Qin Han lüling faxi yanjiu xubian 秦漢律令法系研究續編 [Research on the Legal Systems of Qin and Han Dynasties Part II]. By Zhang Zhongwei 張忠煒. Shanghai: Zhongxi shuju 2021. Pp. 230. RMB 78 paperback.
Reviewed by Zheng Yifan (UC Berkeley)
Since the discovery of the Shuihudi 睡虎地 Qin 秦 bamboo slips and the Zhangjiashan 張家山 Han 漢 bamboo slips, research into the legal systems of the Qin and Han dynasties, based on these excavated legal documents, has emerged as a vital and dynamic sub-field in the history of ancient Chinese law. Scholars from China and abroad have delved into the Qin and Han legal systems from multiple perspectives, significantly enhancing our understanding of early Chinese imperial law. This book, authored by Zhang Zhongwei, Professor of History at Renmin University of China, stands as a notable contribution to the examination of early Chinese law and legal practices.
The book is divided into three parts, accompanied by a preface that outlines the research methodology and summarizes the content of each chapter. Most of the chapters were originally published as journal articles, and this book compiles them based on their thematic relevance. Part I consists of three chapters dedicated to examining the nature of excavated legal texts. This section reflects the author’s methodological objective to venture beyond the conventional dichotomy of belief and skepticism towards historical records. Part II endeavors to integrate excavated documents with transmitted texts, aiming to reconstruct the legal system of the Han Dynasty while offering a reinterpretation of the development of the legal system from the Qin to the Jin 晉 dynasties. Part III, serving as an appendix, includes three research notes that delve into the theme of law and legal study.
Chapter One examines the nature of legal documents unearthed from tombs and interprets the archaeological practice of using legal documents as burial items. Upon exploring the function of burial items as cultural symbolic artifacts and reflecting on the placement of legal documents within burial sites, the author validates Tomiya Itaru’s 冨谷至 advocacy of the “theory of guarding tombs,” unveiling the potential religious significance of legal documents as burial artifacts. While Chapter Two delves into the “reality and falsity” of legal documents from the perspective of the formation process of judicial records, Chapter Three focuses on the specific “rhetoric” in the legal context. Rather than solely assessing the truthfulness of legal records, the author emphasizes the importance of the roles of judicial clerks and the social context in which legal texts are produced across various levels of institutional practices. Low-ranking officials initiating cases or higher authorities making decisions could impact the authenticity of the legal records either inadvertently or deliberately. Besides corruption and legal distortion, pressure to solve more cases and desires to accumulate administrative merits might drive officials to resort to torture or other means to “restore the truth.” Moreover, the common use of “rhetoric” in legal documents to support officials’ judgments often results in a departure from the “truth.” Continuing on this path, Chapter Three scrutinizes the characteristics of the “Doubtful Legal Cases Submitted for Revision” (Zouyan shu 奏讞書) from Zhangjiashan. Through the analysis of the so-called “Cases from the Spring and Autumn period,” the author demonstrates how legal texts were generated and utilized in an interactive environment involving writers, readers, officials, teachers, and students. While these legal texts contain pseudonymous cases and therefore should not be taken as authentic records from the claimed periods, they served as invaluable educational and referential materials for those studying law during the Han period, sharing similar rhetorical devices with the “literature texts” of that era.
Among the most exciting contributions in this book is Chapter Four, where the author reconstructs the Han dynasty statutes system. During the Han dynasty, a unified legal code was not yet established, and the legal system consisted of individual statutes (lü 律) and ordinances (ling 令). Based on the transcription of a wooden tablet inscribed with statute titles recently unearthed from an ancient well at the Tuzishan 兔子山 site in Yiyang 益陽, the author hypothesizes that statutes from the Qin and Han periods can be broadly classified into two major categories: penal law and administrative law. This categorization is evidenced by the division between “punitive statutes” (yulü 獄律) and “ancillary statutes” (panglü 旁律) on the Tuzishan wooden tablet. The former encompasses not just prison laws but all laws pertaining to criminal behaviors, while the latter covers administrative, institutional, and ritual-related matters. The correlation between the Qin statute titles and the Han legal system prompts the author to re-examine the formation of the “Nine Chapters of Statutes” (Jiuzhang lü 九章律), traditionally attributed to Xiao He 蕭何 (?—193 BCE). Zhang argues that most sections of the Nine Chapters predated the Han dynasty, with Xiao He primarily involved in selecting and finalizing these sections. Zhang continues to explore this matter in Chapter Five, where he speculates that aside from Xiao He, individuals like Zhang Cang 張蒼 (252—152 BCE), Shusun Tong 叔孫通, and Han Xin 韓信 (?—196 BCE) might have also played roles in editing Han law, contributing to the formation of administrative, ritual, and military-related laws. This chapter also provides an analysis of the newly discovered Han law titles that are yet to be fully elucidated, speculating on the possible contents based on their historical contexts and suggesting potential directions for future research.
Chapter Six analyzes the scale of Han laws by examining different textual units such as pian 篇, zhang 章, and juan 卷. The author convincingly argues that the term zhang could refer to both a smaller textual unit equivalent to a “section” and a larger one representing an entire legal statute text, which could be interchangeable with pian depending on the context. The term juan originally referred to the physical writing medium, be it paper, silk scroll, or a bundle of bound bamboo slips, capable of containing one or multiple pian depending on the length of the text. Building on this foundation, the author further suggests that the multitude of statutes mentioned in the “Treatise on Punishments and Laws” (Xingfa zhi 刑法志) of the History of Han (Hanshu 漢書) during Emperor Wu’s 武 reign (141—87 BCE), with a total of 359 zhang of statutes, should be interpreted as pian rather than individual articles. This argument is somewhat tenuous and might be influenced by the general impression that the number of legal provisions during Emperor Wu’s reign should significantly exceed the 324 articles found in the Zhangjiashan statutes. Even if this perception reflects historical accuracy, a careful examination of the context within the “Treatise on Punishments and Laws” suggests that the number 359 could signify the new articles introduced during Emperor Wu’s reign rather than the total number of articles from that period.
In summary, this book makes a significant contribution to the study of early Chinese law and legal history. The author’s meticulous examination of primary sources and thorough research in secondary sources position this work as an essential reading for scholars interested in early Chinese imperial legal history. General readers will appreciate the author’s methodological clarity, while experts will find insightful arguments for future exploration. Of particular note is the author’s attention to the archaeological context of buried bamboo slips and the societal settings that produced these legal texts. By refraining from using looted manuscripts and providing rationale for this decision, the author demonstrates prudence. While the author’s work is admirable, the book will benefit from incorporating scholarship on the existence of civil law in early China, such as Zhang Zhaoyang’s research, to enhance the discussion on the division between punitive statutes and administrative statutes.
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