Cases, Stories, and the Judicial Culture of the Ming and Qing Dynasties

Author: Xu Zhongming
Publisher:
Publishing Date: 2006-07-01
Features: The Chinese Empire is an ancient country with a long history and splendid culture, and the Chinese legal system is a unique and distinctive branch among the world's renowned 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 social and economic development and legal lag, as well as the disconnect and divergence between new issues in folk legal practice and the outdated attitudes of official ideology, are evident paradoxes and dilemmas. When explaining the development and transformation of 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 changing times, traditional Chinese thought and academia indeed underwent a transformation that followed the shifting tides. From the perspective of legal academia, the early 20th century was a transitional and foundational period for the study of traditional Chinese law. The study of law, which was originally closely related to Confucian classics, gradually developed an independent character and became a discipline. Furthermore, if the Shaanxi school legal scholar Xue Yunsheng can be regarded as the last figure of traditional Chinese legal academia, and the other leading representative of the Shaanxi school, Shen Jiaben, belongs to the transitional figure between traditional law and modern jurisprudence, then following this academic lineage, we can say that the modern enlightenment thinker and scholar Liang Qichao, who was previously overlooked by legal historians, is undoubtedly the pioneer who used Western legal knowledge and theories to construct the history of traditional Chinese legal thought and legal institutions. 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 a 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" and with modern paradigm characteristics. 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—interpretations of criminal law, law, and statutes, natural law and positive law, rule of law and ritual governance, public law and private law, civil law, criminal law, administrative law, and so on, without exception. They are very consistent with Yang Honglie and the current Chinese legal thought history and legal institutional history we see, while being entirely different from the research approaches of Xue Yunsheng and Shen Jiaben. This book is a work discussing the legal systems and legal cultures of the Ming and Qing dynasties. It can well reveal the unique essence of Ming and Qing judicial systems and accurately depict the historical mirror of Ming and Qing justice in terms of historical materials and theory, as well as macro and micro perspectives. The preface to this book, "Possible Prospects for the Study of Chinese Legal History," aims to reflect on the issues and research methods of Chinese legal history studies over the past century. In terms of this paper's research methodology, the author borrows the narrative strategy of new cultural history. In "Crime and Punishment: A Legal Cultural Study of Bao Gong Stories," through analyzing the application of law in Bao Gong stories, the author finds that the judgments of many cases in these stories are quite consistent with the provisions of the Ming and Qing dynasties' laws and regulations.