The origins and nature of the Ernian lüling text

Han laws could only be enacted by Emperors, and they were then transmitted and enforced by government offices of different levels across the whole empire.Footnote ³ Laws were used as a principal instrument to strengthen the power of the state and maintain social order. The Ernian lüling text buried in the Zhangjiashan no. 247 tomb is composed of 27 categories of statutes and one category of ordinances, which include both administrative and penal laws, thus demonstrating the official origins of the text.Footnote ⁴

As the statutes and ordinances of the Ernian lüling manuscript were classified and arranged according to their subject matter, showing the use of a certain structure, scholars suggest that the text originates from a law code or an official law text entitled “Ernian lüling” promulgated by the central government (Li and Xing Reference Li and Xing2001: 139–40; Yang Reference Yang2005: 27–31; Li Reference Li2009: 358–62). MacCormack (Reference MacCormack2004: 48) argues that the Ernian lüling text cannot be regarded as a law code in a technical sense, as its structure does not show a particular form of coherence, and the chapters of statutes and ordinances do not exhibit a prearranged relationship to one another. Law codes were formed until the start of the post-Han period.

We analyse the existence of a law text entitled “Ernian lüling” promulgated by the central government. According to excavated law manuscripts, Han laws took two forms – statutes (lü 律) and ordinances (ling 令) – presenting distinct differences.Footnote ⁵ Statutes were comparatively fixed legal rules that defined illegal behaviours and that determined corresponding punishments, while ordinances were individually enacted by Emperors to address current social circumstances and to update existing statutes.Footnote ⁶ Due to the differences, it is most likely that statutes and ordinances were separately compiled and arranged by the central government.Footnote ⁷ Therefore, a single unified law text promulgated by the central government and including both statutes and ordinances probably did not exist (MacCormack Reference MacCormack2004: 50–7). Accordingly, the Ernian lüling text with a collection of statutes and ordinances did not originate from such a law text.

We further discuss the promulgation and distribution of law texts to local government offices. First, after a new law was enacted by the Emperor, it could be transmitted from the top down as follows: from the central government to local governments of different levels and finally to the lowest offices as shown in the “Document of the Ordinance of the Fifth Year of Yuankang (Yuankang wunian zhaoshu ce 元康五年詔書冊)” from Juyan 居延 materials.Footnote ⁸ Advanced systems of administrative document communication used in the Han period facilitated the process of handing down new laws (Tomiya Reference Tomiya, Hengwu and Libo2013: 341–54). Second, local Qin and Han offices could also copy laws pertaining to their work. A statute of the Qin Eighteen Statutes manuscript excavated from the Shuihudi Qin tomb no. 11 睡虎地十一號秦墓 states: “Prefectures each inform metropolitan offices residing in their prefectures to copy statutes used by them”.Footnote ⁹ This shows that Qin and Han government offices could independently copy and compile law texts pertaining to their contexts and then apply these laws. It can also be inferred that local government offices did not apply a unified law text issued by the central government and that their law texts included different statutes and ordinances. The Ernian lüling text was presumably based on such a law text for local offices and possibly one subordinated to the Nan Commandery where the Zhangjiashan no. 247 tomb is located.

To understand the nature of the Ernian lüling text, we must discuss its compilation. It seems that it was not completely copied from the law text of a local government office and that it may not have been compiled for practical application. First, the arrangement of laws does not denote coherent and systematic selection for official use. Although 27 categories of statutes were incorporated into the Ernian lüling manuscript, their lengths vary significantly. “Statutes on Banditry” (Zei lü 賊律), “Statutes on Theft” (Dao lü 盜律) and “Statutes on Household Registration” (Hu lü 户律) include numerous detailed articles of their respective categories, while “Statutes on the Transportation of Goods” (Jun shu lü 均輸律) and “Statutes on [Passes and] Markets” (Guan shi lü [關]市律) include only two articles each, and “Statutes on Orders of Rank” (Jue lü 爵律) includes three articles. Statutes with only two or three articles were presumably not sufficient to address the official tasks of a government office. Additionally, compared to similar laws found at archaeological sites, some laws listed in the Ernian lüling text were not identical copies of originally enacted laws. Rather, some statutes were abbreviations of the originals (Barbieri-Low and Yates Reference Barbieri-Low and Yates2015: 28–32), and the arrangement and order of the contents of certain statutes varied (You Reference You2013: 42–4). Furthermore, in addressing official tasks, officials were normally required to identify appropriate statutes and ordinances that could be applied. Catalogues of statutes and ordinancesFootnote ¹⁰ found in Han manuscripts excavated from archaeological sites must have been practically used to identify articles from the law texts of government offices. Comparatively, it would be inconvenient for officials to find specific articles in the long Ernian lüling manuscript, which includes a large number of statutes and ordinances without such a catalogue.

Based on the above discussion, it is likely that the Ernian lüling manuscript, in spite of it including a law text of official origin, was not compiled for use in government offices. As the law manuscript was finally buried with the other six manuscripts in the basket in Zhangjiashan Han tomb no. 247 as a funeral object, this raises questions central to further discussions presented in this paper. What were the fundamental purposes of compiling the Ernian lüling manuscript? How was the manuscript connected to the tomb owner? What were the motivations behind burying the law manuscript in his tomb? These questions lead us to investigate the status of the tomb owner.

The Tomb owner

The Calendar (Lipu 歷譜), positioned between the Ernian lüling and Zou yan shu (Writings on Submitted Doubtful Cases 奏讞書) manuscripts, records the first day of the lunar months (shuori 朔日) from the fourth year of Emperor Gao's 漢高祖 (203 bce) reign to the second year of Empress Lü’s 呂后 (186 bce) reign (Zhang Reference Zhang2008: 69–74; Li Jingrong Reference Li2014: 60–2). Only two records are included in the Calendar besides the above dates. These records document critical events occurring during the life of the tomb owner.

The first record was written on a fragmentary slip, which is denoted by the editor as slip no. 2. However, researchers (Zhang Reference Zhang2008: 69–74; Li Jingrong Reference Li2014: 60–2) show that it should be considered part of slip no. 1 of the Calendar manuscript based on historical recordings and physical features of the bamboo slip, and it notes the dates of the fourth year of Emperor Gao's reign (203 bce). It states: “recentlyFootnote ¹¹ surrendered and became a subject of Han”, which likely means that the tomb owner surrendered to Han and became a subject of Han in the year 203 bce.Footnote ¹² Therefore, the Calendar begins with the year in which the tomb owner became a Han subject. The second record was found on slip no. 10 with the dates of the first year of Emperor Hui's reign (194 bce). It reads: “in the sixth month, retired from office due to illness”. Accordingly, the tomb owner had worked as an official before retiring in the sixth month of 194 bce. Since the time at which the tomb owner was awarded an official position in Han is not mentioned, it is possible to infer that he had already served as an official prior to surrendering to Han in the year 203 bce and later continued his official career. Therefore, the two Calendar records respectively mark the beginning and the end of the owner's official career under the reign of Han.

The dimensions, structures and funeral objects of Zhangjiashan tomb no. 247 also provide information on the status of its owner. Comparison with similar early Han tombs excavated in the Jiangling district show that the owner of Zhangjiashan tomb no. 247 was most likely a low-ranking local official (Zhangjiashan ersiqi hao Hanmu zhujian zhengli xiaozu 2006: 1). The task of knowing statutes and ordinances well was considered a necessary skill of a qualified lower-level official in the Qin and Han periods.Footnote ¹³ Therefore, it is reasonable to assume that the tomb owner had knowledge of the law. This corresponds to the fact that two legal manuscripts, the Ernian lüling and Zou yan shu manuscripts, were found in the tomb.

Among the funeral objects observed, a dove-headed staff was the only item found in the inner coffin.Footnote ¹⁴ Staffs of this kind granted their holders privileges and could symbolize their respectable status in the Han period (Loewe Reference Loewe1965: 13–26). This is probably why the dove-headed staff was regarded as most important to the tomb owner and why it was placed together with the corpse. One statute of the Ernian lüling manuscript regulates prerequisites for receiving a dove-headed staff in the Han period:

According to the statute, staffs were specially bestowed upon the elderly. As noted above, the tomb owner probably did not enjoy high social status. Even if we assume that he had been awarded the fifth rank or higher, he would have died at over the age of 70, affording him a dove-headed staff (Li Jingrong Reference Li2014: 62–4; Barbieri-Low and Yates Reference Barbieri-Low and Yates2015: 105–6). This corresponds to the dates of the owner's Calendar. As the Calendar ends with the second year of Empress Lü’s reign (186 bce), the owner was probably buried during or shortly after this year when he was older than 70. He was unable to conduct official duties and retired from office due to illness in the first year of Emperor Hui's reign (194 bce) at the age of over 62 and died eight years later.

The title “Statutes and Ordinances of the Second Year”

As stated above, the last year recorded in the Calendar is the second year of Empress Lü’s reign (186 bce), nearing the death of the tomb owner. As it happens the Ernian lüling manuscript was entitled “Statutes and Ordinances of the Second Year” (Ernian lüling 二年律令). This would lead us to consider whether there was a connection between the title and the second year of Empress Lü’s reign (186 bce) and why the manuscript was titled “the second year”, and what its true meaning could be.

Scholars have discussed the title “Statutes and Ordinances of the Second Year” of the Ernian lüling manuscript and have primarily focused on “which second year” is designated (Zhang Reference Zhang1999: 40–5; Li and Xing Reference Li and Xing2001: 134–40; Cao Reference Cao2005: 1–3; Li Li Reference Li2009: 358–62; Xing Reference Xing2011: 147–8; Wang Reference Wang2012: 53–5). However, before discussing the designated second year, we must first understand what the title refers to and what information it provides. The title leaves us with three possibilities: were the statutes and ordinances made and enacted in “the second year”; were they applied in “the second year”; or were they compiled and written in the Ernian lüling manuscript in “the second year”?

First, we can easily exclude the first possibility that the statutes and ordinances were made and enacted in the second year. Through analyses of the historical context of certain statutes and ordinances included in the Ernian lüling manuscript, scholars clearly demonstrate that they were not enacted in one year: many statutes were inherited from the Qin period with minor modifications while other statutes and ordinances were enacted during the early Han period (Ōba Osamu Reference Ōba, Spafford, Yates, Giele and Nylan2001: 129–30; Gao Reference Gao2003: 32–6; Cao Reference Cao2005: 1–12; Zhang Zhongwei Reference Zhang2012: 31–7; Barbieri-Low and Yates Reference Barbieri-Low and Yates2015: 62–4).

We thus discuss the other two possibilities: whether the statutes and ordinances were applied, or written in the manuscript, in the second year. As the Ernian lüling text originated from a law text of a local government office, it is beneficial to discuss the copy, collation and application of official law texts. To adapt to current social circumstances and to address new legal problems, certain existing statutes and ordinances were abolished or modified, and new ones were made and enacted from time to time.Footnote ¹⁶ Once new laws were brought in and when existing laws were changed, the central government must have taken effective measures to inform local offices of current binding laws, first through the top-down transmission of individual laws mentioned in the previous chapters and second through the accurate and strict collation of laws by government offices.

One statute of the Eighteen Qin Statutes manuscript (Qin lü shi ba zhong 秦律十八種) excavated from Shuihudi Qin tomb no. 11 likely reflects the collation of laws in the central government: “Annually, penal statutes are to be collated by the Chief Prosecutor”.Footnote ¹⁷ According to the statute, it can be inferred that during collation, newly made or modified statutes were probably added to law texts while obsolete ones were removed. Then, collated texts of the central government could possibly have been used for the further transmission of updated laws among local offices.

Additionally, law texts of local offices were strictly copied and collated. Two administrative Qin documents found at the Liye 里耶 site (previous Dongting Commandery 洞庭郡, present-day Hunan 湖南) pertain to the collation of statutes and ordinances at the prefecture level:

The two documents cited above describe law collation methods used in local offices. The first shows that under the order of the prefecture, Assistant of Storehouse Chu 處 was immediately sent to the prefecture court to collate the laws of his department. It appears that the courts superintended the collation of laws in subordinate departments of prefectures. According to the second document, a prefecture could also send scribes to collate laws of its neighbouring prefectures.

Based on the above materials, Qin and Han laws were strictly collated in both central and local government offices so that updated binding laws could be clearly informed and correctly copied (Chen Reference Chen2015: 210–7). After collation, abolished statutes and ordinances were likely removed from official law texts and could not be used. As obsolete laws were irrelevant in addressing current affairs, it would be unnecessary to store them, so they were gradually discarded and forgotten.Footnote ²⁰ Therefore, it is most likely that official law texts compiled in a certain year only included binding laws applied in the given year, while laws newly enacted and modified, i.e. applied in a certain year, needed to be copied by offices in that year. Even if we cannot determine the exact meaning of the title of “Ernian lüling”, as its text is of official origin, it should contain statutes and ordinances applied in the designated second year and it was also probably compiled in the given year.

We also consider which “second year” is referred to in the title. To answer this question we investigate dates of the statutes and ordinances of the Ernian lüling text. Based on historical contexts, we can determine a terminus post quem of certain statutes and ordinances, specifically, the date after which they could be enacted and then applied. Among them, the statute on slip no. 85 and the ordinance with the number 22 are important in investigating the date of the Ernian lüling manuscript. The statute grants preferential treatment to “King Xuan of Lü” (Lü xuan Wang 呂宣王), and the ordinance gives privileges to the “Marquis of Lu” (Lu Hou 魯侯). According to historical records (Han shu 6: 679, Bangu Reference Bangu1982), in the first year of Empress Lü’s reign (187 bce), she conferred the two titles to her father and maternal grandson respectively (Li and Xing Reference Li and Xing2001: 127–35). Therefore, the statute and ordinance could not have been enacted or applied earlier than 187 bce. It is known that in the last year of Empress Lü’s reign (180 bce), family members of Empress Lü lost power, and they were executed after her death (Han shu 3: 100–3, Bangu Reference Bangu1982), and undoubtedly the laws giving them prerogatives were shortly abrogated, so the last possible year that the statute and ordinance could have been applied is 180 bce. As the Ernian lüling manuscript contains laws applied in the second year and as only Empress Lü’s calendar was used between 187 and 180 bce, the statute on slip 85 and ordinance 22 could only be applied in the second year of Empress Lü’s reign (186 bce). Therefore, “the second year” of the title refers to the second year of Empress Lü’s reign (186 bce), and the Ernian lüling manuscript with laws applied in this second year was presumably compiled in that year.

The function of the Ernian lüling manuscript

Our previous study shows that the second year of Empress Lü’s reign (186 bce) is the last year recorded in the Calendar, which is around the time of the death of the tomb owner and is eight years after he retired from office, due to illness, in the first year of Emperor Hui's reign (194 bce). As the Ernian lüling manuscript shows laws enacted and applied after his retirement and as it was written at around the time of his death, it is apparent that the tomb owner could not have used it to conduct official work during his career. This coincides with the previous inference that the Ernian lüling text was not compiled for official use. It also seems that after the manuscript had been created, the tomb owner probably did not use it during his short remaining lifetime. First, law texts had strong official characteristics, as laws were promulgated and employed for practical purposes. Such texts thus differed from literary or philosophical texts in that the latter could be read for entertainment purposes or simply to acquire knowledge. Accordingly, it is unlikely that the owner wished to read a text with a large number of statutes and ordinances nearing the end of his life and possibly while he suffered a serious illness. Second, as a local Han official, the tomb owner should have possessed considerable knowledge of the law, and if he had read the manuscript he would have easily noticed and revised mistakes left in the text (You Reference You2013: 41–50). For example, to correct graphs, he could remove incorrect characters and replace them with the right ones. However, we find no evidence of such when investigating bamboo strips.

From the above discussion, we may infer the fundamental purpose of producing the Ernian lüling manuscript. As the manuscript compiled around the time of his death was not employed for practical purposes, it was probably intended for burial in the tomb and was likely specifically made for use in the afterlife. Accordingly, we must investigate potential motivations behind storing the Ernian lüling manuscript in the tomb as a funeral text.

For this investigation, it is first necessary to identify relevant beliefs concerning the afterlife in the Han period. This has been studied from different perspectives by numerous scholars. In examining the structures and contents of Han tombs, Ericson (Reference Ericson, Nylan and Loewe2010: 81) suggests that Han tombs can be regarded as “way stations” for the dead with elements from the living world, which shows that Han tombs with their contents were prepared as “an extension of the living”. Through a detailed discussion of informing-the-underground texts (gao di shu 告地書) of the Han period, Guo Jue (Reference Jue, Olberding and Ivanhoe2011: 102–3) argues that there was a belief in the Qin and Han periods that the social structure and administrative system of the underground world mirrored that of the living world. According to the findings of Poo Mu-chou (Reference Poo, Olberding and Ivanhoe2011: 20), the bureaucratic netherworld of the Former Han depicts “all signs of a unified empire” of the living world.

The above findings show that in the Han period the life of the underworld was probably considered a mirror image of the living world. If this was the case, what could be the motivations for burying law manuscripts in tombs? Several scholars have devoted attention to this topic. Tomiya (Reference Tomiya2010: 306) and Zhang (Reference Zhang2015: 45–8) posit that law manuscripts buried in tombs were used to exorcise evil spirits and to protect graves, as statutes and ordinances could act as an effective deterrent in the living world. Their opinion sounds unconvincing, as they did not investigate law manuscripts in their “archaeological contexts” to draw this conclusion; besides, if it had been a popular belief to regard law texts buried in tombs as deterrents against evil spirits in the Qin and Han periods, then it would be difficult to explain why law manuscripts were only found in certain tombs. Zhou (Reference Zhou2016: 49–54) argues that law manuscripts found in tombs were personal belongings of the deceased that had been used for administrative tasks and were then buried in tombs. The generalization that law manuscripts stored in tombs were used by their owners should be based on thorough case studies. For example, the case of the Ernian lüling manuscript shows that the owner could not have used it for official tasks. Additionally, although Zhou Haifeng observes a relationship between law manuscripts and their owners, he still does not identify any rationale for burying law manuscripts in tombs or their potential functions.

In addition to the Ernian lüling and Zou yan shu manuscripts excavated from Zhangjiashan Han tomb no. 247, collections of law manuscripts were also found in other tombs of the ancient Southern Commandery: Longgong Qin tomb no. 6 龍崗六號秦墓 and Shuihudi Qin tomb no. 11 睡虎地十一號秦墓.Footnote ²¹ A wooden board stored in Longgang tomb no. 6 records a retrial that resulted in an acquittal of a mutilated criminal suspect, who was the likely tomb owner. As the feet of the owner were not found, he may have received a mutilation punishment. Scholars (Li Reference Li2001: 149–51; Huang Reference Huang2001: 152–5; Hu Reference Hu2001: 156–60) posit that the owner may have become a “hidden official (yinguan 隱官)” and may have worked in an imperial garden after he had been proven innocent through the retrial. This coincides with the fact that statutes found in the tomb concern the administration of imperial parks. A collection of five different legal manuscripts was stored with the corpse of the owner in the inner coffin of Shuihudi tomb no. 11. According to the Chronicle (Biannianji 編年紀) buried beside the law manuscripts, tomb owner Xi 喜 had served as a Scribe of the Prefect (lingshi 令史) in two different Qin prefectures and was responsible for trying criminal cases. This may explain why various legal manuscripts were buried in his tomb.

According to the above discussion, law manuscripts found in the three tombs focus on the official duties of their owners. As Loewe (Reference Loewe and Shaughnessy1997: 190–1) suggests, law manuscripts stored in tombs may note the deceased person's profession and achievements so that he may obtain corresponding privileges in the underworld. This may explain why law manuscripts connected to the careers of owners were placed in their tombs.

After discussing motivations for the burial of law manuscripts, we must still investigate the Ernian lüling manuscript in its “archaeological context”. If we assume that “the basket of writings” of seven manuscripts in Zhangjiashan tomb no. 247 was purposefully composed, it is necessary to discuss systematically their functions to determine potential logics of selection and design. It seems that their specific locations in the basket are determined by the nature and functions of corresponding texts.

According to the diagram in Figure 1, showing the placement of manuscripts in the basket, the Ernian lüling (see section A), Calendar (see section B) and Zou yan shu (see section C) manuscripts were located close to each other. The above discussion shows that the two records found in the Calendar document denote the start and end of the owner's official career in the Han period while the Ernian lüling and Zou yan shu manuscripts are also related to his official duties. The third largest, Writings on Mathematics (Suan shu shu 算數書, see section E), was situated close to the Ernian lüling manuscript in the left-hand corner. According to Cullen (Reference Cullen2004: 11–3), this manuscript could serve as a practical handbook for officials in performing their daily tasks, as it presents solutions to mathematical problems and modes of calculation used for administrative tasks. The four manuscripts likely note the official capabilities and skills of the tomb owner to the underworld.

Figure 1.

Drawing based on Zhangjiashan ersiqi hao Hanmu zhujian zhengli xiaozu (2001: 332, Appendix B).

In addition to the four manuscripts, the medical manuscript Writings on Channels (Mai shu 脈書, see section D) was positioned between the Ernian lüling and Zou yan shu manuscripts, probably because this manuscript is comparatively small and fits in this space well. The military manuscript He Lü (He Lü 蓋盧, see section F) was located with a medical manuscript Writing on Therapeutic Gymnastics (Yin shu 引書, see section G) placed in the right-hand corner. It appears that the three manuscripts are not related to the official tasks of the owner, and they may exhibit his interest in and knowledge of military and medical texts. As a whole, it seems that “the basket of writings” of seven manuscripts illustrates the administrative and judicial capabilities, knowledge and interests of the owner, who had worked as a local official in the early Han period.

Finally, as Zhangjiashan Han tomb no. 247 had been designed and constructed in its entirety, all of the funeral objects that it contained were combined to realize the function of the tomb (Wu Reference Wu2010: 85). Therefore, we may comprehensively consider the fundamental purposes of the funeral objects found, including “a basket of writings”, a dove-headed staff, and a number of lacquer and bronze wares (Jingzhou diqu bowuguan 1985: 2–8). These objects were likely buried in the tomb to prove the tomb owner's social status to the underworld and to meet his needs in the underworld.