This book achieves something that I did not think I would see in my lifetime: a scholarly English translation of the legal texts from the Han-dynasty tomb at Zhangjiashan 張家山. There was a fine German translation of one set of documents from the corpus, the so-called Zouyanshu 奏讞書,Footnote 1 but Anthony J. Barbieri-Low and Robin D. S. Yates have added the much longer Ernian lüling 二年律令, as well as an extensive introductory study (which takes up an entire volume), producing not only a reliable translation of all the legal texts from Zhangjiashan currently available, but also an authoritative overview of early imperial Chinese law. They are to be commended for offering an enormously useful work that will undoubtedly be consulted for decades. Scattered comments (e.g., pp. xv and 46) attest to the considerable help that they received over the years from students and research assistants.
Volume 1 (pp. 1–377) of this work contains what is now the first book to be consulted—certainly in English, but perhaps in any language—on the workings and specialised terminology of early Chinese law. After a careful review of the discovery of the tomb and its contents (pp. 3–47), Barbieri-Low and Yates move on to a long and copiously annotated discussion of major legal topics, including forms of legislation (pp. 68–88), the prosecution of criminal cases (pp. 111–186), and types of punishment (pp. 187–209). This introductory study is a good indication of how far our understanding of early Chinese law has come in the past forty years, informed by a bonanza of previously unimagined excavated documents. The authors’ discussion of legal terminology is consistently persuasive, as are their proposed English renderings. Surprisingly, the keyword fa 法 is not accorded any explicit treatment; their regular translation of the term as “[legal] principles” is unquestionably, if silently, indebted to the work of Tomiya Itaru 冨谷至.Footnote 2
One of many possible benefits of the authors’ survey is that it will help historians trace continuities and discontinuities with later legal practice. Occasionally, Barbieri-Low and Yates note parallels with later dynasties (e.g., p. 101 n.22, converting testimony into standardised language that witnesses themselves would not have used; and p. 151, the perceived importance of qualified medical witnesses), and I noticed a few others, including the pattern that legal cases would be prepared by low-ranking officials (p. 4); and the employment of convicts in law enforcement (pp. 193–195), which led to notorious abuses in later eras.Footnote 3 In one case (pp. 1394–1416), the investigators’ decision to search for the suspect among male prostitutes reminded me of the Qing 清 fixation on guanggun 光棍 (literally “bare branches”, or surplus males who had no hope of establishing a normal family, and were accordingly regarded as social pests),Footnote 4 and made me wonder whether there was a significant sex-ratio imbalance as early as the Western Han.
Perhaps the authors’ most original observation is that the legal materials include considerable sections that are embellished, if not simply fictitious. A good example is an infamous case (by far the most widely studied in the corpus) involving a young widow who dared to copulate with another man while her unburied husband lay in the next room (pp. 1376–1385). Barbieri-Low and Yates argue that the first part consists of the humdrum facts and records, whereas the second, which starts on a new strip marked by a black dot, “appears to derive from a highly polished written exemplar” and is intended to demonstrate “the brilliance of low-level scribes in solving difficult cases” (p. 1378; cf. pp. 100–101). They contend that much of Zhangjiashan corpus has to be interpreted as an artful re-composition of this kind.Footnote 5 In support of this thesis, they also observe that many of the names in the documents are suspiciously meaningful, including an eloper named Border Jumper and a violent fugitive named Martial (pp. 103–104). Such telltale names are a newly appreciated feature of early Chinese prose, including both philosophical and economic literature.Footnote 6
With the understanding that I place this study at the pinnacle of the field, I must point out some weaknesses. Most important is the authors’ neglect of legal philosophy. Disappointingly, they are content to attribute the Zhangjiashan materials and underlying legal thinking to “Legalists” (e.g., “the Legalist-leaning editors”, p. 103; also the discussion of whether a certain magistrate could be considered “a hard-core Legalist official”, p. 1334 and p. 1355, n.47). Here too, I suspect the silent influence of past scholarship, in this case the work of A. F. P. Hulsewé,Footnote 7 but this paradigm is outdated and inadequate. First, there is the problem that the category of “legalism” (as well as the original Chinese term, fajia 法家) is incoherent and anachronistic,Footnote 8 and thus it is far from clear who these supposed Legalists were and what they believed in (other than that they opposed Confucianism, as Barbieri-Low and Yates frequently assert). Second, the authors do not address the difficulty that the tenets of the philosophers most commonly identified as “Legalist” conflict with the principles of the legal texts from Zhangjiashan in several respects. For example, both the Shangjun shu 商君書 and Han Feizi 韓非子affirm that the ruler's protocols must apply to all members of the population, without regard for their status or reputation,Footnote 9 but in reality, subjects with different formally conferred ranks and privileges were treated by the law very differently too (as even Shangjun shu observed).
And this leads to a related misconception that also seems to be inherited from Hulsewé: that there was no “notion of ‘rights’ of individuals or of groups” (p. 36). The authors themselves present enough evidence to refute this obsolete cliché. Just some examples: special rights of the aged (pp. 85 and 226); the right of women, children, and the elderly to be interrogated at home instead of being arrested (p. 145); the right of ordinary subjects not to be detained for an extended period of time without due documentation (p. 146, as well as other rights relating to interrogation and detainment); the right of defendants not to be intimidated by their interrogators (p. 156); the very important right of holders of certain legally recognised ranks (called jue 爵), when convicted, to surrender such honours in exchange for their release (p. 167—or to be punished more leniently, pp. 198 and 222, or to redeem their punishment with a fine, p. 207); the right of ordinary subjects not to be tried solely on the basis of an anonymous accusation (p. 169); and the frequently cited right of any convicted defendant, or his or her immediate family, to appeal for a review (pp. 180–182).
As I have written elsewhere,Footnote 10 these were not equal rights, as some people enjoyed rights that others did not, nor were they inalienable (or endowed by a Creator), inasmuch as they were overtly bestowed by the state, but they were rights nonetheless, and the law sedulously enumerated and protected them. They correspond to what are called jura in the Western legal tradition. That is simply the Latin word for “rights”, and it is high time that we abandon the unproductive preconception that there was no analogous notion in early China.
A few other minor comments:
P. 13: “The texts had originally been rolled in scrolls (juàn 卷)”. I do not think the term juan can be used like this. Bamboo texts were typically rolled into bulky bundles of strips (called pian 篇) rather than “scrolls”; in fact, I have never seen juan used with reference to texts on any material other than silk or paper.
P. 157. Characterising jie 詰 as “cross-examination” is misleading. When investigators found errors or inconsistencies in someone's testimony, they could follow up with a second (and harsher) round of interrogation. This was called jie. “Cross-examination”, in most modern legal contexts, refers to questioning a witness by one party after the other party has had its opportunity. Without a concept of right to counsel, the very notion of “cross-examination” is inappropriate. Moreover, the authors might also have considered the word's connections with demonology and apotropaic ritual, which was noticed long ago by Donald Harper.Footnote 11
P. 164. The technical term lùn 論, meaning “to sentence [a defendant]”, is read in the fourth tone, not lún, as Barbieri-Low and Yates have it. (In the second tone, lún means “to sort” or “to select”.)
P. 209. The translation Historical Records for the title Shiji 史記 reflects a misunderstanding of shi. We know from such alternative titles as Taishi ji 太史記 that shi referred to Sima Qian's 司馬遷 office.Footnote 12 Hence the more common and correct Records of the Historian. In addition, it seems unfair to call this text's treatment of the early Han “propagandistic” (p. 227), since Sima Qian was by no means a cat's-paw for the regime. On the contrary, as Michael Puett and others have shown, Sima's account of the rise of the Empire is suffused in ambivalence.Footnote 13
P. 237. The surname 長孫 is read Zhangsun, not Changsun.
P. 865, n.19. Barbieri-Low and Yates explain xiaqi 下妻 (which literally means “lower wife”) as “unofficial wives, basically sex slaves who were bought from human traffickers and resided with the other wives and concubines”. But because a lower wife's son could inherit a noble title if there was no son by the principal wife to serve as heir (p. 855), lower wives were probably freewomen.Footnote 14
Despite the disagreements sketched above, there is no doubt that Barbieri-Low and Yates have made a fundamental and lasting contribution to the field. Those interested in purchasing it should be forewarned that book is not cheap (€299/$389), even for its length. (Moreover, with the dollar now zooming toward parity with the euro, it is no longer understandable how Brill can justify a 30% markup in dollars.) My one regret relating to the production is that Volume 2, containing the translations, lacks an index. Researchers who intend to read through the cases sentence by sentence might therefore prefer the e-book version.
