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Civil Laws and Civil Justice in Early China By Zhaoyang Zhang A dissertation submitted in partial satisfaction of the Requirements for the degree of Doctor of Philosophy in History In the Graduate Division of the University of California, Berkeley Committee in charge: Professor Michael Nylan, Chair Professor David Johnson Professor David Cohen Fall 2010 Copyright 2010 by Zhang, Zhaoyang All rights reserved Abstract Civil Laws and Civil Justice in Early China by Zhaoyang Zhang Doctor of Philosophy in History University of California, Berkeley Professor Michael Nylan, Chair Civil laws and civil justice in early China have not received sufficient scholarly attention, because scholars tend to assume that laws in pre-modern China were merely criminal laws promulgated and enforced to maintain public order. This dissertation challenges that view by analyzing excavated evidence and reexamining transmitted evidence. Chapter One establishes the existence of civil laws in early China by examining non- criminal case reports preserved in the Juyan 居延 strips and by assessing the role of district bailiffs in handling civil disputes. Chapter Two further demonstrates the existence of civil laws and reveals the civil justice system by studying domestic statutes and how two cases of inheritance disputes preserved in the Comprehensive Discussion of Customs (Fengsu tongyi 風俗通義, comp. ca. 200) illustrate the application of these statutes. Chapter Three examines two important civil legal concepts: zhi 直 (a straight account of the facts) and mingfen 名分 (title and portion) to reveal the underlining notions that uniformly guided the application of the civil laws. Chapter Four, the concluding chapter, goes beyond the boundaries of civil laws to address larger issues, such as the legal ideal of reforming people’s morals to reduce lawsuits, the relationship between rituals and laws, and the Classics as a source of legal authority in litigations. Overall, I conclude that civil laws and civil justice existed in early China; and that this distinctive body of civil laws, while not systematically codified, were substantial, sophisticated, and empire-wide in application and authority. 1 TABLE OF CONTENTS Abstract......................................................................................................................... 1 Table of Contents.............................……….................................................................. i Acknowledgements....................................................................................................... ii Introduction.................................................................................................................. iii Chapter One: The Existence of Civil Laws in Early China................….............…..... 1 Chapter Two: Chapter Two: Domestic Justice System.....................…................….. 37 Chapter Three: The Legal Concepts Zhi and Mingfen ...........…...........................… 72 Concluding Chapter: Beyond Civil Laws….........………………………………….106 Appendix 1: The Case of Li 栗 vs. Kou En 寇恩 (A.D. 28)...........................…….. 137 Appendix 2: A Survey on Juyan Legal Cases........................………………………141 Appendix 3: A Tentative Study on “Divine Trials”………….………….....……….146 Appendix 4: The Demand of Ordinary People for Justice……………………….…149 Bibliography.............................................................................................................. 155 i Acknowledgments Throughout the process of writing this dissertation, I have received invaluable help from many individuals: my advisors, fellow Ph.D. students, English tutors, and many others in various ways. I would like to take this opportunity to recognize my debts to all of them. I would like to thank all my advisors and teachers, and two of them, in particular. Professor Michael Nylan is always supportive of my research and encourages me to take up challenges. Without her encouragement and guidance, I couldn’t possibly have completed my Ph.D. studies and my dissertation project. Professor David Johnson has given me invaluable advice in helping me better shape my arguments and articulate my ideas in his seminars and during the process of my dissertation writing. Thanks to both of them for their help and support. I would also like to thank my fellow Ph.D. students, especially Amanda Buster, Luke Habberstad, and Xing Hang who have read pieces of my writing and given me their critiques. Xing Hang also helped me to relieve my anxieties and stress by introducing to me now my favorite frozen yogurt and the Bay Area’s great restaurants. I thank my two English tutors, Michael Rodriguez and his wife Janet who voluntarily helped me to improve my English skills. I should also thank Robert Litz, who helped me to polish my writing. I should thank all the staff at East Asian Library. In particular, Jianye He, Kaichun Guo, and Bruce Williams (and his wife Meiling). They greatly facilitated my research by helping me track down references and suggesting new books to me. At last, I am greatly grateful to my parents for their support and family education that have shaped my basic values and my belief in hard work. Zhang Zhaoyang September 1st, 2010 ii Introduction The nature, reach, and application of civil laws and civil justice in early China have not received the scholarly attention the subject deserves. To date, the general scholarly consensus has been to see the official legal apparatus for early China, and indeed, all of pre-modern China, as devoted exclusively to the administration of criminal justice. That same scholarly consensus until recently assumed that all civil matters were settled by custom or usage. For example, Ōba Osamu 大庭脩, in his influential work, Shin Kan hōseishi no kenkyū 秦漢法制史の研究 (Research regarding the Laws of the Qin and Han, 1982), quotes and agrees with his predecessor Tanaka Kaoru’s 田中薰 opinion that pre-modern China developed a unique legal system which Ōba and Tanaka designate as a statute-ordinance system (Lüling 律令). In this system, the laws could be divided into two parts: statutes (lü 律) and ordinances (ling 令). Statutes regulated the punishment of criminals, while ordinances comprised regulations similar to administrative laws.1 Such characterizations do not consider the possible existence of civil laws and civil justice in the legal system. Similarly, A. F. P. Hulsewé, concluded in 1986: It is characteristic for the whole of traditional Chinese law as embodied in the codes that it is solely concerned with public matters, being administrative and penal. Private law, pertaining to the family and to trade and commerce other than the state monopolies, remained outside the field of regimentation by public authorities and continued to be ruled by custom and usage.2 And, as recently as 2006, Michael Loewe wrote, The statutes and ordinances of Qin and Han did not set out to protect men and women from the oppression of officials, though such intentions are sometimes visible in their provisions. Their purpose was to maintain law and order and to control the people and their work on the land. Carefully regulated sanctions and punishments instructed officials how to eliminate crime.3 Understandably, these scholars, prior to the most recent excavations, drew their conclusions from the fact that the transmitted laws of pre-modern China and even the excavated Qin laws (dated 306-217 B.C.) from Shuihudi 睡虎地 in 19754 are 1 Ōba Osamu 大庭脩, Shin Kan hōseishi no kenkyū 秦漢法制史の研究 (Tōkyō: Sōbunsha, 1982), 5- 19. Ōba’s work was prior to the Zhangjiashan excavation. I will discuss how the effect of the Zhangjiashan excavation has had upon the legal history of early China in this introduction. 2 The Cambridge History of China, Vol. 1: The Ch’in and Han Empires, 221 B.C.-A.D. 220, eds. Michael Loewe and Denis Twitchett (Cambridge: Cambridge University Press, 1986) [Hereafter CHC], 525. 3 Michael Loewe, The Government of the Qin and Han Empires (Cambridge: Hackett Publishing Company, 2006), 120. 4 For the Shuihudi legal documents, See Shuihudi Qinmu zhujian 睡虎地秦墓竹簡, ed. Shuihudi Qinmu zhujian Zhengli xiaozu 睡虎地秦墓竹簡整理小組 (Beijing: Wenwu chubanshe, 1990) [Hereafter, SHD]. The SHD documents are rich and detailed in content and diverse in types, and they iii apparently preoccupied with public matters. A cursory look at the excavated Qin laws or the better-known transmitted Tang Code illustrates their preoccupation with penal laws.5 Evidence excavated from Zhangjiashan 張家山, first published in 2001, however, offers an opportunity to reassess and revise this view.6 The Zhangjiashan strips were excavated from Tomb 247 at Jiangling 江陵, Hubei 湖北 by archaeologists from the Jingzhou 荊州 Museum in 1983. There are 1,236 strips in total, dated from 202 to 186 B.C.7 These finds were first reported in the Wenwu 文物 in 1985, with the full set of strips published in 2001 in the Zhangjiashan Hanmu zhujian 張家山漢墓竹簡 (Strips from a Han Tomb at Zhangjiashan), with a revised edition in 2006.8 The editors classified the strips into eight texts mostly under their original titles, of which the Zouyan shu 奏讞書 (Reports of Cases to Be Reviewed, 228 strips in total) and Ernian lü ling 二年律令 (The Statutes and Ordinances of The Second Year, 526 strips in total) are very important legal documents. The Zouyan shu is a collection of twenty-two legal cases presumed to mostly have taken place during the period of 202 to 186 B.C. Zou 奏 means “to report,” and Yan 讞 refers to the discussion of sentences. The collection reflects the appeal procedure
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