The Enactment of Laws

In the Qin and Western Han empires, only the emperor could approve laws. Laws allowed the emperor to regulate the entire area he governed. There were two types of laws: statutes and ordinances. To discuss the promulgation of laws, we will first examine how the two types of laws were enacted by the emperor and how they were sent down to local offices.

Ordinances originated directly from imperial edicts and were separately made and enacted by the emperor. Gradually, as a large number of imperial edicts accumulated, they were ordered and classified into different sections of ordinances by government offices.Footnote ⁹ In contrast, a considerable part of the existing statutes were inherited or slightly modified from the statutes of former eras, according to the conclusions of academic research.Footnote ¹⁰ These statutes were classified according to their subject matter and then compiled into a collection of laws enacted by the central government.Footnote ¹¹ Scholars suggest that statutes constituted basic laws in the Qin and Han periods, while ordinances were formulated as supplementary laws to address occasional problems.Footnote ¹² Studies also indicate that certain statutes originated from ordinances that set out legal rules that could be continuously and generally applied.Footnote ¹³

To adapt to changes in legal circumstances, such as an ordinance, a single statute could also be created and added to the existing ones through an imperial decision. The abolition of mutilation punishments under the reign of Emperor Wen of Han 漢文帝 (r. 180–157 b.c.e.) recorded in the Treatise on Law and Punishments (Xing fa zhi 刑法志) of the Book of Han (Han shu 漢書) provides an example. According to the sources, after receiving Tiying's 緹縈 letter, Emperor Wen issued an imperial decision to abolish mutilation punishments. Then, Chancellor Zhang Cang 張蒼 and Imperial Prosecutor Feng Jing 馮敬 requested Emperor Wen to formulate a statute (qing ding lü 請定律) directing the use of alternative punishments to replace mutilation punishments. Their proposal was approved by an imperial decision, based on which a new statute was passed. The Treatise on Punishment and Law also records that a statute was formulated based on an imperial edict issued in the first year of the reign of Emperor Jing 漢景帝 (r. 157–141 b.c.e.):

As Hirose Kunio argues, in addition to the records in the received literature indicating that a single statute could be created from an imperial edict, the statute on slips 219–220 of the manuscript Statutes and Ordinances of the Second Year (Ernian lüling 二年律令) also clearly confirms that the offices of prefectures and marches could forward petitions for the creation of a single statute or ordinance.Footnote ¹⁵ Therefore, it can be concluded that the development of a single statute was not different from that of an ordinance. As the existing received and excavated texts provide little information on how the collection of statutes was inherited from former eras and then revised, arranged, and promulgated by the central court, the article will focus primarily on discussing the promulgation of a single statute or ordinance.

According to imperial decisions preserved in the received literature and included in legal manuscripts, especially in the Ordinances on Fords and Passes (Jin guan ling 津關令) of the Ernian lüling manuscript, which retain the original legislative procedure, we can define two types of legislation in Qin and Western Han China according to whether the process of submission of a petition involved: first, imperial decisions were made directly by the Emperor, with the formula “the imperial decision instructing the chancellor or/and the imperial prosecutor” (zhi zhao chengxiang/ yushi 制詔丞相/御史) appearing at the beginning; second, petitions for the creation of a law initiated by officials were submitted to the emperor and were then approved through imperial decisions, with the formula “Approved” (zhi yue ke 制曰可) appearing at the end.Footnote ¹⁶

For the two types of legislation, the decision became law (a statute or ordinance) as soon as it was approved by the emperor. However, as it was impossible for the central court to promulgate the law to the various localities in such a large territory immediately upon its enactment, and local offices could only apply a law after it was disseminated to them, to enforce a new law in local areas it needed to be promptly sent down from the central court to local offices after its enactment. A Yuelu ordinance sheds light on this process:

According to the ordinance, the day on which a document with imperial approval was sent down determines the day of submission and the day for sending down the ordinance to the relevant offices. However, the prescription of the ordinance initially appears inexplicable, as in the real decision-making process in the Qin and Western Han dynasties, the day for submitting a petition on the creation of a law would normally be earlier than the day of its imperial approval. Giele thoroughly analyzes the “petitions” appearing in the received texts and concludes that they were primarily submitted by high-ranking officials from the capital with direct access to the palace; thus petitions were usually made when the officials were present in the central court.Footnote ¹⁹ Nevertheless, the emperor would rarely immediately respond to a petition, and as a result, the submission of a petition by a high-ranking official at the court and the enactment of an imperial decision by the emperor typically occurred on different dates; in cases in which a petition was submitted by local officials from provinces or prefectures, it would have taken a long time for the emperor to receive the petition and then to approve it.Footnote ²⁰ Therefore, the Yuelu ordinance cited above legally synchronized the date of submission, the date of enactment of the ordinance and the date of dissemination of the ordinance in different circumstances and required the ordinance to be sent down on the day of its creation so that the new law could be promptly promulgated for enforcement. Based on this ordinance, it can be inferred that when an imperial decision was made by the emperor of his own accord, which did not involve the process of submission, the ordinance was also handed down to the offices on the day of enactment.

The Yuelu ordinance offers further insight into the formula “sent down on X day of X month of X year” (mou nian mou yue mou ri xia 某年某月某日下)” found in the imperial edicts preserved in excavated texts. This formula provides important information on the promulgation of these imperial edicts. For example, the ordinance written on the wooden board excavated from Songbai Han Tomb no. 1 松柏一號漢墓 in Jingzhou 荊州 states:

Scholars have discussed the meaning of the phrase “sent down on the jiashen day of the sixth month of the tenth year of Emperor Xiaowen.” Peng Hao notes that the phrase refers to the time of the enactment of the law,Footnote ²² while Wang Guihai argues that the phrase was not included in the original document of the edict but was added later by the official who managed it.Footnote ²³ According to the discussion on the Yuelu Ordinance above, the phrase at the end of this ordinance indicates that it was approved and enacted by the emperor on the jiashen day of the sixth month of the tenth year of Emperor Xiaowen, which was also the day the ordinance was sent down to the local offices.Footnote ²⁴

It is noteworthy that the phrase “sent down on X day of X month of X year” is common in the fragmentary Juyan and Dunhuang 敦煌 administrative texts pertaining to imperial edicts.Footnote ²⁵ As the formula discloses important information on the enactment and dissemination of law, it was probably necessary to write it in these documents of imperial edicts when sending them down from the central court.

The Dissemination of Laws

The previous discussion established that once a new law was enacted by the emperor, it was immediately sent down from the emperor to the local offices. Accordingly, the enactment of a law by the emperor also marked the start of its dissemination to the offices. The dissemination of a new law was vital in the process of promulgation, as it determined when the offices and the common people would receive the law and become aware of it and thus when it could be applied in local areas. Two aspects were significant in the dissemination of a new law: first, to whom a law was disseminated; second, how a law was handed down.

The formula “when receiving the document, administer its affairs and send it down to those who should use it, according to the document of the edict” (cheng shu cong shi, xia dang yong zhe ru zhao shu 承書從事，下當用者如詔書) is frequently found in the imperial edicts preserved in excavated texts. According to Ōba Osamu, it was necessary for each office to write this formula when receiving a document of an edict, as it required the offices to carry out their duties in accordance with the new law.Footnote ²⁶ However, other common formulas used in excavated texts, such as “according to statutes and ordinances” (ru lü ling 如律令) and “administrating affairs according to statutes and ordinances” (yi lü ling cong shi 以律令從事), also conveyed the same meaning.Footnote ²⁷ The formula “cheng shu cong shi, xia dang yong zhe ru zhao shu” additionally demanded that when receiving a document of an edict, offices should send it down to the offices that should apply it. This requirement fits the legal and administrative circumstances of the Qin and Western Han empires. First, as recorded in received Han literature, the volume of Qin and Han law became so immense that even officials were not aware of all the laws.Footnote ²⁸ Additionally, for a law to exert its force, it was sufficient to promulgate the law to those for whom the law was passed and used. Furthermore, considering the enormous resources required to transmit a legal document throughout the whole empire, it was economical and improved communicative efficiency if a law was disseminated to specific addressees.

Thus we will consider to whom a law was disseminated. To an extent, the subject matter and purpose of a law determined for whom it was formulated and promulgated. An important percentage of Qin and Western Han laws defined criminal behaviors and prescribed corresponding punishments, which we could call “criminal laws.”Footnote ²⁹ As these laws functioned as “conduct rules” to constrain the behavior of the common people and served as “decision rules” to guide officials in imposing punishments,Footnote ³⁰ they needed to be disseminated to both officials and the common people and be known by them.

The Qin and Western Han laws did not deal merely with criminal matters; many laws also focused on administrative matters. These laws established the rules that defined the duties of officials and regulated the administration of government affairs, which we would call “administrative laws.” In the administrative systems of the Qin and Western Han empires, although the heads of provinces and prefectures had comprehensive responsibilities, various offices (guan 官) and bureaus (cao 曹) established in the prefectures carried out specific tasks assigned by law.Footnote ³¹ Xu Shihong proposes that the classification and arrangement of different types of administrative laws in Qin and Han China to a certain extent corresponded with the responsibilities of the relevant offices, and she takes the Statutes on Finance (Jin bu lü 金布律) as an example, demonstrating that most of its statutes pertained to government affairs carried out by local finance bureaus (jin bu cao 金布曹).Footnote ³² This is also supported by the research of Barbieri-Low and Yates, who provide examples to demonstrate that certain statutes in the Ernian lüling manuscript were clearly directed at specific officials.Footnote ³³ Furthermore, some laws, especially certain ordinances, were designed to address affairs of the moment in a certain area. For example, in number 16 of the Ordinances on Passes and Fords of the Ernian lüling manuscript,Footnote ³⁴ as the ordinance allowed the purchase of horses in Changsha state (Changsha guo 長沙國), it would have been unnecessary to disseminate it throughout the whole empire to offices in areas where it would have been irrelevant. Thus, depending upon the location, rank, and official duties of the offices, the laws promulgated and used by them must have been quite different. This is consistent with the prescription of the statute in the manuscript The Eighteen Statutes of Qin (Qin lü shi ba Zhong 秦律十八種) excavated from Shuihudi Qin tomb no. 11:

Additionally, since administrative laws regulated government affairs, it was unnecessary and impractical for the populace at large to know about numerous irrelevant and complicated administrative laws besides those that required their participation, such as those on declaring taxes, registering households, and fulfilling labor services. These administrative laws were highly relevant to the social life of ordinary people, and it was therefore necessary to transmit them to them. For example, the following two Yuelu ordinances pertaining to administrative procedures for marriage and debt among the common people emphasized their promulgation to this group.

We will further consider how a new law was disseminated to local officials and the common people. First, the necessary transportation conditions were created for effective communication in Qin and Western Han China; for example, as public roads and facilities were built and improved, the central government developed into the hub of an enormous network of highways linking the entire empire.Footnote ³⁸ In addition, the standardized documents utilized by officialdom enabled more efficient administrative transmission and communication.Footnote ³⁹ Under these conditions, the Qin and Han empires established effective communicative methods to efficiently deliver official documents of different types throughout the vast territory. Statutes on forwarding documents (xing shu lü 行書律) included in the Ernian lüling manuscript and in the Yuelu manuscripts specifically stipulated that the most efficient courier system be used for the transmission of documents of imperial decisions and urgent official documents.Footnote ⁴⁰ As prescribed in these statutes, courier stations, depending on the population density and the terrain, were established every ten, twenty or thirty li Footnote ⁴¹ in local areas throughout the empire.Footnote ⁴² The couriers that staffed these stations were expected to deliver documents 200 li in a day and a night, and if they delayed forwarding documents, corresponding punishments would be imposed on them.Footnote ⁴³ Women and children were not allowed to send documents of imperial decisions.Footnote ⁴⁴ Additionally, when couriers were charged with delivering imperial edicts, they were not allowed to carry out other affairs.Footnote ⁴⁵ The arrangements and requirements for forwarding the documents of imperial decisions mandated by law indicate that it was regarded as extremely important to send them down from the central court to local offices swiftly and safely.Footnote ⁴⁶

In addition, according to the following Yuelu ordinance, the law demanded that when receiving a document of an imperial decision, local offices make and submit a register in which detailed information regarding the arrival of the imperial decision as well as relevant questions and deliberations about it should be noted down. Such registers could be used to inspect the delivery of an imperial decision at every stop. Additionally, during the process of promulgating a law downwards, the collection and submission of relevant questions and deliberations on it from local offices upwards may have helped the central court to learn about the legal problems that arose in the process of its promulgation in local areas, allowing the central court to interpret the meaning of a law that had been established by legislative procedures or to find proper legal solutions for its enforcement by local offices.

We will examine how a document of an imperial edict was delivered by courier as reflected in excavated administrative texts of the Qin and Western Han empires. Drawing on the Liye materials, Fujita Katsuhisa suggests that a Qin province functioned not only as an administrative and military center but also as a center for accumulating and delivering government documents. When delivering an official document, a province could either send it by courier or deliver it through a relay network according to the order of prefectures (yi ci chuan 以次傳).Footnote ⁴⁸ The documents forwarded by courier were directly and separately sent down from a province to subordinate offices, as the text “Forwarded by courier to Qianling. from Dongting” (Qianling yi you xing Dongting 遷陵以郵行⋅洞庭) shows, so that they could be delivered more efficiently and swiftly. Therefore, only important and urgent government documents, including documents of imperial edicts, were forwarded by couriers in Dongting Province.Footnote ⁴⁹ In addition, to improve the efficiency of courier delivery, courier staff typically consisted of native people who were more familiar with the natural environment, public transportation, and communicative conditions of the local area.Footnote ⁵⁰ Additionally, administrative texts excavated along the northwest border indicate that more durable types of wood were used for writing and delivering important government documents such as imperial edicts.Footnote ⁵¹ “Evaluations of courier documents” (You shu ke 郵書課) are found frequently in the Liye and Juyan texts and refer to assessments of whether the delivery of government documents by courier met the legal requirements.Footnote ⁵² The administrative texts demonstrate that the Qin and Han governments attempted to strictly manage and control the dissemination of imperial edicts by courier in accordance with the law.

Further discussion of an administrative record of the promulgation of a law would be beneficial for our research. “The Document of the Edict of the Fifth Year of Yuankang” (Yuankang wunian zhaoshu ce 元康五年詔書冊) excavated at Juyan provides a good example. The first half of the manuscript records the legislative process and the content of an imperial edict pertaining to the laying down of arms and relevant ritual prescriptions for the summer solstice of the fifth year of Yuankang (61 b.c.e.), while the second half is a record of the promulgation of the imperial edict from the central court to local offices in northwestern China.Footnote ⁵³

As the imperial decision concerned the laying down of arms and relevant ritual prescriptions for the summer solstice, it was disseminated to military offices in Juyan, distantly located on the northwestern border of Western Han China. The document shows how an imperial edict was disseminated from the top down. Initially, an imperial edict was transmitted within the inner circle: it was first sent down from the emperor to the imperial prosecutor, who acted as the secretary of the emperor and was responsible for handling the correspondence from and to him. The imperial prosecutor in turn handed it down to the chancellor. Although the official rank of the chancellor was higher, the formula “send down” (xia 下) was used for the promulgation of an imperial edict.Footnote ⁵⁴ Then an imperial edict was transmitted from the chancellor to provincial offices, from these to prefectural offices, and finally to the offices at the lowest levels. When a local office received a document of an imperial edict, the names of the officials who had handed it down were listed at the end, preceded by their official titles.Footnote ⁵⁵ The original records of the promulgation were probably written down and appended to a document of an imperial edict by them.

Based on the “Document of Mileage” (Licheng shu 里程書) found at Xuanquan 懸泉, which records the distances between major postal stations in the northwest, Ma Yi calculates that the distance between Zhangye 張掖 and Chang'an 長安 was approximately 2,805 li. Footnote ⁵⁶ Accordingly, it took thirty-nine days to deliver “The Document of the Edict of the Fifth Year of Yuankang” from Chang'an to Zhangye at a speed of approximately 72 li in one day and one night. This was much slower than the required speed discussed above, but it eventually arrived in the offices before the summer solstice, when it needed to be applied by military officials. Based on the existing materials, we cannot know whether the delivery of the imperial decision was delayed for certain reasons or whether the responsible couriers were punished. It is possible that although the government offices of the Qin and Western Han empires attempted to execute the swift transmission of imperial edicts in accordance with the law, a late delivery was still common. For example, it took as long as sixty-one days to send the “Document of the Edict of the Third Year of Yongshi” (Yongshi sannian zhaoshu ce 永始三年詔書冊) from the central court to Zhangye Province for the second time.Footnote ⁵⁷ Scholars also argue that the transmission of administrative documents in Qin China was not as efficient as prescribed by the law.Footnote ⁵⁸

We will briefly discuss how a new law was disseminated and made known to the common people, an issue that has been studied by scholars from different perspectives.Footnote ⁵⁹ In Qin and Western Han, government documents that circulated in officialdom, including documents of imperial edicts, were not transmitted to the common people.Footnote ⁶⁰ As the common people were under the supervision and governance of prefecture- and district-level offices, necessary information was conveyed to them by local officials. Considering the limitations among the Qin and Han commoners with respect to literacy, and the varying levels of literacy they may have had, the method of having local officials proclaim new laws to the people was commonly used in the empires.Footnote ⁶¹ The Book of Han records incidents of officials publicizing laws to the populace. For example, under the reign of Emperor Wen, when officials in Shandong 山東 announced laws, the people, including those who were elderly, frail, and humpbacked, went to the public meetings to listen.Footnote ⁶² The method of publicizing laws in public meetings is also attested by a Yuelu ordinance. According to this ordinance, neighborhood heads and local officials, including overseers of districts and scribe directors, were responsible for reading the laws aloud in local gatherings.

Additionally, laws were publicized in special written forms in public places to draw the attention of the common people. Scholars have surveyed examples found in excavated texts to show that, following the method used in the Warring States period (475–221 b.c.e.), the Qin and Han empires also cast laws on stones and bronzes and placed them in populous locations to promulgate them to commoners.Footnote ⁶⁴ Laws that the general public needed to know were also written and published in the form of “posted documents” (bian shu 扁書) by local offices in Western Han China. Ma Yi suggests that “bian 扁” is derived from “bian 徧,” which means “spread all over.” Accordingly, “posted documents” probably means that the documents should be widely disseminated and brought to the attention of the common people.Footnote ⁶⁵ Posted documents excavated from sites at Juyan and Dunhuang indicate that they were normally written on large wooden boards or on mud walls and were displayed in populous and conspicuous local places such as marketplaces, village gates, and police stations.Footnote ⁶⁶ The open display of laws in a special form could have had a visual impact on the common people, as to a certain extent it insinuated the authority of the government and the potential deterrent of punishment for crimes.Footnote ⁶⁷ Since the language of laws was so complicated and specialized that legally untrained people could not understand them even after seeing them put on display and hearing them read, officials were probably obligated to explain the contents of the laws to commoners.Footnote ⁶⁸ Therefore, the method of displaying laws in public places relied on a combination of writing and speech.

Based on Han administrative texts excavated at Juyan and Dunhuang that required the promulgation of a law to the common people through posted documents, we learn that when a document of an imperial edict arrived at an office, in addition to the formula “cheng shu cong shi, xia dang yong zhe” used to emphasize sending down the law to the offices that should apply it, a formula such as “clearly write [the law] on large posted documents … let the common people entirely understand it” (ming bai da bianshu … ling baixing jin zhi zhi 明白大扁書 … 令百姓盡知之) was also written and appended to the document of an imperial edict.Footnote ⁶⁹ “The Document of the Edict of the Third Year of Yongshi” excavated at Juyan provides an example:

Despite the available sources, we cannot precisely know how well laws that needed to be known by the common people were disseminated to them in Qin and Western Han China; however, we have reason to assume, based on research from different perspectives, that the general populace had some legal knowledge. Sanft provides examples to show that the people of Qin and Western Han China actively participated in different stages of criminal procedures, which indicates that common legal knowledge was possessed by them.Footnote ⁷¹ Korolkov describes Qin and Han interrogation procedures as “legal disputes” between accused ordinary people and interrogating officials in which the former actively applied legal knowledge to argue for themselves in legal cases.Footnote ⁷² Jiang Tao compares three different versions of “The Document of the Edict of the Dove-headed Staff” (Wangzhang zhaoshu 王杖詔書) and concludes that the manuscripts were probably copied by the common people from the edict, which was circulated among them after its promulgation.Footnote ⁷³

The Enforcement of Laws

In this section, we examine when and how a new law took effect in local areas during the process of promulgation. As the previously discussed formula “cheng shu cong shi ru zhao shu” required offices to carry out affairs according to the law upon receipt of it, we can conclude that a new law must have been effective by that time. Nevertheless, we should consider an important question: when did a new law come into effect at local offices? The Yuelu ordinance numbered 32 of the B Ordinances on Infantries (zu ling yi 卒令乙) is important to this discussion:

The ordinance differentiates two circumstances for the execution of a new statute or an ordinance. In the first circumstance, if no related statutes or ordinances existed, the new statute or ordinance came into effect on the day it arrived at the local courts.Footnote ⁷⁵ Even though the Qin and Han empires emphasized applying unified laws across the whole territory, as government offices situated in different places could not simultaneously receive a new law, during the process of promulgation of the law, some offices would apply the new law to decide a case after having received it, while other offices still had no knowledge of it and no chance to use it. This would result in an action being handled differently in different offices during the time period.

In the second circumstance, old prohibitions existed; however, the corresponding new statute or ordinance newly defined the punishment or increased or decreased the punishment for violating the prohibitions. According to this ordinance, the new law came into effect on the day of submission (zou ri). To understand precisely what “zou ri” refers to, we should look back to the Yuelu ordinance numbered 27, also belonging to the B Ordinances on Infantries discussed above, as it clearly states that the day a law is approved and sent down from the emperor (shu xia ri) determines the day of its submission (zou ri). Correspondingly, the new statute or ordinance came into effect in local areas on the day of enactment in the central court. We must, then, find reasons to explain this. Compared to the first circumstance in which no related laws existed, in the second circumstance, the point when a new law came into effect probably automatically determined the abrogation of corresponding extant laws. It is possible that to promptly abolish the old laws and determine the criminality and penalty of an action with the new law, it came into force across the whole empire on the day of its enactment. Admittedly, this is a highly speculative explanation based on the available evidence. Before a new law had been transmitted and made known to local courts, in real situations, officials could only have applied existing laws to decide cases; thus, when receiving the new law, officials would have to reverse the former judicial decision and rehear the case based on the new law. As we do not have records of such legal cases preserved in excavated and received texts, we cannot know how officials handled these cases during the process of the promulgation of a newly revised law.

In summary, a new law came into force in local areas on the day of its arrival at the local courts or on the day of its enactment in the central court depending on whether related laws existed. Accordingly, the legal status of an action was determined by local offices with the law valid at the point of judgment, not with the law effective at the point of commission. Then, the common people would have been punished by a law that was not yet passed and promulgated when their actions were undertaken. Therefore, a new law in Qin and Western Han China was ex post facto, as it reached backwards to a past action and retroactively determined liabilities and punishments for actions performed before the law came into effect.Footnote ⁷⁶ Although the Qin and Western Han governments promulgated laws to the general population for guidance and control, to an extent, commoners could not avoid the legal consequences of a retroactive new law that may have changed the legal status of their previous action from the time when they performed it.

However, under the Qin and Han dynasties, if a new law required active participation from the common people, a certain amount of time would be allowed for them to learn about it and to conform their behavior to the law. The following ordinance cited in case no. 14 of the Zou yan shu 奏讞書 collection provides an example.Footnote ⁷⁷ The ordinance permits commoners without a household registration to register themselves at government offices within thirty days of the ordinance's transmission to prefecture and march offices; otherwise, they would be punished by law.