2. The criminalization of illicit consensual sex

As Foucault has pointed out, sexuality is one of the most useful instruments for asserting power relations, and the family is a crucial locus of power. He states that, since the nineteenth century, the deployment of sexuality has gradually become focused on the family (Foucault, Reference Foucault and Hurley1978, pp. 103–14). While Foucault’s discussion is based on the conditions in early modern and modern Europe, it is fair to say that the human body, sexuality, and the family have been intertwined with power since much earlier times. In fact, the ancient rulers already understood the significance of sexuality to manpower, inheritance, and social ethics. They thus took measures to control the human body, although their methods of exercising power were less diverse and subtle compared with power relations in modern society that Foucault describes: they relied primarily on laws and regulations.

Judging from available sources, the Roman state did not make much effort to regulate illicit consensual sex under the republic. As Jane Gardner has noted:

Indeed, until the legislation of Augustus, the paterfamilias had had full responsibility for punishing those under his control for sexual misbehaviour, and the husband was entrusted to oversee his wife’s chastity. Adultery justified not only divorce, but also physical violence against the adulterer, which is commonplace in early Roman literature.

Rome’s transition from a republic to an empire was accompanied by the ruler’s increased interest in regulating individuals’ morality and sexuality through law. The first emperor, Augustus, was celebrated as “Father of his Country” on coins and inscriptions, which marked his role as father of the Roman family and head of the state. Consistently with this image, he showed great interest in regulating family, marriage, and sexual behaviour. Such interest was partly driven by his anxiety towards the lax morals of his contemporary Romans, especially the upper classes. He claimed that the Roman elites did not show enough respect for family values or sexual morals, which was harmful to the maintenance of aristocratic families and the community as a whole (Boatwright et al., Reference Boatwright, Gargola, Lenski and Talbert2012, p. 281). As part of his complex legislation, Augustus’s Lex Julia de Adulteriis coërcendis stipulated penalties for adultery (relations with married women), stuprum (relations with unmarried or widowed women), and incest. Adultery for the first time became a criminal offence, meaning that the right of accusation against adulterers was now open to all male adult citizens, even those with no kinship or marriage relations with the accused. The private matters were made public. While the original Lex Julia was not fully preserved, we can learn about it from the quotations and explanations of the law preserved in the juristic writings compiled during the sixth century CE, mainly Digest 48.5 and Codex of Justinian 9.9, 9.10, and 9.11 (Watson, Reference Watson1985, pp. 318–30; Blume and Frier, Reference Frier and Blume2016, pp. 2295–317). As scholars of ancient legal history know, because Justinian explicitly ordered the compilers to edit the previous legal texts for consistency and conciseness, certain parts of the statutes from the classical period and jurist opinions were likely omitted or altered before they were compiled into the Digest. Another problem is that we only have extracts, which limits our knowledge of the overall picture (Robinson, Reference Robinson1997, pp. 105–15).

A similar transformation occurred in early China. There used to be a time in pre-imperial China when adultery and incest were largely left to individual choices and resolved through personal violence. Zuo zhuan (“The Zuo Tradition”) records more than a dozen adultery cases and several incest cases among the upper classes in the Spring and Autumn Period. For instance, Lord Xiang of Qi had incest with his younger sister, Wen Jiang, before her marriage to Lord Huan of Lu and, after the marriage, when she and her husband visited Qi. After the husband discovered their relationship and scolded Wen Jiang, Lord Xiang murdered him (Zuo zhuan, 18th year of Lord Huan; Yang, Reference Yang1981, pp. 151–3; Sima, Reference Sima1982, 32, p. 1483; Sima, Reference Sima1982, 33, p. 1530). Another example is the beautiful woman Xia Ji, who reportedly had incest or adultery with several men, leading to a chain of events including her son killing Lord Ling of Chen, Lord Zhuang of Chu taking the opportunity to defeat Chen, and the Chu minister Shengong Wuchen eloping with her to Jin (Zuo zhuan, 2nd year of Lord Cheng; Yang, Reference Yang1981, pp. 803–6). None of the adultery or incest cases in Zuo zhuan is tried at a court according to legal procedures.

This relative lack of state concern over the subjects’ sexual behaviour continued to some extent during the Warring States period. One example is that Empress Dowager Xuan of the Qin state, after her husband’s death, had an affair with the Lord of Yiqu and gave birth to two sons, but later murdered the Lord of Yiqu for the interest of her state (Sima, Reference Sima1982, 79, p. 2406). She later had a male favourite named Wei Choufu and considered burying Wei together with her at her death, but Wei asked a friend to dissuade her. Their conversation implies that her love affairs were not a secret (Zhan guo ce, 4.16; He, Jianzhang, Reference He1990, p. 148). According to Zhan guo ce (Strategies of the Warring States), when Empress Dowager Xuan met an envoy from another state, she openly discussed her and her late husband’s positions during sexual intercourse as a metaphor for interstate relations (Zhan guo ce, 27.1; He, Jianzhang, Reference He1990, p. 1009). Regardless of whether this conversation actually happened, it would be hard to even imagine these words coming out of the mouth of a noble lady in any subsequent periods of Chinese history. Of course, it was very likely that laws against adultery and incest appeared in the Warring States period. The legal statutes from Shuihudi largely reflect the Qin legal tradition since Shang Yang’s reform, and the manuscripts found at Baoshan show that the Chu had a developed legal system. But, even if such laws were practised in the Warring States period, they would not have been applied consistently on the scale of an empire until the Qin conquered all the other states.

Unlike the creation of the Twelve Tables in the Roman republic, which resulted from the negotiation between the plebeians and the patricians (Tellegen-Couperus, Reference Tellegen-Couperus1993, pp. 19–20), the emergence of law in China was closely tied to the state’s discipline of peasant conscripts during a time of constant warfare (Yates, Reference Yates and Di Cosmo2009, pp. 23–44). Several passages in Zuo zhuan link the creation of laws to military activities during the late Spring and Autumn Period (Yang, Reference Yang1981, pp. 544–6, 1504, 1366–7). The “Treatise of Punishments” in Han shu discusses punishments from antiquity to the Han Dynasty, but devotes great lengths to warfare and statecraft, demonstrating the close relationship between the origins of Chinese criminal law and warfare. In a passage on the “five punishments,” which is attributed to the ancient sages, most of the tools listed for punishing criminals are also weapons used in warfare—armour and arms, axe and battle axe, knife and saw (Ban, Reference Ban1962, 23, p. 1079; Hulsewé, Reference Hulsewé1985, p. 322). This suggests that warfare was put into the same category as the punishment of criminals. Another paragraph in the treatise tells that Guan Zhong, the famous minister of Qi during the Spring and Autumn Period, made Qi powerful by restructuring the whole society into a military organization (Hulsewé, Reference Hulsewé1985, p. 322).Footnote ³ Consequently, all the men of Qi became soldiers, and the Qi laws were largely identical to military law. Shang Yang led similar reforms in the state of Qin, making military merit the major basis for the ranks of honour.Footnote ⁴ No wonder that two legal cases from the Shuihudi Qin documents concern two Qin soldiers fighting over a head. In the second case, the authorities suspected that the men had murdered one of their fellow Qin soldiers because the head was wearing a Qin hairstyle (Shuihudi qinmu zhujian zhengli xiaozu, 1990, p. 153).

This close relationship between warfare and legal punishments in pre-imperial China corresponded to early Chinese political theories that considered all individuals in the All-Under-Heaven (tian xia), including ethnic minorities and foreign peoples, as subjects of universal sovereignty. Thus, criminals and foreign enemies theoretically belonged to the same category. This is unlike the case in ancient Rome in which violence served as a marker of social divisions— law applied to the insiders of Roman society and warfare applied to the enemies. Chinese law’s origin in warfare may have contributed to the state’s readiness to discipline its subjects’ bodies and to punish the disobedient ones by inflicting harm on their bodies.

The transition from the Warring States era to the Qin empire was accompanied by the state’s increasing attention on matters within the family. As Anne Kinney puts it, “the establishment of a complex legal system that applied to every member of the empire brought about an unprecedented transformation of the husband–wife relationship, changing it from a bond largely determined by customs, rituals, and family elders to one regulated by law” (Kinney, Reference Kinney2022, p. 225). The first emperor of Qin celebrated his success in correcting family and gender orders in his stele inscriptions as one of his greatest achievements. The Kuaiji stele inscription says:

In the Qin and Han legal systems, crimes related to sexual activities were all referred to as jian 奸, but the word itself had much broader meanings than illicit sex.Footnote ⁶ As Tomiya Itaru and Robin Yates have both pointed out, it could be applied to a variety of improper behaviours, such as officials’ deliberate misbehaviour in the course of their duties (Tomiya, Reference Tomiya2014, pp. 40–7; Tomiya, Reference Tomiya and Tomiya2016, pp. 439–70; Yates, Reference Yates, Beck and Vankeerberghen2021, p. 163). As far as illicit sex is concerned, jian could refer to rape (qiang jian 強奸) as well as various kinds of illicit consensual sex (he jian 和奸), including consensual sexual intercourse between unmarried men and women; adultery between men and married women (yu ren qi he jian 與人妻和奸); incest between siblings (tong chan xiang yu jian 同產相與奸/ qin shou xing 禽獸行); a man’s consensual sex with his father’s, grandfather’s, uncle’s, or brother’s wives, concubines, and “riding slaves” (yubi 御婢); illicit consensual sex between an individual of commoner or higher status and an individual of debased status; illicit sex between officials and women; and illicit sex during mourning periods (ju sang jian 居喪奸) (Wang, Reference Wang2007, pp. 105–7; Liu, Reference Liu2019, pp. 230–7). Consensual sexual relations between a male master and his own female slaves (not the slaves of his family members), however, fell into a grey area (Liu, Reference Liu2019, pp. 213–4). The legal statutes and legal case records related to jian are mainly preserved in recently excavated Qin and Han documents from Shuihudi and Zhangjiashan, in addition to the transmitted histories, Shi ji and Han shu.

Why did both ancient empires, despite their geographical distance, begin to tighten the state’s control over family, marriage, and sexuality? On the one hand, it can be explained as the rulers’ efforts to establish their authority and consolidate the imperial order. On the other hand, legislation in the two empires was each driven by specific concerns rooted in their respective cultural traditions and political demands. Although some laws look similar at first sight, the rationales behind them may have been different.

3. Legal statutes regarding adultery and incest

Both Roman and Chinese legislations regarding adultery worked to consolidate social hierarchy, patriarchy, and family property. Under most circumstances, a male of higher status who had consensual sex with a female of lower status was tolerated, but a female of higher status who had consensual sex with a male of lower status would be punished, although the punishments she received may have been less severe than what the male of lower status received.

Some legal statutes found in Zhangjiashan suggest the same level of penalty for the male and the female engaging in illicit consensual intercourse. A statute found in both Zhangjiashan Tombs no. 247 and no. 336 states that, for a man engaging in consensual illicit intercourse with another man’s wife and for the woman, the penalty is to be left intact (as opposed to mutilation) and made a wall-builder or grain-pounder, except when the man is a government official, in which case the man should be sentenced according to the crime of rape. The next statute indicates that the penalty for rape is to be castrated and made a palace bond servant (Zhangjiashan ersiqi hao hanmu zhujian zhengli xiaozu, 2006, p. 34; Jingzhou bowu guan, Reference Peng2022, p. 206; Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, p. 617). However, a legal case report from the Submitted Doubtful Cases (Zou yan shu 奏讞書) of the Zhangjiashan manuscript quotes another statute, stating that the penalty for those having illicit intercourse was being shaved and made a bond servant or bondwoman (Zhangjiashan ersiqi hao hanmu zhujian zhengli xiaozu, 2006, p. 108; Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, pp. 1380–1). Whatever the usual penalty was, both documents suggest that the male and the female engaging in the same illicit consensual intercourse were treated equally. Yet another statute preserved in the Zhangjiashan manuscripts shows that male and female criminals would be treated differently if their legal statuses were different in the first place:

Based on this statute, the male slave would be sentenced to death while the female of higher status would become a female slave instead of receiving the death penalty. While there are no preserved Qin or Han statutes that explicitly concern a male master having sex with a female slave, the “Statutes on Establishment of Heirs” (zhi hou lü 置後律) in the Zhangjiashan manuscript Statutes and Ordinances of the Second Year (Er nian lü ling 二年律令) says: “Should a female slave serve [at the bedside of] her master and have a child, when the master dies, manumit the female slave and make her a freedman” (Zhangjiashan ersiqi hao hanmu zhujian zhengli xiaozu, 2006, p. 61; Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, p. 861).Footnote ⁷ This statute suggests that the sexual relationship between a female “riding slave” (yubi 御婢) and her male owner was legal and that the female slave’s status might be improved as a result.

This asymmetry between the male and the female was consistent with the Qin and Han legal systems’ overall tendency to treat women differently from men. As Mizuma Daisuke has pointed out, although the Qin and Han statutes sometimes prescribed lighter physical punishments for the female than the male who committed the same crimes, which could be partly due to women’s ability to reproduce, a wife beating her husband would be subject to heavier punishments than the husband beating his wife (if the husband claimed that she was a shrew) (Mizuma, Reference Mizuma2007, pp. 111–5 and throughout). Miyake Kiyoshi argues that the different treatments of men and women had their roots in the historical formation of Chinese law: the earliest Chinese law-makers designed the system for male subjects, as exemplified by the punishments of castration and guarding the border, and later expanded legal punishments to females with certain adjustments (Miyake, Reference Miyake2007, pp. 368–93).

Likewise, Roman adultery law also protected male privileges. As Gardner observes, in principle, “a married woman was guilty of adultery if she had sexual relations with any man other than her husband, a man only if the woman was married, and his own marital status was irrelevant.” Moreover, a man could prosecute his wife, but a wife could not prosecute her husband (Gardner, Reference Gardner1986, p. 127). Like the case in early imperial China, a married man had the legitimate choice of having sex with his female slaves, but a woman’s sexual relations with a male of lower status would be considered adultery.

These similarities may be unsurprising given that both societies were patriarchal and hierarchical. However, the Roman and Chinese law-makers’ motivations were not the same. As Gardner argues, certain aspects of the law suggest that Augustus was mainly concerned with protecting the upper classes’ marriages, for “the forfeiture of one-third of their property, loss of the right of receiving inheritances, and ban on marriage to freeborn Romans were penalties whose effect would be felt mainly at the upper levels of society” (Gardner, Reference Gardner1986, p. 130). In other words, this regulation of the body was associated with the upper classes’ access to marriage alliances and economic resources. O. F. Robinson points out that infamy was also a consequence of conviction in the Roman context because “a convicted paramour lost his power both to testate and to receive under a will” (Robinson, Reference Robinson1995, p. 66), which seems more applicable to the upper classes than to the lower classes. By contrast, although the Chinese law also protected legitimate marriage, it placed much emphasis on the two adulterers’ relative positions in the desired social and family hierarchies, showing that one of its main goals was to uphold social order. Almost all the Chinese statutes concerning illicit sex clearly state the social and familial relationships between the involved parties, and the penalties varied by their relative positions.

Other notable differences between the early Roman and Chinese legal statutes lie in the categorization, definition, and penalties for illicit consensual sex. The Chinese word jian was an umbrella term for all kinds of illicit sex, and he jian included illicit consensual sex both with married women and with unmarried women. In Rome, however, the Lex Julia set adultery (relations with married women) apart from stuprum (relations with unmarried or widowed women). Although the law sometimes uses the two terms interchangeably, stuprum took on a more restricted meaning since then (Robinson, Reference Robinson1995, p. 121).Footnote ⁸ This phenomenon reflects Augustus’s emphasis on confining sex within the boundary of legitimate marriage. The legal procedures prescribed in Lex Julia also indicate that the law was mainly intended to regulate the adultery of married women, for it first gives the husband the right to accuse the adulterous woman, which does not easily apply to single women (Digest 48.5.4, 12 (11).6, 15 (14).2).

Another difference is that incest was punished much more severely in China than in Rome. Qin and Han statutes prescribed public execution for incest. As is stated in the “Answers to Questions on Legal Principles and Statutes” (fa lü da wen 法律答問) of the Shuihudi manuscripts, “If those who have the same mother and different fathers commit illicit consensual sex, what is the penalty? Public execution” (Shuihudi qinmu zhujian zhengli xiaozu, 1990, p.134).Footnote ⁹ Similarly, the following statute appears in the “Miscellaneous Statutes” of the Zhangjiashan manuscripts:

Incest was punished less severely in Rome than in early China. Incestum, as a special type of stuprum, came under the operation of the Lex Julia de Adulteriis, but the term incestum did not explicitly distinguish between endogamy and incest between primary kin. The usual penalty for incest, as for stuprum in general, was relegation to an island (Gardner, Reference Gardner1986, pp. 126–7).

A third difference is that having illicit consensual sex during a mourning period was a crime in early imperial China but not in Rome. In the Qin and Han, the crime of “having illicit sex during a mourning period” (ju sang jian) was intertwined with the crime of “being unfilial” (bu xiao 不孝), which deserved public execution. In the trial of a case concerning a widow having illicit sex with her lover during her mourning period for her deceased husband, the judge and the clerk cited a statute: “When the father or mother of the husband dies and is not yet buried, one who engages in illicit intercourse beside the corpse matches lacking filial piety. ‘Lacking filial piety: cast [the criminal] away in the marketplace’” (Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, pp. 1382–3).Footnote ¹⁰

Last but not least, in China, the specific penalties were always determined based on the criminal’s relative position in the familial and social systems compared with that of the person whom he had offended. This was also true for illicit sex cases. A man who had illicit sex with the wife or “riding slave” of his superior would be sentenced more heavily than one who had sex with the wife or female slave of his inferior. As a statute in the Zhangjiashan documents prescribes:

In other words, a man’s sexual relations with another man’s wife or female slave were considered an offence to that man, and therefore the legal punishment varied according to the two men’s relative positions in the normative hierarchies.

By contrast, as far as the surviving parts of the Lex Julia are concerned, the Roman law did not make much effort to treat male adulterers differently on the basis of their kinship relations with the offended husbands. Rather, it emphasized the legal procedures, especially the persons allowed to make accusations and the time windows. According to Lex Julia, the husband ought to divorce his wife as soon as he found the adultery, or he would be liable for lenocinium (pandering) (Digest 48.5.2.2, 2.5, 2.6, 2.7, 12 (11).13, 15 (14)). In the first 60 days (Digest 48.5.4, 12 (11).6, 15 (14).2), only the husband or the woman’s father had the right to accuse her of adultery, but the male adulterer had to be accused and tried first (Digest 48.5.5). If he were found guilty, the woman then could be tried; if not, and the woman had re-married, she could not be tried. When the two months had passed, any person could bring the accusation of adultery within the next four months (Digest 48.5.2.9, 48.5.4.1, 48.5.14 (13).4, 48.5.16 (15).5). This level of detail regarding legal procedures is not found in the corresponding Chinese statutes.

4. Legal practices: adultery and incest cases

As is always the case, there were discrepancies between statutes and legal practices in both early China and Rome. The sentences for specific cases did not strictly correspond to the prescriptions in legal statutes in either society. Specifically, the actual punishments for the Roman upper classes tended to be stricter compared with those in legal statutes. By contrast, the punishments that the Han upper classes received were sometimes lighter than those prescribed in the statutes. When Han male elites were simultaneously accused of illicit sex and other crimes, however, they often received punishments based on the more serious crimes.

In Rome, as Lex Julia left the power of prosecuting adulterers to the father of the woman and partially to the husband, the legal practice largely depended on the father and the husband’s attitudes. Since the statute prescribed that the father could kill the adulterer if the adultery was found at his home but must kill his daughter at the same time (Digest 48.5.24 (23).4), it is reasonable to think that many fathers would choose not to do so. If this was the scenario, the statute would have resulted in the father killing neither his daughter nor the male adulterer. Then, what could have been the real effects of the law? At least the law reaffirmed the father’s authority over his daughter and deterred potential male adulterers from intruding into a household that had a patriarch. Moreover, if the adulterers were found at the father’s house but not executed by the father on the spot, the law would leave them the possibility of changing their behaviour.

While the Princeps had a great deal of freedom in setting the punishment (Cohen, Reference Cohen2008, p. 213), Augustus sentenced his unchaste daughter Julia and her lovers, as well as his daughter’s daughter, to exile or death, although he used his power as paterfamilias without recourse to the Lex Julia. Tacitus commented that Augustus “exceeded the humane penalties sanctioned by our ancestors and his own legislation” (Tac. Ann. 3.24.2f). A reasonable explanation is that Augustus’s main target was the aristocracy and that he tried to deter potential adulterers with severe punishments for his own family members. As Mary T. Boatwright points out, women of the imperial family were held to high moral standards and were thus liable to the charges of non-normative female sexuality (Boatwright, Reference Boatwright2021, p. 81). Besides the cases of Julia the Elder in 2 BCE and Julia the Younger in 8 CE, documented adultery charges in Rome often involved women of the Julio-Claudian family, such as Appuleia Varilla (Tac. Ann. 2.50), Aemilia Lepida (Tac. Ann. 3.22–23), Claudia Pulchra (Tac. Ann. 4.52; cf. Ann. 4.66.1; Cass. Dio 59.19.1), Julia Livilla (Cass. Dio 59.22.6–8), Agrippina the Younger (Cass. Dio 59.22.6–8.), and (Claudia) Octavia (Ann. 11. 26–38; Suet. Claud. 26.2, 29, 36, 39.1), and the crime was sometimes linked with maiestas, or treason.Footnote ¹¹ These cases indicate that the law was applied at least occasionally in the early Roman empire, but we are uncertain of how strictly it was executed in the whole society or during later periods of the Roman empire.Footnote ¹² The judicial procedure also changed over time. As Peter Garnsey and O. F. Robinson have both observed, the quaestiones (public courts), which were responsible for the trial of adultery cases and other cases involving public crimes in the early empire, had become defunct in the Severan age and been superseded by the procedure extra ordinem (Garnsey, Reference Garnsey1967, pp. 56–60; Robinson, Reference Robinson1995, p. 59).

While the early Chinese statutes prescribed the standard penalties for adultery, the actual punishments found in available sources varied significantly. A statute found in both Zhangjiashan Tombs no. 247 and no. 336 states that, for a man engaging in consensual illicit intercourse with another man’s wife and for the woman, the penalty is to be left intact and made a wall-builder or grain-pounder (Zhangjiashan ersiqi hao hanmu zhujian zhengli xiaozu, 2006, p. 34; Jingzhou bowu guan, Reference Peng2022, p. 206). The same statute has been found in the Dunhuang Xuanquan manuscripts, showing that it was circulated across the empire (Hu and Zhang, Reference Hu and Zhang2001, p. 9). Nevertheless, the penalties prescribed in the statutes varied by the man and the woman’s respective legal status, whether they had kinship, and whether they committed illicit intercourse during a mourning period (Gu and Liu, Reference Gu and Liu2009, pp. 78–80). The penalties in legal practice were complicated by even more factors. According to Hu Pingsheng and Zhang Defang’s study of Shi ji and Han shu, the actual penalties for adulterers varied from as light as being bereft of the marquis title to as heavy as public execution (Hu and Zhang, Reference Hu and Zhang2001, p. 10). The reasons may have included the discretion of the judge, special circumstances of the case, the statuses of the adulterers, and the emperor’s intervention. An important factor was whether the adulterers were accused of other crimes at the same time. By summarizing the 46 cases involving illicit consensual sex among the nobles recorded in Shi ji and Han shu, Jia Liying concludes that in only five cases were the criminals punished primarily for their sexual conduct; most of them were punished mainly because of other crimes (Jia, Reference Jia2006, p. 93). This phenomenon suggests that the Chinese laws on illicit sex were often used for additional accusations instead of being stand-alone causes for legal cases. Perhaps the early Chinese state was less interested in regulating all the sexual conduct of its subjects than what it appeared to be in the official rhetoric.

Two cases committed by members of the imperial lineage illustrate the great variety of actual penalties for illicit sexual conduct. The King of Dai, whose name was Nian, had a long-term incestuous relationship with his younger sister, Ze, resulting in her giving birth to a baby. After being investigated by the authorities, Nian was debased to the status of commoner and exiled to Fangling. At the same time, he was granted a domain of 100 households (Ban, Reference Ban1962, 47, pp. 2211–2). The penalty he received was much lighter than what the statute prescribed. In another case, Prince Dan, son of the King of Zhao, was accused of having sex with his own daughter and his elder sister. Dan was first imprisoned and sentenced to the death penalty but was finally released after some time due to the emperor’s amnesty. He was sentenced to the death penalty because he had “committed many crimes” (wei jian shen zhong 為奸甚眾) and Emperor Wu was angry at him (Ban, Reference Ban1962, 53, p. 2421). But a more important context was that Emperor Wu was trying to weaken the power of the regional kings, as evinced by his “Order to Expand Favours” (tui en ling 推恩令)—a decree that encouraged them to divide their territories among all their sons. The two cases demonstrate that a person’s other conducts, his relationship with the emperor, and changes in the court’s policies could all affect the actual punishments that he received.

The local judges’ discretion also contributed to the inconsistencies in the actual penalties during early imperial China. In the Submitted Doubtful Cases from the Zhangjiashan manuscripts, there is a case in which a widow in Du County had illicit sex with a man shortly after her husband’s death and was accused by her mother-in-law. At first, the judge decided that the woman should be sentenced to the same penalty as being unfilial because a woman ought to respect her husband to the same extent as her parents. But then a clerk named Shen argued that the offence against a deceased husband should be lighter than the offence against a living husband, and the judge agreed to lighten the penalty for this woman (Zhangjiashan ersiqi hao hanmu zhujian zhengli xiaozu, 2006, p. 108; Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, pp. 1376–93).Footnote ¹³

In early Chinese legal practice, punishments for the crime of “having illicit sex during a mourning period” varied enormously, especially when members of the imperial lineage were involved and when the accused had committed multiple crimes. Shi ji and Han shu record six cases in which members of the upper class conducted illicit sex during their mourning periods for their father, mother, or the wife of their father’s uncle. One of them deserved the death penalty according to the authorities’ suggestion but then was only deprived of a feudal county; one was deprived of kingship and exiled to Fangling; two committed suicide; one received no penalty for his sexual behaviour but later committed suicide due to treason; and the last was the deposed emperor, the King of Changyi, who allegedly had committed other deviant behaviours according to the powerful regent Huo Guang (Jia, Reference Jia2006, p. 97). What was really at stake, it seems, was not their illicit sexual behaviours per se, but their positions in political struggles and their relationships with those in power at the imperial court.

The Roman and Chinese rulers’ different attitudes toward the upper classes reflected their respective concerns in political practice. Augustus and subsequent Roman emperors, who insisted on prosecuting adulterers, were concerned with the morality of the upper classes and their own public images as moral reformers. The Chinese emperors, however, were less obsessed with executing specific statutes but more concerned with the overall conduct and power of the accused. If a member of the imperial lineage had a good relationship with the emperor and did not pose a threat to the throne, he would likely receive a lighter penalty than was stipulated in the law. A possible explanation for this difference is that the Roman emperors still needed public support to secure their positions due to the legacies of the Roman republic, whereas the Chinese emperors were anxious about the competition from other male members of the imperial lineage who were also eligible for the throne.

5. Adultery law and state power

As the previous sections have demonstrated, while the adultery laws in the two early empires appeared to have centred on regulating sexual intercourse, the motivations and the effects of these legislations were more about power. The criminalization of illicit consensual sex reflected the power dynamics within the state and the family, facilitated power struggles between the ruler and the aristocracy, and recognized male domination. In the sense that these laws helped the imperial state to control individuals’ bodies and manage populations, they played crucial political roles in the early empires.

The Lex Julia was passed by Augustus as part of his campaign for the moral reform and eugenics of the Senate and the equites. The sexual morality of the upper classes had been a concerning issue, judging from Tacitus’s writings and other roughly contemporary literary sources that highlighted the promiscuity of the Roman upper class. Richlin comments that Augustus “was trying to legislate shame into the upper orders—an endeavor doomed to failure … as if, by making this moral judgment true in law, Augustus could instill it in the conscience of the nobility” (Richlin, Reference Richlin1981, p. 45). While it may seem naïve to attempt to transform morality through legislation, if Augustus’s adultery and marriage laws were understood as ideological expressions, they probably did reinforce Augustus’s public image as the father of his people, the first citizen, and a just ruler. As L. de Ligt points out in an analysis of the sumptuary laws of the late republic, legislations specifically aimed at restricting the privileged classes, even if they were rarely enforced, can be understood in terms of their symbolic value (De Ligt, Reference De Ligt, Jongman and Kleijwegt2002, pp. 1–45). Moreover, such legislations could potentially deter overt sexual misbehaviour. Even though the law did not put an end to adultery, knowing the legal consequences could have led to some individuals’ self-discipline.

Besides the moral concern, other social and political considerations might have contributed to Augustus’s legislation on sexuality and marriage. Susan Treggiari argues that “the need to encourage nuptiality and reproductivity in order to supply Rome with soldiers and administrators appears to have been most prominent in the minds of Augustus and his advisers” and that “the laws would also serve to encourage the upper classes to breed sons to succeed them in their dignities and property” (Treggiari, Reference Treggiari1996, p. 889). Given the frequency of wars during Augustus’s reign, the number of soldiers was likely an important concern for him. However, it remains unclear whether the need for encouraging reproductivity and increasing the number of soldiers was the primary motive, given that adultery does not necessarily reduce reproductivity. Moreover, although there were constant wars during the age of Augustus and therefore the need for a supply of soldiers, the republican period had always been at war, yet there had been no such legislation before Augustus. Instead of simply encouraging reproduction, the emphasis of Augustus’s law was likely to ensure that the upper classes would produce legitimate children, which guaranteed not only the supply of soldiers but also legitimate succession within the elite families. This goal corresponds to the widely recognized purpose of marriage in Roman society: the production of legitimate children who would inherit their fathers’ names and properties.

Subsequent Roman emperors’ attention to marriage and adultery law further reflected their diverse concerns. Tiberius encouraged the reversion to family jurisdiction over unchaste married women (Suet. Tib. 35.1), and he intervened in the case of Appuleia Varrila to lessen the penalty (Tac. Ann. 2.50). He also took measures to check women who attempted to evade legal punishments by registering as prostitutes (Suet. Tib. 35.2; Tac. Ann. 11.8.5). Domitian revived Lex Julia in his attempt to restore domestic and civic virtues, which suggests that he had been unsatisfied with the insufficient number of prosecutions (Treggiari, Reference Treggiari1996, p. 893). Diocletian’s legislation prohibited incestuous marriages, which, as Judith Evans Grubbs points out, “condemns close-kin marriage as both un-Roman and offensive to the gods of the Romans, uniting concerns with private morals, public safety, and religious piety” (Grubbs, Reference Grubbs, Ando and Rüpke2015, p. 115). Thus, the regulation of illicit sex continued to be seen as a public issue that affected the empire’s stability and ideological legitimacy.

Likewise, the state’s surveillance of the population was of political significance in early imperial China. The Qin and Han states managed the population through a household registration system, and they heavily restricted population movement for administrative efficiency and security purposes. Not only did absconders deserve legal punishments, but those who married absconders, whether intentionally or not, also violated the law. Two cases in the Zhangjiashan manuscript Submitted Doubtful Cases illustrate the state’s tight control over both population movement and individuals’ sexuality and marriage. The first case is about two eloping lovers from Qi who lived during the founding stage of the Han Dynasty, when the government restricted the movement of people between the territories of the regional lords and the territory managed directly by the imperial court as well as cross-border marriages. A male judiciary scribe named Lan, whose hometown was Linzi (former capital of the Warring States polity Qi), had been charged with relocating a woman named Nan, a member of the former ruling house of Qi, to the Han capital Chang’an.Footnote ¹⁴ Having developed a relationship with her along the way, Lan hid her in a carriage and attempted to leave the Capital Area heading east. After the two lovers were arrested, the legal case revolved around the issue of exactly what crimes they should be sentenced for. As an expert in legal matters, Lan was willing to admit to the lesser crimes of “engaging in illicit intercourse” and “hiding an absconder,” but not the capital crime of “coming from [the territories of] the Regional Lords to lure.” This case was finally reported to Emperor Gaozu, who selected the more lenient sentence for Lan (Zhangjiashan ersiqi hao hanmu zhujian zhengli xiaozu, 2006, p. 93; Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, pp. 1195–206).Footnote ¹⁵

The second case concerns a mutilated man unwittingly marrying a female absconder. A man named Jie, who had been mutilated and made a convict labourer because of his previous crime, obtained a wife named Fu from a man named Ming. In fact, Fu was an absconder who had run away from her tax obligations and probably from another marriage. Fu had taken advantage of a loophole in an imperial edict to conceal her history of abscondence, registered herself at Ming’s place, and became his servant. This case was forwarded to the Commandant of the Court in the capital because the county and commandery officials held different opinions over whether Jie should receive a lighter punishment than someone who intentionally committed the crime of marrying an absconder. Yet the Commandant declared that the statutes were quite clear and that Jie should be punished without any mercy, sentencing Jie to have his left foot amputated and once again be made a convict labourer (Zhangjiashan ersiqi hao hanmu zhujian zhengli xiaozu, 2006, p. 94; Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, pp. 1207–15).Footnote ¹⁶ Together, the two cases demonstrate that the Han court attempted to minimize both unauthorized population movement and unauthorized marriage or sexual intercourse by keeping all individuals registered and by enforcing relevant statutes.

The legislation on illicit sex in early imperial China was also part of a larger ruling strategy designed to reinforce ideological unity across the empire. The increasing prominence of moral discourses and the state’s efforts to establish social hierarchies contributed to a legal system that upheld gender and generational hierarchies within the family. This principle is reflected in the statutes that having sex during one’s mourning periods for relatives would result in legal punishments; that a man who had sex with a female slave of his father or uncle should be sentenced to penal servitude; and that those committing incest deserve the death penalty. The Han ruling class, claiming that the Qin dynasty’s rapid collapse was due to the Qin rulers’ continued reliance on military force after the empire’s unification, sought to solidify the Han regime through less visible forms of control (Sima, Reference Sima1982, 6, pp. 282–4). Part of their ideological project was to emphasize family ethics through edicts and the legal system.

Whether the Confucianization of Chinese law started in the Han has been a contested issue. Ch’ü T’ung-tsu argues that some Han scholars who followed Confucius had started infusing classical rituals into legal practices.Footnote ¹⁷ However, excavated legal documents from Qin and Han indicate that many aspects of early Chinese law were far from “Confucian” compared with those of the Tang and the Qing, not to mention that Confucianism itself changed considerably from the pre-imperial period to the Eastern Han, which adds another layer of complexity to the question. Based on existing evidence, Tomiya Itaru and Hsing I-tien have both pointed out that the Confucian five-degree mourning system did not become the legal standard of kinship until the late Eastern Han (Hsing, Reference Hsing and Liu2008, pp. 135–47; Tomiya, Reference Tomiya1998, p. 268). Nor was women’s legal status in early imperial China consistent with the typical Confucian ideas. As Robin Yates has demonstrated, women in the Han were legally allowed to be household heads, own and inherit property, and enter a plea in court in their own names, which would become uncommon in later times of Chinese history (Yates, Reference Yates, Beck and Vankeerberghen2021, p. 176). Michael Nylan and Anne Kinney have also found that women in early imperial China enjoyed much more autonomy than women in late imperial China, largely due to the Qin state’s efforts to reduce household size (Nylan, Reference Nylan2005–06; Richlin, Reference Richlin1981, pp. 34–6; Kinney, Reference Kinney2022, p. 244). On the other hand, the legal documents analyzed in this article indicate that the hierarchies between father and son, emperor and minister, husband and wife, and higher classes and lower classes started to be integrated into Chinese statutes in the Qin and Han (Zeng, Reference Zeng2021, pp. 98–101; Goldin, Reference Goldin2012, pp. 16–30). Yoon Jaesuk has also observed that the Zhangjiashan legal documents prescribe heavier punishments for offences against family members than the same offences against people outside of the family, and that the closer the kinship between the two parties, the heavier the punishments were (Yoon, Reference Yoon2004, pp. 62–3). This legal protection of hierarchical relations was generally consistent with Confucian values, but these ideas regarding family hierarchies were not exclusively Confucian; rather, they seemed to have been shared across different intellectual traditions including Confucianism, “legalism,” and others. An incest case that happened during Emperor Wu’s reign indicates that the Han authorities’ concern over family ethics was connected to their views of the cosmological order and civilization as well. According to Shi ji, the King of Yan, whose name was Dingguo, had sexual relations with his father’s concubine, took his younger brother’s wife as a concubine, and had sexual intercourse with his own three children. Emperor Wu ordered his officials to discuss this case. These officials concluded: “Dingguo conducted the behaviour of the beast, disrupted human ethics, and is against Heaven. He should be put to death” (Sima, Reference Sima1982, 51, p. 1997).Footnote ¹⁸ Their comment echoes a paragraph in the classic Li ji (The Classic of Rites):

In the classicist view, humans are distinguished from beasts in that they follow rituals to maintain social and familial order. Thus, the severe penalty for illicit sex during mourning periods coincided with the spirit of classical rituals, in which the mourning system occupied a central position. Although the actual rituals practised in the Han were not as rigid as those prescribed in the classical texts, with the increasing celebration of filial piety among Han rulers and elites, having illicit sexual intercourse during the mourning periods for one’s parents came to be viewed as unfilial. The statutes against illicit sex during mourning periods thus also served as an ideological expression of the imperial state. In Paul Goldin’s words, the incorporation of family hierarchy into early Chinese law indicated “a revived moralistic consciousness in government” (Goldin, Reference Goldin2012, p. 30).

A common function of the Roman and Han adultery laws was to justify the state’s takeover of the power of killing from private hands. The states of both empires restricted the private killing of adulterers within the household. Under the Lex Julia, the father of the adulterous woman had the right of killing her and her adulterer at the same time if the adultery was found in his home (Digest 48.5.24 (23).4), whereas the husband, even if discovering the adultery in his home, did not have the right of killing his wife but only the limited right of killing certain types of adulterers, such as a pimp, a singer or a dancer, one convicted of a criminal offence and not restored to full civil rights, or a freedman of his immediate family (Digest 48.5.25 (24)). By transferring the right of killing the adulterers partly to the father of the woman, the law shows the imperial power’s endeavour to restrict the authority of the husband as the rulers worked to extend state power into private realms. As O. F. Robinson puts it, although Augustus might have had other considerations, his legislation of making crimina publica adultery and stuprum was “more likely because he wished jurisdiction in all matters to go through the courts, which, ultimately, he controlled” (Robinson, Reference Robinson1995, p. 58). Likewise, in early imperial China, the adulterers could be killed by the woman’s husband only when they were caught during the act. A case in the Models for Sealing and Investigating (feng zhen shi) from Shuihudi mentions that the accuser had arrested the two adulterers on the spot (Shuihudi qinmu zhujian zhengli xiaozu, 1990, p. 163). A case in the Submitted Doubtful Cases (Zou yan shu) from Zhangjiashan was debated in court because the adulterers were not caught during the act (Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, pp. 1380–5). In the report, the judges cite a legal statute that “[o]ne who attempts to arrest those engaged in illicit intercourse must investigate it and have caught them in the act” (Barbieri-Low and Yates, Reference Barbieri-Low and Yates2015, p. 1381). Two cases in the Yuelu documents also show that, under the Qin law, it was important to catch those engaging in illicit sex during the act, otherwise the authorities would not prosecute them (Zhu and Chen, Reference Zhu and Chen2013, pp. 196–213; Yates, Reference Yates, Beck and Vankeerberghen2021, p. 167). This restriction prevented domestic violence under the excuse of adultery and strengthened the state’s monopoly of legitimate force—a key definitive element of state power in many social theories.