty in the whole Chinese ancient military law from the longitudinal direction of the history, but also could help to analyze the characteristics of the society of Han Dynasty from transverse direction. Although the focus of military law was to adjust the behavior of the members of the military and military activities, we can view the characteristics of the law of Han Dynasty through military law, and also, the characteristics of the society of Han Dynasty. The imperial power had strictly controlled the army and had a propounded impact on the law. The ultimate target of military defense was to protect the society of “home-country integration”, which was built with taking the imperial power as the center. In the ancient China, it was difficult to clarify whether the original intention of the military law was to safeguard the imperial power or to ensure the smooth of the military activities, or the intentions of the two were coincided intrinsically, that is, for the eternal stability of the imperial power. Certainly, there were also some shining points of the military law of Han Dynasty. For example, although the punishment of the violation of the military law was very heavy, still some humanitarian cares could be founded to the soldiers: from the allocation of military materials, support of clothing and food to the soldiers’ funeral, the law had taken care of respectively, as well as the cares for soldier’s family, which had also echoed the legislative thought of “moral enlightenment is primary while penalty is supplementary” and the protection to Paternity.

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