What is Chinese law? What is legal in Chinese law, and what is Chinese? Should these two aspects be placed in opposition as the expression of “Western modernity” and “Chinese tradition and culture” respectively, so that the former can progress only to the detriment of the latter? Such basic questions, which have consistently confronted historians of Chinese legal modernization, find new answers in the three books under review.
With Trial of Modernity, Xu Xiaoqun offers the finest book available on the first stage of Chinese legal modernization. The book starts with conceptual and methodological questions, such as the meaning of “modernity” and its application to the judicial field. The critical apparatus is a model of its kind, with a full Chinese glossary, an index and an abundant bibliography. Particularly impressive is the display of the “Archival sources” and “Primary printed sources,” including national (Nanjing No. 2 archives), provincial (mainly Jiangsu) and local archives, as well as the main newspapers of the time. The “secondary sources” section offers an updated selection of Chinese and English works, with a few Japanese and French studies. This massive documentation rarely, if ever, obstructs the reading, thanks to the careful organization of the book, which has frequent illuminating headings and sub-headings, and more than 20 maps and tables. Xu manages to give a pleasantly readable account of a difficult and possibly austere topic. My only reservation is his use of English translations for around 50 institutions under an abbreviated form. Although these abbreviations are duly listed in the first page, the most careful reader has soon forgotten that CGO means County Government office, while CJO means County Judicial Office, and must frequently interrupt reading to consult the list.
The book's skilful organization combines chronological, thematic and geographical approaches to give complementary views on the “legal reform” movement. The first part: “Envisioning reform from the center” provides a general and coherent framework. The following parts are like gradual snapshots on local realities: “Provincial setting and financial constraints”; “The county judicial process”; “Between formalization and informal practices.” The reader thus progresses from official blueprints and projects towards the uncertainties of field application, to end up on the borders of the legal system, with informal practices such as “quick justice” against bandits. Particularly noteworthy is the analysis of the financial shortage that impeded reform at the provincial and county level, thus forcing the reduction of the four-level court and three-trial system to a three-level court and two-trial system. This led to a restoration of the county magistrates in their traditional judicial functions, with their former discretionary powers over “local cases,” in contravention of the separation of administrative and judicial powers. How local magistrates dealt with the contradicting demands of their judicial hierarchy and of the local elites is finely analysed, with new insights into litigation rates in civil and penal law backed by abundant statistics.
Excellent as it is, the book might have gained in historical profundity had more attention been paid to the influence of the Chinese legal tradition over modern reforms. This is a point upon which our opinions diverge, as Xu clearly states: “Jerome Bourgon has argued that the move to abolish cruel punishments was not entirely Western-inspired, but had been pushed by Chinese reformers for a long time. He is right on this particular issue, but the judicial reform as a whole, beyond the abolition of the three cruel punishments, was largely informed by western models” (p. 339, n. 26). “Largely,” perhaps, but not exclusively: the judicial reform was covertly influenced by Chinese legal concepts that remained a common reference and a professional shibboleth for the leading reformers until the 1930s. For instance, Xu duly highlights how Supreme courts presidents Dong Kang and Xu Shiying laid the foundation of modern jurisprudence in the early Republic. However, Dong was not “trained in law in Japan” (p. 57), but was initiated to Chinese law in the old Board of Punishment by Shen Jiaben, who later sent him to Japan to enquire about the prison system. The even more influential Xu Shiying boasted in his memoirs published in 1961 that he never passed any Western law degree, but relied throughout his prestigious judicial career on the training he had acquired in the Board of Punishment, by hand copying Xue Yunsheng's Duli cunyi! No wonder these two leading figures were able to conciliate old and new laws in their jurisprudential decisions. This shows that the influence of Imperial law on the course of the “largely” Westernized legal reforms should not be overlooked. Despite this slight shortcoming, Trial of Modernity will long remain the indispensable work for understanding the intricate creation of China's modern legal system.
The second book under review provides only dubious answers to the questions of “Chinese” tradition and “Western” modernity in Chinese law. Criminal Justice in China is advertised as the first attempt to bridge Imperial, Republican and Communist penal law in the same historical narrative, a hard challenge requiring a strong command of Japanese, Chinese and various European languages. A first disappointment is the complete absence of Chinese characters, the scarcity of legal terms in pinyin in the main text and the index, and even less felicitous, the lack of a bibliography, which is hardly forgivable for a publisher of this reputation. Japanese scholarship, the leading in the field, is simply absent, as are Chinese legal historians with the happy exception of Yang Honglie.
The book is divided into four parts, which follow a roughly chronological order: “The right degree of pain: Imperial China”; “The prison regime: Republican China”; “Trials of terror: war and revolution” (which deals with political repression under the Kuomintang and Communist regimes); “Reform through labor: the Communist state.” It is immediately clear that the content of the book does not live up to its title. Twenty centuries of Chinese law are dealt with in 50 pages, as a paradoxical golden age when the “right degree of pain” was the rule, while the modern period is characterized in headings by words such as “prison,” “terror,” and “reform through labor.” As their titles suggest, the last three parts exclusively deal with repression, prison, discipline and deportation. Here we have a book on “criminal justice” without a single trial (even in part three, “terror” completely obliterates “trials”), without a single legal case, and with only scanty comments on legislation, apart from prison regulations. Various forms of imprisonments are studied in an impressionistic way, mainly through convicts' testimonies, and without any statistics or tables to provide objective reference. The focus on political repression by the Kuomintang and Communist states in the last two parts leads the reader to wonder whether criminal justice and criminal convicts still existed in the common understanding of the terms.
The major shortfall is in the first two sections, where the bridge that the author is supposedly building between old and new law has its foundation stone. Mühlhahn joins a long cohort of authors who have written on Chinese Imperial law without reading legal authors of that period. Xue Yunsheng's Duli cunyi, which has become the common handbook of all students in Chinese law, is never quoted, although it provides the link between the old and new law that the book requires. Shen Jiaben, the leading figure of the xinzheng legal reform under the late Qing and the main historian of the Chinese legal tradition, is only present through one text on prison reform, a subsidiary topic on which Shen added little to his Japanese advisors' teaching. The aforementioned division, which attributes the legal reform and the “prison regime” to the Republican period, leads to an obliteration of late-Qing reform. This crucial period for the modernization of criminal law and the reappraisal of the Chinese legal tradition is dealt with in two pages (pp. 61–62).
On Imperial law, the author writes: “Over a period of more than a thousand years, the definitions of the severest crimes and the penalties attached to them did not undergo any dramatic change, and this continuity speaks of a literal legal conservatism” (p. 45). This statement comes after two decades of American scholarship devoted to Chinese legal progresses, such as Matthew Sommer's book on the evolving definition of sex crimes from the Tang to the Qing dynasties, or Melissa Macauley's volume on the changing laws against pettifoggers, to say nothing of the rich Japanese and Chinese scholarship published on this topic. The exclusive reliance on English translations, such as William Jones's Great Qing Code, leads to basic errors. A significant example occurs with regard to article 25 of the Qing code headed “Criminal's surrender” (fanzui zishou, more literally “Criminal's self hand-over”) which Jones mistranslates as “The perpetrator of an offence who confesses” (p. 56). Using this translation, Mühlhahn misinterprets this “confession” as a sign of repentance and infers that “offenders who were truly repentant were accorded complete and partial exemption from punishment” (p. 50). In fact, article 25 provided for a reduction of sentence as soon as a criminal surrendered, even in cases when he was actually “surrendered” against his own will by his parents. There is no mention of “confession,” and, on a broader scope, the Chinese conception of “confession” was purely factual; the convict was just required to “spit the truth.” Misled by Jones's mistranslation, Mühlhahn invents a judicial reward for “repentance.” This in turn prevents him from understanding the genuine revolution introduced with modern law and “the prison regime,” whose main goals was the reform of the prisoner.
Other errors occur, such as the assumption that law was applied according to “status categories” (p. 46), while a major characteristic of Chinese law was uniformity in application, apart from Manchu or Mongol vestigial privileges. Immunities granted to officials and other dignitaries moderated this uniformity, but they could be, and frequently were, cancelled as soon their beneficiaries were convicted of a crime, and therefore sentenced like commoners. Some affirmations are quite odd: “In China, the public display of bloodshed and violence were thus implemented in a simple manner … the whole arrangement was much plainer than the ‘gloomy festival of punishment’ witnessed in early modern Europe.” What of the bodies cut in pieces in public places in Beijing until 1905, with heads and other bodily remains exposed for days and sometimes weeks on end? Or the bloody photographs of lingchi, which testify to the tremendous change brought about by late-Qing reforms? In conclusion, the book does not rely on sound scholarship, contains errors and prejudices, and should not be recommended for initiating students to Chinese legal history.
Paul Katz's Divine Justice is an important contribution to the study of Chinese law, which shakes common understandings of tradition and modernity. In their focus on legal and judicial technicalities, legal historians commonly lose sight of the fact that justice is not just an institution, but also, more basically, a complex of feelings, values and expectations deeply ingrained in individual consciences. Since such expectations were hardly fulfilled by the judicial system, common people appealed to superior authorities of this world (the emperor) or of the other world (divinities). Communications with divine judges must therefore be regarded as an important dimension of justice, in the past and present.
A historian of Chinese religions, Katz engages in a fruitful discussion with legal historians. He puts forward the concept of “Judicial continuum” as the unifying principle of a system that has three dimensions: the formal adjudication system, bound by state law; the mediation system, managed by local society; the Indictment rituals, addressed to the “divine justice” of the underworld. The book starts with a short history of the Chinese underworld, pointing at two characteristics: an early bureaucratization that replicates real officialdom, and a general acceptance of the Buddhist idea that all sins, or all crimes, will ultimately meet their punishment. This provides the spiritual and doctrinal basis for founding the “judicial continuum” between human and divine justice. Katz documents his research with practical cases in history, as well as in modern societies of China, Taiwan and the Chinese diasporas. The richness of the book is in the vivid description of various judicial rituals, ranging from oaths sealed with the blood of beheaded chicken to the procession of penitents disguised as would-be executed, passing through a great array of rituals allowing living people to indict living persons, or dead ghostly foes, or even incompetent divine officials, and to be indicted by them as well. Katz thus highlights an essential part of the Chinese conception of justice, and his “judicial continuum” might well provide the theoretical framework able to link conceptually the institutional and individual aspects of the justice complex. However, the influence that judicial indictments and other religious practices may have had on the course of official justice is not clearly evidenced and qualified in the book. More research and exchange between religious and legal historians will be needed to ascertain this highly stimulating hypothesis, and to confirm that Katz's book is a landmark in this new field.
