Case. Stories and the Judicial Culture of the Ming and Qing Dynasties

Author: Xu Zhongming
Publisher:
Publish Date: 2006-07-01
Features: The Chinese Empire is an ancient country with a long history and splendid culture in human history, and the Chinese legal system is also a unique and distinctive branch among the world's famous legal systems. However, since modern times, with the "invasion" of Western dominant culture, the traditional Chinese legal culture, which was formed through thousands of years of social practice and intellectual pursuit, finally faced crises and disintegration. Upon deeper examination of the reasons for this "disintegration," we can find that it was not solely due to the "invasion" of Western dominant culture but was also closely related to the various ailments accumulated during the imperial era of China. For example, the tension and contradiction between economic and social development and legal lag, as well as the disconnect and divergence between new issues in folk legal practice and the outdated attitudes of official ideology, are all obvious paradoxes and dilemmas. When explaining the development and changes in traditional Chinese Confucian studies, the Qing scholar Pi Xirui once pointed out: "Academics follow the shifting tides of the times, but they do not always do so." Since modern times, with the shifting of the times, traditional Chinese thought and academia indeed underwent changes that followed the shifting tides. From the perspective of legal academia, the early 20th century was a transformative and foundational period for the study of traditional Chinese law. The once closely related discipline of legal studies with Confucian classics gradually acquired an independent character and became a distinct field. Furthermore, if Xue Yunsheng, a leading figure in the Shaanxi school of legal studies, can be regarded as the last guardian of traditional Chinese legal academia, and Shen Jiaben, another prominent representative of the Shaanxi school, belongs to the transitional figure between traditional legal studies and modern jurisprudence, then following this academic lineage, we can say that Liang Qichao, the modern enlightenment thinker and scholar, who was previously overlooked by legal historians, undoubtedly pioneered the construction of the history of traditional Chinese legal thought and legal institutions using Western legal knowledge and theories. Now, it appears more sufficient to regard Liang Qichao as the pioneer of modern Chinese legal history research compared to the past view of Shen Jiaben and Yang Honglie as pioneers. Moreover, compared to Liang Qichao, Shen Jiaben is more traditional, while Yang Honglie is a younger figure. On the other hand, if we take historical thought and methodology as the criterion, we can also find that Liang Qichao not only fiercely criticized the shortcomings of traditional Chinese historical compilation but also actively absorbed the strengths of Western historical compilation, thereby advocating for a revolution in historiography. For example, the article "New Historiography" published in 1902 symbolizes Liang Qichao's critique of traditional historiography and advocacy for historiographical revolution. Based on this academic context, we can infer that the two articles written by Liang Qichao in 1904, "On the Development of Chinese Legal Theory" and "On the Evolution and Pros and Cons of Written Chinese Law," were writing practices of modern Chinese legal history under the guidance of "new historiography" thought, characterized by modern paradigms. In my opinion, the legal knowledge and narrative framework of these two papers are largely influenced by Western or Japanese scholars, and they are everywhere compared with the West, such as legal concepts—explanations of criminal law, law, and regulations, natural law and positive law, rule of law and rule of ritual, public law and private law, civil law, criminal law, administrative law, etc., and so on, which align closely with Yang Honglie and the modern history of Chinese legal thought and legal institutions we see today, while being entirely different from the research approaches of Xue Yunsheng and Shen Jiaben. This book includes two sections: Judicial Archives and Literary Stories and Folk Litigation and Official Adjudication. The content includes:
- Fiction and Reality: Rhetorical Strategies in Ming and Qing Judicial Archives
- Turning Small Disputes into Big Ones and Vice Versa: Interpreting a Qing Dynasty Court Record of Civil Mediation
- "Manufacturing" Innocent Victims: A Sociological Explanation of the Case of "Wrongful Execution of Cui Ning"