Can legal history, together with the history of judicial institutions, point towards a specific characteristic that would singularize Western Europe among other cultures of Eurasia? A specific feature that would highlight the difference between Western Europe and China?
For the last two decades, I have attempted to develop the thesis that the idea of “god’s judgment” has played a key role in the crystallization of European judicial cultures. Among monotheist systems, only Latin Christianity believed it could make use of divine justice for the sake of human judicial proceedings. During the Early Middle Ages, the idea of an “objective” god’s judgment was exalted, because the Christianization of ordeals laid down the belief in the possibility to materialize divine justice through rites and to use the “judicial miracle” as a catalyst to judgment. But beginning in the twelfth century, attempts aiming at the rationalization of the judicial process led to the disappearance of ordeals (and thus, the objective of god’s judgment) and instead resorted to human subjectivity as the agent of judgment. A fracture between two major legal systems in Europe appeared at that moment: (i) the common-law culture, where verdicts by jury replaced ordeals as a manifestation of judicial truth, almost in a mechanical fashion—which in turn lead to the emergence of the couple judge/jury, where the role of the first remained focused on preparing for the possible intervention of the second; and (ii) the civil law systems of continental Europe, receptive to the ecclesiastical model, where only the judge is tasked with saying what is true and voicing the rule. But these two systems still retain some common traits as a result of their shared origin: (a) the principle that the Christian prince (and its contemporary successor, the Western state) is bound by a “debt of justice” towards his subjects; (b) a judicial ethic ultimately resting on the idea that human justice is an imitation of divine justice; and (c) the necessary autonomy of judges from political powers, based on the superiority of the link dictating the submission of judicial conscience to God, compared with the fidelity judges owe their political leader.
These theses have been outlined in a series of essays, whose references will be further detailed. Two works of synthesis resulted in a first book published in Chinese in 2013 and a second, in French, is recently published.Footnote 1 The present paper reviews the contents of papers given at conferences during trips to China, in Beijing and Shangai in 2010 and 2013. In the first place, we will describe the core features we consider constituent factors of a uniquely European perspective, pointing towards this originality in comparison with the world of Imperial China (Section 1). As this comparison would be insufficient, we will offer further details in Section 2. It will mainly focus on the difference in priorities of the missions of the judicial system of the state. This difference led to prioritizing the administration of an abstract justice in the resolution of every conflict in the West, and careful attention to public order and harmony, with conflict resolution being secondary, in China. In Section 3, we will briefly address the issue of the judicial truth-making process. The connection between judicial institutions and the sacred is a new object for historians. It leads to overcoming the usual boundaries between the institution and the procedure. The connection to the sacred not only defines the structure of the judicial system, but also shapes the processes that allow it to uncover socially acceptable truths.
1. EUROPE: ORIGINAL FEATURES OF A COMMON JUDICIAL CULTURE?
Until now, experts of comparative law have tended to focus primarily on substantive law, with a danger of neglecting the law of procedure, the latter being only considered, so to speak, as an accessory armed wing of the legal rules. In contradistinction to this position, the guiding thread adopted in my research is based upon procedure. In my opinion, it is the configuration of the judicial process that determines the structure of the legal order, not the reverse. That leads us to moderate the importance that the comparatists—mostly in continental Europe—have attached to Roman law in the origin and formation of the continental legal orders. As a body of substantive law, Roman law actually disappeared at the end of Antiquity. In the Early Middle Ages, a new system of procedure set forth at the heart of Europe. It produced the two legal cultures of the West, common law and civil law, which parted from each other by the twelfth century. At the foundation of this system, Christianization played a considerable part. The influence of Christianism on Western law was felt less by its direct influence on religious morals and canon law than by a sort of “reflex effect”: the fact that Christianism invited the legal and judicial orders to redefine themselves with reference to the ideal of justice it brought forward.
First of all, Christianism encourages the parallel development of a non-religious way of thinking. This has not been stressed enough. This particular feature of Christianism becomes more visible in comparison with other religions. In Islam, for instance, divine law is demanding and exclusive. Neither does it have rivals nor may competition exist. The Roman manuscripts that fascinated so many Western scholars in the Middle Ages left their Muslim counterparts altogether indifferent. This is because the latter were not allowed to borrow from such sources. In contrast, within Christianism, the famous quote “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” has been, for centuries, the foremost source of the legitimacy of secular legal systems. Legal reasoning as we know it in Europe would not have unfolded as it did without such a primary impulse.
But above all, Christianism (and its Latin branch in particular) has played a vital role, because it has focused on the notion of judgment more than any other religious system. There is only one true judge from the Christian point of view, and judging is a divine act. Some might say this view is evident elsewhere. Latin Christianism is different, however, because it did not present divine justice as an act of pure transcendence, an inaccessible ideal. Latin Christians admitted that what only God might fully accomplish men are at least allowed to reproduce. For a long time, they believed they could make divine justice speak directly in the course of legal trials. This belief corresponds to the era of ordeals; at that time God’s judgment was identified with a pure miracle. This idea was then cast out, and they entrusted some among them with the task of distinguishing which acts were right and which acts were wrong. What remained, however, was the deeply spiritual character at the core of the act of judgment, as if the role of the judge still represented an imitation of its ideal model.
From the time it appeared during the twelfth century, the use of the jury in England has been justified by the oath of the twelve jurors: this oath turns the jurors into judges and entitles them to give the verdict, or vere dictum, the word of truth. In the German tradition, the collection of illustrations in the most important coutumier of the thirteenth century, the Sachsenspiegel (“Saxon mirror”), portrays échevins (scabini) at the moment directly preceding judgment, in a position of prayer. The act of judgment is perceived as a moment of intense spiritual elevation. In France, a representation of Christ on the cross usually hung above the judge’s seat, until church and state were formally separated. Even today, the French magistrates’ oath still obliges them to fulfil religiously (religieusement) the duties of their office: it is worth emphasizing the adverb because its persistence in official language is not purely accidental.
From this spiritual impregnation of the act of judging derive meaningful features, small details or bigger consequences. From the historical and anthropological point of view, small details are as instructive as larger ones. Throughout Europe, for instance, no judge has ever been seen eating, drinking, or smoking while the court is in session. Few realize this abstention stems, in fact, from an actual interdiction. This interdiction is not necessarily itself commonplace. One encounters the opposite prescription in comparative anthropology and history: eating, drinking, and smoking during court sessions is exactly what Chinese administrative instructions of the eighteenth century recommended to local state officials. Through these gestures, it was deemed appropriate for the judge to manifest his superiority over the parties.Footnote 2 Conversely, the taboo on food is an old one in Europe. It appears in Carolingian times, when it was directly connected to the duty to fast, and is continuously evident up until the present. Culture thus permeates judicial gestures more intimately than we might initially expect. Furthermore, the spiritualization of judgment brings about consequences unexpected in scope. I will briefly discuss three of these: the “debt of justice,” autonomy of judgment in relation to political authorities, and judicial deontology.
The “debt of justice” refers to the idea that the state owes justice to its subjects, meaning that it has the duty to decide any case brought to its courts. Any judicial demand must be examined. This idea flows from the identification of justice with a virtue both Christian and royal in nature. This duty was thus thrust on the state, and was operative throughout medieval Europe, where the inexecution of that duty (called denial or want of justice) was condemned by all major texts. But the idea is not universal: the Chinese official mentioned above does not owe justice, but order. He only has to decide on disputes that seem to threaten public order, and usually refers others to private arbitration.Footnote 3 The weight that the administration of justice represents for the state—including when it becomes an overburden or actual backlog—betrays, first and foremost, a cultural burden.
Second, the autonomy of judgment from political authorities has ancient roots, stretching much further back than the emergence of the modern theory of the separation of powers. This autonomy appears in the Middle Ages too. From the thirteenth century, in both England and on the European continent, the king is frequently a party to cases adjudicated by judges deciding in his name. He can thus be judged, non-suited or condemned; his acts may be declared void. The judicial body is therefore authorized, to a certain extent, to censure the political body. Once again, this rule is by no means universal: the Roman emperor never pleaded a case before his urban prefects, nor the caliph before his qadis. If this rule appears natural and self-evident in medieval Europe—if this surprising innovation meets no opposition—then that is because the power of judges is based on a double delegation: not only on the king as a supreme authority, but also on God, who knows their consciences. “The independence of the judiciary, affirmed the French President at the bi-centennial anniversary of the Court of Cassation, is first and foremost a question of each judge’s personal conscience.” This idea is not new. The judge’s conscientia refers to what is woken by the jurors’ oath at the English royal assize, and watched over by the retable picturing Christ on the cross, as a counterweight to the royal throne sitting in an angle of the Parliament of Paris’s great chamber. If the judge is capable of judging the king, it is with reference to the ultimate authority of a third party, an ideal justice the judge serves at the same time as he serves temporal powers. Jean-Baptiste Domat, the great seventeenth-century French jurist who most fully developed the theological nature of the judge’s social role, naturally deduced the necessary independence of judges from such a state. Conversely, he declared in a 1666 sermon aimed at Auvergne judges: “You, who hold your charges from gentlemen, how could you possibly abide by their passions when you act as Justices?”
Third, for the same reasons, judges must respect a strict deontology. “As you judge, you shall be judged,” states the gospel of Matthew: many moralizing discourses repeat this same message in targeting judges. In the Middle Ages and the early modern period, people felt that judges—in their very function—risked their eternal souls more than others. This was both the source of and evidence for the legitimacy at the root of their power. But as a consequence, any and all judicial trespasses had to be punished more severely than others. In the Western legal traditions, judicial corruption or abuse of power—even a mere mistake—calls for a harsher punishment than the same acts committed by a mere public official. Moreover, until the seventeenth century, the public punishment of bad judges was organized with pomp and circumstance, in a grand extraordinary show: the merciless castigation of such crimes seems the best way to guarantee a normal course of justice. If judicial corruption has virtually disappeared in Europe, it is thanks to this timeless impregnation. This sets the moral standards of European justice apart from numerous other cultures, where parties usually pay for the administration of justice, and the border between judicial corruption and a fair salary earned for the performance of judicial tasks is never clearly outlined.Footnote 4
At bottom, the different legal and judicial systems of the Western world have much in common, and share many features considered essential. We could not imagine the rule of law (or État de droit) without the principles and moral shroud of judicial practices and gestures that I have just explained. But these elementary rules often seem so simple, so natural, that they are rarely expressed in all their implications. The legal orders of the different European countries usually contain few explicit prescriptions aimed at vindicating these rules. The European Convention on Human Rights only mentions them in Article 6. If this Article is no more contested in theory than it is breached in practice—at least in relation to the integrity and impartiality of judges—it is because nations tend to respect it as a result of a common sensibility towards judges and their role in society. I would stress that the permanency of a common judicial culture makes itself felt most keenly outside the realm of judicial discourse and its leading categories, in the realm of the felt, the unsaid, the indirectly meant.
2. JUDGES AND THE SACRED IN THE OCCIDENT AND CHINA: A RESTATEMENT
These initial considerations may not accurately describe the situation in China. When considering the Chinese world, a well-known flaw of Western scholars is the tendency to develop what has come to be known as a “lack history”—e.g. seeing China only through what would be missing (implicitly compared to the West), like law, justice, monotheism, etc. Avoiding this flaw requires reconsidering the issues previously under discussion in a more proportionate way. But the revisions this analysis suggests tend to bring us in opposite directions. We are inclined to re-state, even more firmly, what we had initially intended regarding the issue of a “debt of justice.” The task of settling every case is a typical mission of the Western judge, while it never fell, as such, on the Chinese magistrate, who was primarily expected to complete other tasks (see Section 2.1). It would be a mistake, however, to oppose the ethics of the Western judge to what would be an absence of ethics in China. Rather, Western and Chinese ethics have been conceived in very different ways (see Section 2.2).
2.1 Does the Judge Owe Justice or Order?
In Western history, the notion of a “debt of justice” cannot be traced back to antiquity. Neither the Greek nor the Roman city were ever debtors of justice. In the time of classical Roman law, the jurisdictio aimed only at settling disputes of part of the population. A “debt of justice” evolved with Christianization. Echoing the words of Christ, “Blessed are those who hunger and thirst for righteousness, for they will be filled.” A mission of earthly justice is thus thrust upon the shoulders of the European king, conceived of as an anticipation of divine justice in the end times. Charlemagne promised his subjects the coming of a kingdom of justice. The coronation oath burdens kings with only a single positive obligation towards their subjects: to “cause Law and Justice, in Mercy, to be executed in all judgments” (to quote the English coronation oath of Queen Elizabeth II in 1953). To fulfil their duty to hear all those who “hunger” for justice—without distinction—no suit can be rejected purely because it is devoid of importance. At the end of the Middle Ages (thirteenth−fifteenth centuries), a stupefying multiplication of courts and judicial proceedings arises in Europe. Civil proceedings adjudicating less violent private conflicts unfold faster than criminal proceedings. Similarly, civil law (the main branch of private law) acquires a symbolic and intellectual superiority over criminal law—a trend that lingers to this day.
The judicial processes of the Chinese empire developed in a totally different fashion. We know that they focused mainly on criminal litigation, the intervention of government officials into private conflicts being merely facultative, which in turn led to the underdevelopment of private law (although this is not to say it was totally absent). The prevention and regulation of private conflicts occurred outside the sphere of state justice. Based on the works of Max Weber, it is now a fairly common view that the state is the legal order claiming a monopoly on physical constraint throughout a specific territory; in turn, each time this monopoly is challenged, it leads to an automatic response in the form of a proportional sanction. The Chinese state likely secured this monopoly at least a thousand years before the West. While Western states seem only to have effectively achieved this monopoly in the seventeenth century, the drafting of the Tang criminal code indicates that China reached this stage as early as the sixth century—even if a state monopoly on violence was locally or temporarily rendered ineffective in particular circumstances, such as wars, invasions, rebellions, etc. The most evident manifestation of such a monopoly is the formal reservation associated with the emperor’s personal ratification throughout the entire territory of every decision giving out the death penalty. In the same fashion, the Chinese imperial government included a department of punishment, whereas Western states were endowed with a department of justice set up early by the Chanceries. At the local level, Chinese officials were responsible for the effectivity of this monopoly, while their jurisdiction in economic matters made them responsible for the subsistence and prosperity of the people.
In the course of his mission, the Chinese judge does not owe each and every subject an abstract justice. He feels bound only to bestow the type of justice most useful in terms of public order and prosperity. At the time of Yuan Mei (eighteenth century), Chinese jurists debated the importance of converting corporeal punishments into monetary fines. All it took was a comparison between the advantages and disadvantages of the said conversion: on the one hand, the reduction of the fiscal charges burdening the greater number of people (that the perception of fines seemed to imply) and, on the other hand, the risks of upsetting public order through the relaxing of repression on richer people. The framework of debate is rather utilitarian,Footnote 5 without ever taking into consideration concerns regarding a strictly retributive justice. Given such a context, should we renounce opposing a Western state “debtor of justice” and a Chinese state debtor of order (as suggested by Bourgon)?Footnote 6 We think not. We believe it would amount to throwing away a precious tool in terms of which to assess and conceive differences. The act of judgement is—in China as in the West—an operation used by judges to separate right from wrong in particular cases, at the same time applying a legal rule. It is thus paramount to maintain the distinction between a culture where this act is due as a principle and without exception to any subject who asks for it, and another where it seems to be owed to the state rather than the subject, where other considerations come into play, mainly, those concerning the preservation of social peace.
The “debt of justice” can be used as an interpretative key, useful for opening many doors. Here I would like to employ it to address the question of the relations between judges and the sacred, or the relations between the state’s processes of justice and those pertaining to the supernatural world.
All cultures of the Old World—Europe, Africa, Asia—have had practices called “ordeals” or “wager of law,” designed to settle complaints through the successful performance of a specific rite.Footnote 7 Neither China nor Western Europe are exceptions to this trend. Their respective historical trajectories, however, are very different. The Carolingian period in Western Europe, around 800, saw the shaping of ordeals in terms of “god’s judgment,” attributed to some reputedly perfect divine justice and fully backed by the policies of central powers that promoted them.Footnote 8 With the mutation of the central Middle Ages (twelfth−thirteenth centuries), the Church and states that inherited the Carolingian model replaced ordeals with a so-called “rational” judicial process. In China, by contrast, it seems that state judicial institutions neither cautioned against nor excluded irrational proceedings, but simply confined these to social fields where they would not intervene. To my knowledge, the history and anthropology of ordeals and the wager of law in China have not been given much scrutiny until recently.Footnote 9 New research shows that the settlement of private cases neglected by state courts rested on either a mediation between the parties in conflict by their respective communities, or a wager of law rituals (called “deciding” or “compurgatory oaths” in French legal history) pertaining to the bundle oath-ordeal. The drafting of a complaint or accusation that is not transferred to the yamen, for example, but debated before being ritually burnt in the temple, belongs to this bundle. In a way, a state judicial institution vowing to be “rational” or “desacralized” (even if the judge does not necessarily abstain from converting popular beliefs for the sake of investigations) co-exists with practices deemed “archaic” by Westerners, but kept within the Chinese system so long as they contributed to the preservation of social order and unburdened the judicial administration of heavy procedural tasks. In Western Europe, the “debt of justice” led authorities to adopt a definite position—a radically favourable one at first, then an equally radical unfavourable one later—on the subject of practices on which the Chinese authorities did not have to rule.
In the same manner, the relations between state judges and the justice flowing from a supernatural world were totally different in Western Europe and China. In Western Europe, before the laicization process brought about in Early Modern times, the judicial process of the state can only be conceived as strictly subordinate to a divine one. A whole system of pictures, representations, and legendary tales show that earthly judicial proceedings are bound to mirror celestial ones, for the sake of judges’ souls. Judges were thought to be particularly rewarded in the afterworld if they judged correctly. For example, this perspective is evident in the picture of a pagan prince who owes his salvation—having not been baptized—to the mere grace of a correct judgment, and of judges whose judicial ministry brought about their grace.Footnote 10 On the other hand, a bad judge suffers sanctions far harsher than would a common man in the world beyond.Footnote 11 The situation was different in China. While studies show that the supernatural judicial process was depicted on the model of the state process, and that a relation of homology existed between the two, nonetheless, the latter remains wholly independent of the former. The story of the legendary Chinese figure Judge Bao is exemplary in this respect: he goes to Hell and rectifies if not the infernal judicial process, at least the tribute men usually pay to it.Footnote 12 The Chinese judge is not bound by an otherworldly judicial process; for this reason, he should not expect any outstanding spiritual gratification as reward for his judgments. Criminal law is conceived in China as an invention of Barbarians. Necessity unfortunately compels its introduction, since, in a well-behaved Chinese society, the cultivation of a respect for rites should be enough to ensure concord—and it succeeds in so doing between well-born, refined people. The judge is thus similar to a gentleman who wields a heathen tool, noctiferous by nature. His karma could be compromised by the army of dead and embittered people that he arms against him, who could be waiting for him in the netherworld. This brings us to the second question I would like to examine: judicial ethics.
2.2 Are Judges Ministers of an Abstract Justice or of Social Harmony?
In my opinion, a re-examination of the above question would be greatly beneficial. A first approach might suggest that, whereas Western European culture has traditionally grounded judges’ ethics in relation to God, China has ignored judicial deontology. Nothing could be further from the truth. No culture—be it Western, Chinese, Islamic, etc.—has understood judgment as the mechanical application of a pre-existing legal text to specific cases. Judges have always been invited to cultivate and practise virtues specific to their tasks. Moralizing speeches have always been directed at them; exempla and apologues have always portrayed the conduct of both good and bad judges. However, these admonitions have used very different tones.
It is commonly agreed that to judge others the judge should be different from a common man. The judge who would remain so is unqualified. To judge well, the judge must cast aside his common self and passions,Footnote 13 to occupy another place or the seat of another. But what is the nature of this seat? Here are some quotations regarding both European and Chinese perspectives on the subject: “The throne of justice is like the throne of God,” the English judge Bracton (or whomever actually wrote under that name) wrote in the thirteenth century; the judge adjudicates from “the place of the king and in a way, in the place of Jesus Christ, because judgments are not from men but from God.”Footnote 14 On the other side of the world, five centuries later, Wang Huizu writes the following: “if one does not put himself in the place [of the accused], one can’t argue the case on his behalf [in his favour, when the file is transmitted to the higher officer or at the autumn assizes] and if one argues with sincerity, if one scrutinizes [each aspect of the case] over and over, some slim chance of survival must be found.”Footnote 15 Whereas the Western judge is supposed to tear himself away from his quotidian state, rising towards God and thus increasing the distance between himself and the disputing parties or the accused, the Chinese judge is invited to proceed in the opposite direction: he must get out of himself, but only to identify with the accused through empathy. In proceedings where adversarial debate is not fully known, this allows the judge to play an additional role—that of a defence attorney—and to plead for moderation in the very sentence that he himself had formerly pronounced.
These oppositions can also be found in underlying maxims, and proverbial quotations enshrined in the moralizing discourses aimed at judges. On the one hand: “as you judge, you shall be judged,” “God’s judgment will be passed back upon you,” etc. On the other hand: the judge must know how to “bring the alive from the dead and not throw a dead among the living.”Footnote 16 In the latter case, the mercy that brings life to the condemned is always greater, as a rule, than the condemnation that cuts him from the living world. Unlike his Western counterpart, the Chinese judge does not hold “God in his gaze,” but keeps his eyes fixed on a society that goes on living, with the co-existence of the victim’s parents and the guilty party’s family as a point of orientation. This “vitalism” is particularly striking in the Chinese representation of the judicial process.Footnote 17 Far from being the arbiter of an abstract justice, the judge is first and foremost responsible for the maintenance of a concrete social harmony.
The same divergence is evident in the way corruption and undue influence are condemned in each culture. Etienne Balazs’sFootnote 18 position that a quasi-total indifference to judicial corruption existed in China is rather excessive. Recent historical research shows how the imperial administration distinguished corruption from a fair retribution of the judicial function and, as a consequence, punished the corrupt officials. In addition, any comparison between China and the West should take into account the differences between principles and practices, because such differences often existed in both cultures for centuries. That being said, if we stick to a comparison of the texts where such principles appear, the differences remain. Bracton, in the passage quoted above, affirms the judicial obligation to refuse what he calls gifts (munera), which he classifies into several categories: “hand” gifts (money put directly into a judge’s hand to buy a certain judgment), “reverence” gifts (obsequium: wanting to please a superior), gifts “of the tongue” (those of a seducing discourse), and “blood” gifts (ties of kinship, alliance, or friendship). In order to adjudicate well, the judge must create a void around him during a trial, cutting any social ties that could bind him as a private person. In China, on the other hand, the moral standards required of the judge never seemed to demand as much. Yuan Mei might reprove judges for the conversion of fines, but the way he does so shows that such practices were widely tolerated.Footnote 19 One of the cornerstones of the “Wang Weiqin case” has been the principle that the estate of the condemned party—seized when the exceptional sentence of dismemberment is passed—is divided between the judge and the victim.Footnote 20 Some of the tales recounted in the Parallel Cases from under the Pear Tree (approximately contemporary with Bracton and famous in the West since van Gulik’s translation) are remarkable as well. There we see that the Chinese judge wrestles with a difficult case, managing to come up with a fair solution (being the most merciful one) thanks to the intervention of his wife and mother.Footnote 21 Edifying tales such as this would be unthinkable in Europe. A judge could never decide a case with reference to an emotional bond taken as a model, even less if those relations are with women!
In conclusion, in the West the judge is portrayed as an ascetic, like a saint or monk. In this light, Bracton’s accounts (despite their typically medieval form) are not that far removed from what is being taught in ethics classes for judges even today. The ideal of a “judge-priest,” renouncing the world, seems to be the perfect antithesis of the Chinese judge. Could the Chinese judge possibly be a minister of social harmony if he set himself apart from this harmony?
3. SHAPING JUDICIAL TRUTH UNDER AN OMNISCIENT HEAVEN
This being said, in their tasks and search for judicial truth, Chinese and Western judges have been confronted by very different circumstances. We should temper the simple opposition between East and West, as the situation is more complex. In the East, we have to take into account the difference between procedures of mediation and those directed by state judges. In the West, we should be cognizant of the separation between common and civil law, which intensified during the middle of the Middle Ages. This question was first raised in our Chinese publication, and it has since come to play a more substantive role in the French work.Footnote 22 The present pages are thus conceived as a kind of addition to the book published in Chinese.
We will consider four types of procedure here. The first, “ancient procedure” (A), appears in most farming communities in countries of the Old World (Europe, Asia, Africa). There, conflict resolution is mainly achieved in one of two ways: either a composition (with one of the litigants transferring economic goods to the other to extinguish the claim) or a ritual performance, such as a purgatory oath or an ordeal. This system prevailed in early Medieval Europe, until roughly the twelfth century.Footnote 23 This procedure has been maintained in China among ethnic minorities up until the recent past and—in some cases—is even operative today.Footnote 24 With respect to the Han, this is evident in procedures called “mediations,” e.g. those that are left to be resolved by the parties themselves rather than by state officials.Footnote 25 The three other systems of procedure are as follows: on the one hand, those that appear in Europe from the second half of the twelfth century, the common law system (B) and Roman-canon law procedure, which was first created by the Church before being passed on to all the continental European states (C); on the other hand, the system traditionally used by the officials of Imperial China (D).
A and B procedures develop a logic of épreuve and not preuve.Footnote 26Preuve refers to the production of evidence, written documents, confessions, testimonies, clues, etc., that have to be subsequently interpreted by a judge to ground a judicial decision. Conversely, the judicial trial (épreuve) corresponds to the decision-making process itself. In ancient lawsuits (A), the word of the claimant—validated by an oath or the completion of an ordeal—produces the judicial truth by itself alone. This ancient structure (B) is perpetuated in the common-law suit. It is possible to show that, at the beginning of its history, between the twelfth and thirteenth centuries, the jury trial replaced the ordeal, in civil as well as criminal lawsuits.Footnote 27 It follows that judicial truth is established either by the simple assertion of a party if it is not contradicted (as in “I plead guilty”), or by the verdict of a jury. For a long time, the jury has been its own witness. Its members are supposed to have an immediate knowledge of the case (a cognitio, according to the Norman texts), which exempts it from any obligation towards a potential law of evidence. Transmission of information to the criminal jury was only progressively introduced much later, in the eighteenth century, where adversarial debate occurs in front of a jury.Footnote 28
The central thesis developed in my work is that, for the purpose of conflict resolution, divine omniscience became instrumentalized in God’s judgment, a form of ordeal specific to Early Medieval Western Europe. After the condemnation of ordeals—which began in the second half of the twelfth century and became obsolete in 1215—the two branches of the European legal culture parted: common law and civil law. At this point, they begin defining omniscience in two opposed ways. Common law mechanically transfers a presumption of omniscience onto the jury. It can be shown that, despite the evolution that occurred through the centuries, this presumption has never really vanished. Conversely, in elaborating the Roman-canon law procedure, clerks followed the model of a righteous God who appears in the story of Sodom and Gomorrah, a God who chose not to take into account what he knew through his omniscience, but instead to lead an inquest on the field (Genesis 18:21). Therefore, the judge is presumed to know nothing. He is even compelled to forget all he knew at the time the case was formally brought before him. Judicial truth can only result from the production of evidence by the parties, on an adversarial basis and under the direction of a judge. Among the four systems of procedure considered here, this system is the only one that has directly developed a proper law of evidence, distinguishing between admissible and inadmissible evidence through the establishment of a hierarchy of types of evidence, and by refining methods of evaluation of their respective evidentiary value. The proof always appears as the verification, by a judge, of a formal allegation presented by a party in a written document, in Latin positiones or articuli, in French mémoires or conclusions.
Interestingly, such a system arose and was employed during the second half of the twelfth century as the civil procedure used for internal Church conflicts. The “Best of proofs” (reine des preuves) was the testimony. Furthermore, as witnesses were themselves clerks, using torture was inconceivable. Only later was the system transposed into the criminal procedure, beginning in the thirteenth century, and the procedure called “extraordinary,” or “inquisition,” raised the confession of the accused to the status of Best of proofs and admitted the possibility of using torture against him.
It is possible to argue that the approach of Chinese state judges was equally guided by reference to an absolute ideal of truth, which was also sought in an omniscient Heaven. Unlike in Western countries, however, Chinese Heaven does not make reference to the metaphor of a personal God. It is an impersonal being with an infinite ability to materialize whatever happens in this world. For that reason, this being is presumed to know everything about the past, present, and future. The rules underlying this “heaven-world” (“heaven-earth” as Chinese scholars sometimes call it) can be understood and decoded, thus giving divination a fundamental role. Divination is normally excluded as an explanatory principle in the West, where God is said to “work in mysterious ways.” This explains why divinatory techniques—although not totally absent—have played only a minor role in the history of Western judicial procedure, while divination was part of elementary education for Chinese scholars. This “divinatory paradigm” is evident in methods of interpretation of the law,Footnote 29 as well as investigations into the facts of a case.Footnote 30 The judge therefore benefits from a major degree of freedom in his research. Here, the law of evidence is also absent from the codes, the criminal code as well as the collection of administrative canons with regulative precedents (huidian), which is remarkable. Furthermore, the possibility of using force on a discretionary basis, going as far as practising torture, is encouraged by a genuine state monopoly on the use of force (that appears far earlier in China than the West), which puts the judge in a powerful position and removes the possibility of obstacles to his actions. In practice however, the care required from the judge to maintain harmony in the society for which he is responsible deters the use of force.
The main difference between Chinese and Western cultures rests on the fact that in China, disputes are not conceived as a legal action, characterized by the confrontation of two theses to be decided through a debate, but as a disruption to the order and harmony of the world. The judge must not only identify the cause of this disorder, but also understand its present and future consequences, so he can provide an adequate resolution. In this respect, the enquiry led by King Oedipus as described in Sophocles’ play, which fascinated Michel Foucault until his last and most recently published lectures,Footnote 31 seems closer to the approach of the Chinese judge than the procedures of Greek cities at that time, or any other later Western systems of investigation.
Thus, the opposition of the elementary symbols associated with justice in each of these cultures, the Western scales and the Chinese unicorn, offers a striking illustration of their differences. In the West, justice is conceived as the art of resolving disputes, each and every one, and this mission belongs to the state. Truth is obtained by balancing opposing pleas, regardless of their antagonism, no matter how their antagonism is resolved (on the one hand by a jury trial, on the other hand by an inquest), and the need to obtain judgment is perceived as urgent. In China, state justice was freed from the systematic resolution of cases. It only goes into effect when order and harmony are threatened. Just like the unicorn, which symbolizes divination, strength, and wisdom, it falls on the judge to detect, attack, and annihilate the disorder, but always with enough care to avoid causing greater disorder. This difference gave rise to irreconcilable logics of Justice in action.
