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Social Change and Written Law in Early Chinese Legal Thought

Published online by Cambridge University Press:  06 February 2014

Ernest Caldwell
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What societal factors prompt the shift from legal practices based upon oral or customary law to the development of new legal institutions predicated upon bodies of written law? Certainly the presence within a given society of a functional writing system, whether indigenously developed or cross-culturally borrowed, is a prerequisite for the creation of written law. Several scholars, however, notably anthropologists and sociologists, have argued that the mere presence of writing does not necessarily result in the immediate, or inevitable, development of certain sociopolitical institutions dependent upon the technological capacities that writing offers. These same scholars warn that assigning such a monocausal role to writing reduces the multifaceted complexity of a social phenomenon, such as the development of written law, to a teleological inevitability. Instead, many believe that writing provides what Jack Goody has called “potentialities” for types of developments and alternative configurations of social organization. That is to say, the technological capacities of writing provide the potential for specific institutional developments, such as the use of written law; however, for such potential to be actualized, there must first exist within the society an acknowledgement of a social need, with a concomitant consciousness that that need can best be satisfied through the implementation of a form of writing.

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Law and History Review , Volume 32 , Issue 1 , February 2014 , pp. 1 - 30
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Copyright © the American Society for Legal History, Inc. 2014 

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References

1. Throughout this article I will refrain from using the term “codification” when referring to the collections of written law in ancient China prior to the third century B.C.E. Even modern attempts to produce a universal definition typically fail in the face of the diversity of theoretical and interpretative traditions informing codified legal systems throughout the world. The problem is multiplied when attempting to apply such a term anachronistically to the legal traditions of the ancient world. For attempts to construct a multitiered conceptual paradigm for studying “codification” in chronologically and geographically diverse legal traditions, see Rosen, Mark D., “What Has Happened to the Common Law? Recent American Codifications, and Their Impact on Judicial Practice and the Law's Subsequent Development,” Wisconsin Law Review 5 (1994): 1119–286Google Scholar; and MacCormack, Geoffrey, “The Transmission of Penal Law (lü) from the Han to the T'ang: A Contribution to the Study of the Early History of Codification in China,” Revue Internationale Des Droits De L'antiquité 51 (2004): 47–83Google Scholar. For more critical assessments of the utility of such a term applied to ancient civilizations, see Roth, Martha T., “The Law Collection of King Hammurabi: Toward an Understanding of Codification and Text,” in Codification Des Lois Dans L'Antiquite, ed. Levy, Edmond (Paris: De Boccard, 2000), 9–31Google Scholar; Raymond Westbrook, “Codfication and Canonization,” in Codification Des Lois Dans L'Antiquite, 33–47; Davies, John K., “Deconstructing Gortyn: When Is a Code a Code?” in Greek Law in Its Political Setting: Justification Not Justice, ed. Foxhall, Lin and Lewis, Andrew (Oxford: Oxford University Press, 1996), 33–56CrossRefGoogle Scholar.

2. Classic examples of these debates can be found in Goody, Jack, The Power of the Written Tradition (Washington D.C.: Smithsonian Institution, 2000)Google Scholar; Goody, Jack, The Logic of Writing and the Organization of Society (Cambridge: Cambridge University Press, 1986)CrossRefGoogle Scholar; Havelock, Erik, The Muse Learns to Write: Reflections on Orality and Literacy from Antiquity to the Present (New Haven: Yale University Press, 1986)Google Scholar; and Ong, Walter, Orality and Literacy, 2nd ed. (London and New York: Routledge, 2002)Google Scholar. Such scholars also show that although writing as a technology provides new possibilities for the transmission of knowledge, the power and presence of the oral is retained well after writing takes the stage.

3. Some of Jack Goody's earlier work received much criticism for implicitly ascribing to writing a “monocausal” role in the development of particular sociopolitical institutions. For an overview of these critiques and Goody's response, see Goody, The Power of the Written Tradition, 2–9.

4. Ancient Mesopotamian civilizations, for example, made use of a complex writing system as early as the Jemdet Nasr period (c. 3200–3000 BCE); however, the earliest collections of written laws, such as the Laws of Ur-Namma (c. 2100 BCE), Laws of Eshnunna (c. 1770 BCE), and the Laws of Hammurabi (c. 1750 BCE), were promulgated over a millennium after the introduction of writing. See Roth, Martha T., Law Collections from Mesopotamia and Asia Minor (Atlanta: Society of Biblical Literature and Scholars Press, 1997)Google Scholar.

5. For an excellent analysis of both sides of these arguments for the case of Roman law, see Eder, Walter, “The Political Significance of the Codification of Law in Archaic Societies: An Unconventional Hypothesis,” in Social Struggles in Archaic Rome: New Perspectives on the Conflict of the Orders, ed. Raaflaub, Kurt A. (Malden: Blackwell Publishing Ltd, 2005), 239–67CrossRefGoogle Scholar. I will return to these debates later in this article.

6. See for example, Chü, T'ung-tsu, Law and Society in Traditional China (Paris: Mouton, 1961)Google Scholar; MacCormack, “The Transmission of Penal Law (lü) from the Han to the T'ang:”; and Head, John W. and Wang, Yanping, Law Codes in Dynastic China: A Synopsis of Chinese Legal History in the Thirty Centuries from Zhou to Qing (Durham, N.C.: Carolina Academic Press, 2005)Google Scholar.

7. Following Scott Cook and others, I acknowledge that terms such as “Confucian” and “Legalist” are anachronistic, categorical labels applied to various Warring States Period philosophers by later scholars. For this article, I merely use the term “Confucian” to describe those early Chinese philosophers who either cited or openly advocated those theories of statecraft predicated upon virtuous rule and ascribed to the historical figure of Confucius. Likewise, the term “Legalist” refers to the theories of statecraft predicated upon bureaucratic centralization, strict laws, and harsh punishments and ascribed to thinkers such as Shang Yang or Han Feizi. In neither case do I imply a direct lineage or self-identifying “school” of thought. See for example, Cook, Scott, “The Use and Abuse of History in Early China from Xunzi to Lüshi Chunqiu,” Asia Major 18 (2006): 48–78Google Scholar.

8. This interpretation is based upon a particular passage in the Zuo zhuan which is dealt with in section II.

9. The chronology of early China can be daunting for those not familiar with its intricacies. The Zhou royal family ostensibly governed the central plains region of China from roughly 1046 BCE to 256 BCE. Their reign is divided into two large periods, the Western Zhou (1046–771 BCE) and the Eastern Zhou (771–221 BCE). The latter is further subdivided into two additional eras, the Spring and Autumn Period (c. 771–476 BCE) and the Warring States Period (c. 476–221 BCE).

10. There are arguments over the relationship between the three commentaries. Many believe that the Gongyang zhuan 公羊傳 and Guliang zhuan 穀梁傳 are commentaries for the “New Text” version of the Chun qiu, and that the Zuo zhuan is a commentary on the “Old Text” version of the Chun qiu that survived in the Han imperial archive and was written in old style Chinese characters (guwen 古文). For a brief synopsis of these arguments see Cheng, Anne, “Ch'un ch'iu, Kung yang, Ku liang and Tso chuan,” in Early Chinese Texts: A Bibliographical Guide, ed. Loewe, Michael (Berkeley: SSEC and Institute of East Asian Studies, 1993), 67–76Google Scholar.

11. The kingdom of Lu was a relatively small polity occupying parts of modern day Shandong Province.

12. Originally these two texts circulated as two independent documents; however, the Jin dynasty commentator on the Zuo zhuan, Du Yu (222–284 CE) purportedly combined the two texts into its current, single document format. See Saden kaisen, 6–7. All citations to the Zuo zhuan will be based on Kōkō, Takezoe, Saden kaisen (Taipei: Tiangong shuju, 1998)Google Scholar. Unless otherwise stated, all translations are those of the author.

13. Cheng, “Ch'un ch'iu, Kung yang, Ku liang and Tso chuan,” 70.

14. Many scholars today argue that much of the dialogic contents of the Zuo zhuan should be dated to the Warring States Period. They also claim that the text as a whole represents an attempt to come to terms with the developmental trajectory of early Chinese society and, as such, represents a developing style of Chinese historiography. See, for example, Li, Wai-yee, The Readability of the Past in Early Chinese Historiography (Cambridge, MA: Harvard University Asia Center, 2007)Google Scholar; and Schaberg, David, A Patterned Past: Form and thought in early Chinese historiography (Cambridge, MA: Harvard University Press, 2001)Google Scholar. For arguments that much of the Zuo zhuan contents should be accepted as contemporary to the late Spring and Autumn and early Warring States periods, see Pines, Yuri, “Intellectual Change in the Chunqiu Period: The Reliability of the Speeches in the Zuo zhuan as Sources of Chunqiu Intellectual History,” Early China 22 (1997): 76–132CrossRefGoogle Scholar.

15. This argument is similar to a recent statement by Scott Cook that “[how] accurate these may reflect statements actually made at the purposed times is, certainly, open to question. They do, however, present an intellectual picture of the times that is historically quite plausible and, for all we know, may well have been based on reliable historical record.” See Cook, “The Use and Abuse of History,” 47, fn. 3.

16. For an overview of the establishment and later expansion of the Western Zhou, see Shaughnessy, Edward L., “Western Zhou History,” in The Cambridge History of Ancient China: From the origins of civilization to 221 B.C., ed. Loewe, Michael and Shaughnessy, Edward L. (Cambridge: Cambridge University Press, 1999), 292–351CrossRefGoogle Scholar.

17. The role of weakening kinship affiliation in the decline of Western Zhou central authority has been thoroughly treated in Li, Feng, Landscape and Power in Early China: The Crisis and Fall of the Western Zhou, 1045–771 BC (Cambridge: Cambridge University Press, 2006)Google Scholar.

18. The religio-legal significance of writing within the context of early Chinese covenants has been well documented by Dobson, W.A.C.H, “Some Legal Instruments of Ancient China: The Ming and the Meng,” in Wen-lin: Studies in the Chinese Humanities, ed. Chow, Tse-tsung (Milwaukee: University of Wisconsin Press, 1968)Google Scholar; and Lewis, Mark Edward, Writing and Authority in Early China (New York: SUNY, 1999), 18–21Google Scholar.

19. For a detailed analysis of the ba system and its implications for Eastern Zhou geopolitics, see Liu, Boji, Chun qiu huimeng zhengzhi, 2nd ed. (Taipei: Wen jing shu ju, 1977)Google Scholar.

20. von Falkenhausen, Lothar, Chinese Society in the Age of Confucius (1000–250 BC): The Archaeological Evidence (Los Angeles: Cotsen Institute of Archaeology, University of California, Los Angeles, 2006)CrossRefGoogle Scholar, esp. ch. 7 and 8.

21. Recent archaeological excavations at Houma and Wenxian, both in Shanxi province, yielded thousands of these covenant “contracts” from the kingdom of Jin that date to the fifth century BCE. Among these texts are several thousand “loyalty” and “pledge” texts, each specifically naming an individual who pledges loyalty to an unnamed covenant lord, zhu. See Weld, Susan Roosevelt, “The Covenant Texts from Houma and Wenxian,” in New Sources of Early Chinese History: An Introduction to the Reading of Inscriptions and Manuscripts, ed. Loewe, Michael and Shaughnessy, Edward (Berkeley: SSEC and The Institute of East Asian Studies, University of California, Berkeley, 1997)Google Scholar, esp. 140–48.

22. The majority of scholarly books and articles overlook the importance of this passage and instead refer to the casting of the bronze penal texts in the kingdom of Zheng (see next section below) as the first textual reference to written law in China. The only source I have located that makes direct reference to this passage when discussing written law is Creel, Herrlee Glessner, “Legal Institutions and Procedures During the Chou Dynasty,” in Essays on China's Legal Tradition, ed. Cohen, Jerome Alan, Edwards, R. Randle, and Fu-mei, Chen Chang (Princeton: Princeton University Press, 1980), 34–37Google Scholar.

23. Zuo zhuan, Wen gong 6: Saiden kaisen, 596–597.

24. Hsu, Cho-yun, Ancient China in Transition: An Analysis of Social Mobility, 722–222 B.C. (Stanford: Stanford University Press, 1965), 82Google Scholar.

25. Hsu, Cho-yun, “The Spring and Autumn Period,” in The Cambridge History of Ancient China: From the Origins of Civilization to 221 B.C., ed. Loewe, Michael and Shaughnessy, Edward (Cambridge: Cambridge University Press, 1999), 558–60Google Scholar.

26. Perhaps the most famous use of the term in early China is found in Confucius' theory of the “rectification of names (zhengming 正名). Confucius argued that disorder arose when standardized/proper hierarchies within society and politics (i.e., names) were not acknowledged or practiced. Sociopolitical order could only be restored if these hierarchies were rectified according to a prescribed standard. Relatedly, the word zheng 正 is also used adjectivally in early China to mean “precise,” “standardized,” “correct,” or “upright,”

27. Indeed the meanings ascribed to the graph fa 法 in early China are much debated. For an overview of the different meanings, see Perry Ernest Caldwell IV, “Hunting the Xiezhai: Mythology, Methodology, and an Alternative Explication of [灋]” (MA Thesis, University of Kansas, 2006); and Hansen, Chad, “Fa (Standards: Laws) and Meaning Changes in Chinese Philosophy,” Philosophy East and West 44 (1994): 435–88CrossRefGoogle Scholar.

28. The similar use of the term bi 辟 as “compilation” referring to collections of written law can be found in Shi jing 詩經 (Siku quanshu ed.), 19.44a–b and Guanzi 管子 (Siku quanshu ed.), 4.3b and 4.5b.

29. In early China, aristocratic lineages produced elaborate collections of bronze vessels that were typically stored in ancestral temples and filled with sacrificial food and wine offerings during lineage ceremonies. Some of these vessels are quite small, whereas others weigh more than 100 kg. Furthermore, these bronze vessels often contain inscriptions, ranging from a single graph to several hundred graphs, which record various activities, meetings, battles, and even legal suits. For an overview of the various styles of bronze vessels used during the Western Zhou, see Rawson, Jessica, Ancient Chinese Bronzes from the Arthur M. Sackler Collections, 2 vols. (Washington, D.C. and Cambridge: Arthur M. Sackler Foundation; Arthur M. Sackler Museum, Harvard University, 1990)Google Scholar. For the significance of bronze vessel inscriptions to Chinese historiography (especially legal historiography), see Laura Skosey, “The Legal System and Legal Tradition of the Western Zhou (ca. 1045–771 B.C.E.)” (PhD diss., University of Chicago, 1996).

30. An excellent overview of Western Zhou investiture inscriptions can be found in Kane, Virginia C., “Aspects of Western Chou Appointment Inscriptions: The Charge, the Gifts, and the Response,” Early China, 8 (1982–1983)CrossRefGoogle Scholar.

31. For more on the role of written documents within Western Zhou investiture ceremonies, particularly the conferral of royal commands, see Shaughnessy, Edward L., “The Writing of a Late Western Zhou Bronze Inscription,” Asiatische Studien/Etudes Asiatiques 61 (2007): 865–68Google Scholar.

32. The potential contributions of writing to various administrative spheres, particularly law and archiving, have been studied by Goody, Jack, The Logic of Writing and the Organization of Society (Cambridge: Cambridge University Press, 1986), 87–171CrossRefGoogle Scholar.

33. Lun yu (Siku quanshu ed.), 14.5b.

34. See for example, Maspero, Henri, “Le Régime féodal et la proriété foncière dans la Chine antique” in Mélanges posthumes sur les religions et l'histoire de la Chine, ed. Maspero, Henri (Paris: Civilisations du Sud, S.A.E.P., 1950)Google Scholar; MacCormack, Geoffrey, The Spirit of Traditional Chinese Law (Athens: University of Georgia Press, 1995)Google Scholar; Head and Wang, Law Codes in Dynastic China; and Chü, T'ung-tsu, Law and Society in Traditional China (Paris: Mouton, 1961)Google Scholar.

35. The term xing shu literally translates as penal (xing) text (shu).

36. Zuo zhuan, Zhao gong 6: Saden kaisen, 1440–44.

37. See Head and Wang, Law Codes in Dynastic China, ch. 2. For an examination of these debates as they resurfaced in late imperial and early republican China, see Jenco, Leigh, “Rule by Man and Rule by Law in Early Republican China: Contributions to a Theoretical Debate,” The Journal of Asian Studies 2010, 69: 181–203CrossRefGoogle Scholar.

38. Western Zhou bronze inscriptions provide the earliest evidence of “trials” in early China, and these typically depict litigants taking their dispute before an official seeking judgment. See Laura Skosey, “The Legal System and Legal Tradition of the Western Zhou, 103–6, 111–15, 118–21. In addition, there are several references within the Zuo zhuan, as well as Warring States texts, depicting personal disagreements being articulated in front of a ruler or high ranking minister. References to law and legal proceedings found in the Zuo zhuan and other commentaries to the Chun qiu are collected in Zhang, Yuhao, “《Chun qiu》san zhuan falü ziliao jizhu,” in Fa lü wen xian zheng li yu yan jiu, ed. Zhang, Boyuan (Beijing: Beijing daxue chuban she, 2005), 254–308Google Scholar.

39. See for example, the discussion of Confucian ideals of law in, MacCormack, Spirit of Traditional Chinese Law, 2–8.

40. Schaberg, A Patterned Past, 293–95; and Li, The Readability of the Past in Early Chinese Historiography, 363–65.

41. Zuo zhuan, Zhao 29: Saden Kaisen, 1745–46.

42. One problematic aspect of this passage concerns the person to whom the xingshu is ascribed. The Zuo zhuan does contain several passages referencing Fan Xuanzi, of the Fan ministerial clan; however, little evidence exists for his ever having composed a legal text. Further complicating matters, the appended criticism of Confucius cites the textual content of the xingshu as originating from Zhao Dun. He states: “The punishments of Xuanzi are those from the muster at Yi”. It is possible that the Xuanzi to whom Confucius refers is none other than the aforementioned Zhao Dun. See Schaberg, A Patterned Past, 430, n. 150.

43. Hsu, Ancient China in Transition, 82–83.

44. The standards to which Confucius is referring are distinct models of behavior predicated upon a social hierarchy and entrusted by the former Zhou kings to the founder of the kingdom of Jin, Tang Shu.

45. Zuo zhuan, Zhao 29: Saden kaisen, 1745.

46. See, for example, Head and Wang, Law Codes in Dynastic China 48–58.

47. The translation of these two poetic references, both found in the Classic of Poetry, follows that of David Schaberg. He argues that the purpose of these references is to show that the person giving a gift is equally valuable as the gift. For example, in the “Graceful Girl,” the author is given a red pipe, yet he values the “gift not for itself but for the beauty of the giver.” To Schaberg, this implies condemnation of the killing Deng Xi (the giver of laws), while retaining and valuing his gift (Bamboo Book of Punishments). Schaberg, A Patterned Past, 299–300.

48. This quote is from the Shi jing poem “Gantang” (Mao #16). The translation follows Waley, Arthur, The Book of Songs: The Ancient Chinese Classic of Poetry (New York: Grove Press, 1996)Google Scholar.

49. Zuo zhuan, Ding 9: Saden kaisen, 1835–36.

50. In his work Saiden kaisen, Takezoe Kōkō collects the commentaries of scholars from ~200 C.E. to the 1800s. For this particular passage, Takezoe merely states that the government was at the time blighted and confused (鄭此時秕政紛紛), see Saiden kaisen, 1835.

51. Zuo zhuan, Ai 3: Saden kaisen, 1897–98.

52. See Saiden kaisen, 1898.

53. By the end of the Warring States period the term zhang was not used to represent a specific legal document. Its legal meaning was replaced by lü (律), the term still used today as the word for a legal statute. For other early Chinese texts that ascribe legal significance to the term jiu zhang 舊章, see Shang shu zhushu 尚書注疏 (Siku quanshu ed.), 16.4b and Shi jing zhushu 詩經注疏 (Siku quanshu ed.), 24.62b.

54. For more information on the authenticity of the Zhou li and arguments over its dates, see Boltz, William, “Chou li,” in Early Chinese Texts: A Bibliographical Guide, ed. Loewe, Michael (Berkeley: SSEC and Institute of East Asian Studies, 1993), 24–32Google Scholar.

55. Zhou li jinzhu jinyi (Taipei: Taiwan Shangwu, 1972), 14–15Google Scholar.

56. Mozi xiangu (Beijing: Zhonghua shuju, 1986), 552Google Scholar.

57. 2000ES7S: 4A. This alphanumeric citation and the following one are based on Jian, Wei ed., Ejina Hanjian (Guangxi: Guangxi shifan daxue chuban she, 2005)Google Scholar.

58. 2000ES9SF4: 3

59. Many early Greek legal references do imply a desire for laws to be spread throughout all social strata; however, the level of “empowerment” afforded by such action is difficult to assess. See Thomas, Rosalind, “Written in Stone? Liberty, Equality, Orality, and the Codification of Law,” in Greek Law in its Political Setting: Justification not Justice, ed. Foxhall, Lin and Lewis, Andrew (Oxford: Oxford University Press, 1996), 9–32CrossRefGoogle Scholar.

60. Gagarin, Michael, Writing Greek Law (Cambridge: Cambridge University Press, 2008), 72–76CrossRefGoogle Scholar.

61. Papakonstantinou, Zinon, “Written Law, Literacy, and Social Conflict in Archaic and Classical Crete,” The Ancient History Bulletin 16 (2002): 149–50Google Scholar.

62. Eder, “Political Signficance of the Codification of Law,” 239.

63. Much like Confucius and Shu Xiang, Eder notes that codification could be viewed as potentially eliminating absolute authority over the law, where the loss of arbitrary jurisdiction (in terms of adjudication) would limit scope of aristocratic capriciousness. However, he argues that the content of the law was still determined by the aristocracy, in that legislation descended from the aristocracy. “‘Fixed’ law need not necessarily mean ‘just law.’” This is strengthened by the fact that very few of the plebeians demanded concessions are represented in codified laws. Eder, “Political Signficance of the Codification of Law,” 252–53.

64. The danger was indeed real. There are several recorded instances of dukes of various kingdoms being killed by ministerial families. Furthermore, the kingdom of Jin, known for having high levels of lineage conflict, was eventually partitioned off into three distinct kingdoms, Han 韓, Wei 魏, and Zhao 趙, each ruled by a former Jin ministerial family.

65. VerSteeg, Russ, Early Mesopotamian Law (Durham: Carolina Academic Press, 2000), 30–33Google Scholar.

66. Gagarin, Writing Greek Law, 1.