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Professional Practice: Law in Qin and Han China Michael Lüdke Dissertation Submitted to the Faculty of Philosophy of the Ruprecht-Karls-Universität Heidelberg Contents Note ..............................................................................................................................................4 Preface .........................................................................................................................................4 Introduction: Law in China ..........................................................................................................8 Precedents and procedures: The Zouyanshu and its cases ......................................................... 22 The role of the Zouyanshu within the administration of law .................................................. 22 Dating of the Zouyanshu and its cases ................................................................................... 72 The sequence of the cases ...................................................................................................... 92 A form to be filled in: The procedural model ......................................................................... 94 Facilitating imperial rule: The role of judicial procedure ..................................................... 139 Mediated legal evidence: Testimony in early Chinese legal texts ............................................. 142 Testimony: First-person voices in the trial records ............................................................... 142 The role of testimony within criminal procedure.................................................................. 143 Mediating testimony by writing it down............................................................................... 166 Conclusions .......................................................................................................................... 179 The role of law in early China .................................................................................................. 181 Law vs. ritual and religion as the dominant paradigm .......................................................... 181 2 Law as a distinct field of knowledge and practice ................................................................ 187 Legitimate rule: The role of law ........................................................................................... 229 Conclusions .......................................................................................................................... 237 Bibliography ............................................................................................................................ 239 3 Note This work has been submitted as the author’s PhD-thesis in 2004. Since then, the text has been revised to take into account suggestions made by the two dissertation advisers, Professor Rudolf Wagner and Ulrich Lau, for which I am grateful to both of them. Other revisions have been made to take into account the author’s continuing work, together with Ulrich Lau, on the Zhangjiashan legal texts, which resulted in Lau and Lüdke 2012. Differences to Lau and Lüdke 2012 result either from insights gained after the latter work went to print, or, in rare cases, from different approaches of the two co-authors to specific issues. Primary sources and secondary literature published since 2004 have been added where these are necessary to document updates in the text. In a very selective way, secondary literature has also been introduced to position the original arguments in relation to more recent discussions. A comprehensive account of the vast literature on the Zhangjiashan legal texts published after 2004 would have resulted in a completely different kind of work, which would have been neither appropriate nor desirable. This thesis dates to a period when the Zhangjiashan texts just started to receive scholarly attention. Since then, the amount of publications dealing with them and related aspects has multiplied (Barbieri-Low and Yates 2016, in their bibliography of secondary sources in Asian languages, list an estimated 1500 works on 98 pages). Nonetheless, the author hopes that his work remains a valid contribution to the field. Erlangen, October 2016 Preface While writing this study, a number of debts have accumulated. I probably owe most to Ulrich Lau, who first introduced me to the study of early Chinese law and showed me the riches to be derived from this still unexploited mine. I probably would never have stumbled by myself on this field, 4 which so far has not been in the mainstream of Sinology due to a lack of sources and attention. When Ulrich Lau, after a seminar in Heidelberg on the Zouyanshu, suggested working together on a translation of this source, this became the beginning of a project that has since taken on a life of its own. We soon realised that an accessible translation of the Zouyanshu not only required extensive annotation, but also a detailed analysis of the legal institutions that form its background. At some stage, we decided to present this work in the form of a dictionary of the legal terminology used in the Zouyanshu. Over the years, this has developed into a detailed reconstruction of many of the core concepts of Qin and Han law on the basis of the presently available received and palaeographic sources. This work has been greatly furthered (and also greatly prolonged due to the necessary revisions) by the publication of the Ernian lüling collection of statutes, dating to 186 BC and unearthed from the same tomb in Zhangjiashan as the Zouyanshu. The results of this co-operative project will be published as a separate volume under the envisaged title The Craft and Terminology of Early Chinese Law – A study of the Zouyanshu and the Ernian lüling. While the present study has grown out of this larger project, it affords me the opportunity to look at some of the wider issues concerning the evolving professional field of legal practice in early China. Throughout the pages to follow, I have included only few cross-references to the larger forthcoming work, to which the reader is directed for a detailed annotation of all the Zouyanshu passages quoted and for translations of most of the Ernian lüling stipulations mentioned, as well as for a detailed discussion of the legal terms and concepts which for the most part are only very briefly explained in the following chapters. Our co-operation on the Zouyanshu project has been a fortunate one for me, as I have learned much from Ulrich Lau which also has benefited the present work, not least from his keen interest in social institutions as a foundation of society and culture, his wide knowledge of early Chinese legal and non-legal sources, and his subtle understanding of the Chinese language, which is informed by an expertise in historical phonology – both a rarity among sinologists and an absolute 5 prerequisite for the work with palaeographic material. At the same time, I also need to apologise for the many disruptions in our work, caused by the exigencies of life and my youthful optimism which again and again caused me to gravely underestimate the effort involved. The support of a number of other people has been essential for my work. I am grateful to all of them: Peng Hao 彭浩, of the Jingzhou museum 荊州地區博物館 which has excavated the Zhangjiashan material, has given indispensable help in spending much time discussing the originals of this find at a time when the reproductions were not yet published. Ziva Ben Porat extended a generous invitation to a conference on “Mediated Testimonies” held by the Tel Aviv University’s Porter Institute in April 2002. Without this, the second chapter of this study probably would never have been written. Enno Giele not only furnished me with his as yet unpublished dissertation, but also provided stimulating insights into a number of relevant questions. Laura Skosey generously sent me a copy of her exciting dissertation. Catherine Yeh again and again brought a warmth and brightness that was good to have during long lonely hours among books and in front of computers. Most important has been the unwavering support given to me by my parents, Antonia and Karl Josef Lüdke, throughout the many years of my study of this unusual choice of a subject. Throughout the last ten years, it has been a very special privilege for me to study and work with Professor Rudolf Wagner at the Institute of Chinese Studies at Heidelberg University – not only because of the ideal conditions and the creative atmosphere he has established, his irresistible intellectual presence, and the continuous challenge to his students to realise their potential to the 6 fullest. Without Professor Wagner, this work would neither have begun, as the enthusiasm for China he has helped to kindle kept me into Chinese studies, nor would it have been finished. I am particularly grateful for the rare combination of complete intellectual freedom afforded to me on the one hand, and a very keen and critical interest in my work on the other. His suggestions on a number of minor and major matters have been indispensable. For all remaining mistakes and shortcomings, I alone carry full responsibility. Heidelberg, December 2003 7 Introduction: Law in China This study is concerned with law in early China. It thus touches on a very fundamental issue: Can we speak at all of law in the context of China? The one end of the spectrum of possible answers is marked by authors like Thomas B. Stephens, who, in a study of the Shanghai
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