Download PDF | Paul Heng-chao Ch'en - Chinese Legal Tradition Under the Mongols_ The Code of 1291 as Reconstructed-Princeton University Press (2015).
230 Pages
PREFACE
The Yiian dynasty was one of the most important periods in the development of Chinese civilization. It was during the Yiian that centuries of war in China between the Liao, the Chin, and the Sung terminated under a unified empire. For the first time in history, China as a whole experienced a nomadic conquest and was dominated by Mongolian rulers. It was also during the Yiian that the great urban and commercial transformation initiated in the T’ang and expanded in the Sung reached its peak.
As a result of the interaction between the Mongols and Chinese, this great period also confronted Chinese society with new questions. How to react to new situations under the alien rulers became an urgent concern for the Chinese. Conversely, the administration of a vast empire and coexistence with a huge Chinese population became pressing issues for the Mongols. As a result, various adjustments were made to reduce mutual frustrations and to promote the reconstruction of an orderly society. In conjunction with other political, social, and economic measures, these adjustments were reflected concretely in Chinese legal developments during the Yiian. If law is an influence upon many forces in a society, it also responds to the society which creates it. Thus, Chinese legal institutions of the Yiian not only represent the experiences of both the Mongols and Chinese, but also illuminate the trends of changes shaped by law itself and by other forces.
The importance of legal studies for the understanding of human civilization is obvious. In discussing Chinese civilization, however, many historians often neglect, ignore, or underestimate the significance of Yiian legal institutions. Many textbooks and research works jump abruptly from the Sung to the Ming, as if the institutions of the intervening century and a half were of no importance. In some works, Yiian law is only treated briefly, on the apparent assumption that a knowledge of Yuan law is immaterial to our understanding of the Chinese legal tradition in particular and Chinese civilization in general. To be sure, there existed in the Yiian some persistent and predominant features of the Chinese legal tradition which set limits to the range of developmental possibilities and which are by and large known to modern scholars. But there were also changes within the system, and further investigation of these changes will permit us to realize the significance and variety of alternatives within the Chinese legal tradition.
Despite the urgent need to examine the Yiian institutions, to the best of my knowledge only one significant work has been written in a Western language on Chinese law of the Yiian: Paul Ratchnevsky’s Un Code des Yuan. Ratchnevsky’s work is primarily a translation and annotation of the section entitled ““Hsing-fa chih” (Treatise on Punishment and Law) in the Yiian shih [Yiian History|, and deals only briefly with other problems of the legal system. Besides, the ‘‘Hsing-fa chih”’ is basically a survey of legal institutions, and, in the strict sense, is not a code. Owing to the nature of the ““Hsingfa chih’”’ and the lack of a thorough discussion of the Yiian legal system in Ratchnevsky’s work, this study will present a reconstructed text and annotated translation of the Chih-yiian hsin-ko [Chih-yiian New Code\—the first substantial code of the Yiian—which was promulgated in 1291, but then lost for centuries. Although the character ko may not stand exactly for the word “‘code,” the text of the Chih-yiian hsin-ko does contain legal provisions which can be referred to as a code in a broad sense.
The focus of Part One of the present study is on the development of Chinese codes, the penal system, and the administration of justice during the Yuan, and on whether there were significant changes from the legal systems of previous dynasties, and, if so, what they were and how they came about. Since the present work centers on Chinese legal tradition in the Yiian period, the discussion of Part One will be confined to China proper and will not cover other areas of the Mongolian empire. Part One is intended to serve as a background for Part Two, which will be concerned with the reconstruction, translation, and annotation of the Chzh-yiian hsin-ko. Hitherto, the lack of substantial Ytian legal studies has created a big gap between Sung scholarship and Ming scholarship which has made it impossible for historians to obtain a clear picture of the transformation of Chinese civilization. It is hoped that this study will shed light on some issues concerning the state and society of the Yiian dynasty.
This work is based on my Ph.D. thesis which was written under the guidance of Professor Francis W. Cleaves, whose advice and encouragement were crucial. I would also like to thank Professors Jerome A. Cohen, Benjamin I. Schwartz, and Yu Ying-shih for their support and guidance on specific questions. I am grateful for the kindness of Dr. Glen W. Baxter and for the generous financial support of the Harvard-Yenching Institute and the Harvard Law School. I found my years (1973-1975) as an S.J.D. candidate at the Harvard Law School and Research Scholar at its East Asian Legal Studies under the directorship of Professor Jerome A. Cohen most helpful to my legal training. I am also indebted to Professor Samuel E. Thorne for introducing me to the scholarship of English legal history which has helped me understand Chinese legal tradition through comparative perspectives.
This study has benefited from earlier works in the Yiian field by Professors Abe Takeo, Ch’en Yiian, Iwamura Shinobu, Miyazaki Ichisada, and Niida Noboru. Professor Frederick Mote and other participants of the Yiian Workshop which took place at Princeton University in 1975 under the auspices of the American Council of Learned Societies kindly gave me some suggestions. I am also grateful for the support and encouragement given by Professors Herbert Franke, John Langlois, and other members of the Yiian Conference which was sponsored by the American Council of Learned Societies and held in York, Maine in 1976. As a member of the School of Oriental and African Studies of the University of London, I have benefited from intellectual stimulation from my colleagues there. This study was facilitated by the excellent collection of the Harvard-Yenching Library, and I must thank Mr. George Potter for his kind assistance. Similarly, I was privileged to have access to the collection of the Jimbun Kagaku Kenkyujo (Research Institute for Humanistic Studies) of Kyoto University during my year (1971-1972) in Japan as a Harvard Travelling Fellow.
Professors Hok-lam Chan and Herbert Franke have given me helpful comments. Also, I am grateful to Mr. Sanford G. Thatcher of the Princeton University Press for his kindness in arranging the publication of this study.
My brother, Peter, and my friend, Professor Don C. Price, inspired me to pursue graduate studies at Harvard University, and I wish to acknowledge their constant advice and help. I am also obliged to my parents, wife, and son for giving me strength and affection.
Harvard Law School Paul Heng-chao Ch’ en Cambridge, Massachusetts Summer 1977
INTRODUCTION
The developments in Chinese history during the thirteenth and fourteenth centuries involved great changes in political thought, intellectual trends, economic activities, and institutional systems. While this period has often been characterized as the ‘““Sung-Yiian-Ming transition” and considered a formative era of modern Chinese civilization, it has not been entirely clear to historians why and how these changes took place at this particular time. Although modern scholarship has tried to explore various aspects of this special period, and to give a satisfactory account for the transformation of Chinese civilization, the effort has encountered great difficulties, mainly because of the unfamiliarity with the innovating role played by the Yuan dynasty (1271-1368).
Among the changes that occurred during the Yiian dynasty, the evolution of its legal tradition is especially striking. While the Yiian dynasty inevitably followed the major historical patterns set by the preceding ones, the Mongolian experiences in China brought new elements into the legal order of the Yiian. The Mongolian rulers, with the participation of the Chinese officials, influenced the course of Chinese law either by hastening the pace of changes which had occurred earlier in the Sung dynasty or by introducing completely novel concepts and institutions to China. Many innovations of the Yiian naturally stood as “‘important exceptions”’ to the general patterns of the Chinese legal tradition, and some of them even became standard features in the legal systems of later dynasties.
On the whole, the Yiian innovations were the result of the impact of Mongolian customary law on existing legal institutions and internal changes in these institutions themselves. Mongolian customary law was an important source of law in China during the initial period of the Mongolian conquest, but, as exemplified by the fate of the jasay, its role became very limited by the end of the thirteenth century. The jasay was a collection of rules and instructions given by Cinggis Qan in response to the needs of specific circumstances and was later formally promulgated in 1229. Although it was not a systematically organized legal work, the jasay provided the Mongolian ruling clan with guidelines for the administration of government, especially in matters of military discipline and organization.! The jasay did not apply universally as a code to all tribes under the Mongolian domination, but, by virtue of its authoritative character, it did serve as a principal legal source in China for the period immediately following the fall of the Sung dynasty. Because Chinese society soon proved too complicated for Mongolian customary law to deal with, the application of the jasay to Chinese cases diminished gradually, and by the end of the thirteenth century, the jasay as a source of law appeared to be of a minimal importance.
As Mongolian customary law began to lose its dominant role in China, efforts were made to establish various Chinese legal codes for the administration of justice and to incorporate Mongolian legal principles into these codes. In addition, the T’ai-ho li [T’ai-ho Statutes} of the Chin dynasty (1115-1234) continued to function during the transitional period until a permanent Yiian code was promulgated. In 1271, upon the advice of Liu Ping-chung (1216-1274), Qubilai Qayan proclaimed the Yiian as the name of the reigning dynasty—the concept of the yiian being derived from the I Ching [Book of Changes}, referring to the “‘primal force of the Creative” or “origin of the Universe.”’? The establishment of this national title not only supplied the Mongolian rulers with a new foundation of legitimation but also marked the beginning of afresh era in China.? As an effective political gesture, along with other practical considerations, the validity of the T’ai-ho lii was terminated on the same day that the title of the reigning dynasty was announced. Consequently, the anxiety of the Chinese officials about the lack of a permanent Yiian code was further increased by the abolition of such a standard code as the T’ar-ho li.
The frustration of the Chinese officials who longed for a unified Ytian code was understandably acute, especially in view of the fact that China had had legal codes for centuries and taken pride in her refined judicial system. The codification movement in China started even before the Imperial Period, and as early as 400 B.c. a code known as the Fa Ching [Cannon of Law] had been promulgated. The codification effort continued throughout various dynasties, resulting in the establishment of the T’ang Code in 653. The T’ang Code achieved its final form in 737 and represented an example of excellent legal draftsmanship. The articles of the T’ang Code were grouped under twelve sections and covered most legal instances. With the exception of the Yiian experiences, the content and the structure of the T’ang Code became by and large standardized in the codifications of subsequent dynasties. For example, the Sung dynasty (g60-1271) primarily followed the T’ang Code to establish its own Hsing T’ung [Unified Code] in 963. Similarly, the Tai-ho lii (1201) of the Chin dynasty was also largely a copy of the T°ang Code. Although the desires of the Yiian officials for a national code modeled on the T’ang Code were partially met by the temporary adoption of the T’ai-ho li, the Yiian dynasty failed to promulgate a national code along the lines of the T’ang Code, thus making the Yiian codification experiences very different from those of other dynasties.
With the abolition of the T’ai-ho lii in 1271, Chinese officials began to consider formats of codification other than an un-imaginative reproduction of the T’ang Code. As a result, codes having statutes of a more casuistic nature and a less unified theme than those of the T’ang Code were from time to time established during the Yiian period. Collections of legal cases with decisions were also compiled and made readily available to the Yiian officials so as to provide them with proper judicial guidance. By using various legal codes as a substitute for a national code of the T°’ang Code type, the Yiian dynasty, with the benefit of numerous legal collections for extensive consultation, managed to reach a compromise between the traditional Chinese reliance on codification and the flexibility of drawing legal authority from precedents. In this respect, the Yiian legal development also departed from the regular practice of previous dynasties.
Although Mongolian customary law gradually became insignificant as a source for law, many Mongolian legal institutions and concepts were adopted into the Chinese codes of the Yiian and became an intergrated part of a new legal order. This trend was clearly reflected in the changes that occurred in the Yiian penal system. The traditional five principal punishments (death, life exile, penal servitude, beating with a heavy stick, and beating with a small stick) underwent modifications in theory and in practice during the Yiian. In addition, for certain offenses, new types of financial and physical punishments were imposed on wrongdoers. As some of these supplemental punishments originated in Mongolian customary law, Mongolian legal institutions and concepts were in substance observed in Chinese law. In short, the Yuan dynasty, although following the traditional patterns of the Chinese legal system, nonetheless made adjustments and innovations in order to strike a balance between the forces of Chinese tradition, Mongolian practice, and new social conditions.
Similarly, with regard to the administration of justice, various steps were taken in the Yuan to reorganize judicial structure and procedure. New regulations were also established to govern legal disputes involving people of different ethnic backgrounds, professional groups, and religious attachments, thus reducing the possible conflict of legal principles and custom. There was an increase in legal professionalism as well during the Yiian period in the sense of dissemination of legal knowledge. Through popular books and education, this occurred both on the bureaucratic level and on the level of the general public. These innovations not only inserted new elements into the Yiian legal system to cushion the clash between Mongolian customary law and Chinese legal principles, but also in the long run had an influence on the law-making processes of the later dynasties.
As most of the Yiian legal codes have not survived, it is extremely difficult to demonstrate in full the significance of the Yiian legal innovations. In studying the historical foundations of English law, S. F. C. Milsom once remarked: ‘‘Legal history is not unlike that children’s game in which you draw lines between numbered dots, and suddenly from the jumble a picture emerges: but our dots are not numbered.’’* Indeed, our dots for drawing a picture of Yiian legal history are not only unnumbered but are also too scattered. Thus, the reconstruction of the Chih-yiian hsin-ko [Chih-yiian New Code| in this study is meant to identify a few more of these dots and thereby throw light on the nature of Yiian legal institutions and offer a textual criticism of Yiian legal compilations.
The Chih-yiian hsin-ko was drafted by Ho Jung-tsu and promulgated in 1291 as the first substantial code of the Yuan dynasty. It later became one of the most important legal texts and laid the foundation for the compilations of the Ta Yiian ung-chih [Comprehensive Institutions of the Great Yiian] and the Yiian tien-chang [Institutions of the Yiian Dynasty]. More significantly, fragments of the Chih-yiian hsin-ko and the Ta Yiian ung-chih, along with the complete text of the Yiian teen-chang, are the only legal documents which are still available to modern scholars. Fragments of the Ta Yiian tung-chih were preserved and printed in 1930 in a text entitled T’ung-chih tiao-ko [Code of Comprehensive Institutions], but at that time the full text of the Chih-ytian hsin-ko was still lost.
The original text of the Chih-ytian hsin-ko had become unavailable by the time of Su T’ien-chiieh (1294-1352). When it was reprinted under the order of the Chung-shu-sheng (Secretarial Council), Su T’ien-chiieh wrote a preface to the new text in which he praised the ability of Ho Jung-tsu and admired the conciseness of the code.® Su further pointed out that the code had succeeded in covering all current legal instances by expanding its legal principles beyond a text having no more than several thousand characters. This remark might be an exaggeration, but it nevertheless sheds light on the nature and structure of the code. Aside from Su’s preface, unfortunately, this reprint suffered the same fate as its original text and has not survived. The code as reconstructed and presented in Part Two of this study comes from fragments in various Chinese sources. It is hoped that the reconstructed text with the 96 fragments is not far from the original framework of the code.
Throughout this study, owing to the limitations of space, the focus is directed on the changing aspects of the Yiian legal order, thus bypassing those general features which were common to the Ytian and other dynasties.® In singling out the innovating and transforming character of the Yiian legal system, this study also hopes to provoke more thought on the role the Mongols played in shaping Chinese history. There has been a common notion among some scholars that the Mongolian contribution to Chinese civilization in general and Chinese legal tradition in particular was extremely limited. For instance, Professors Bodde and Morris have suggested that the Yitian only made some trifling changes in law from the T’ang tradition. In citing V. A. Riasanovsky, they claimed: ‘‘Aithough the Mongols, in view of their very different cultural background, might have been expected to make sweeping changes in Chinese law when they ruled Yiian China, their major ‘contribution’ seems actually to have been that of using numbers ending in sevens instead of tens when specifying the number of blows of beating or other punishments (7, 17, and so on, in place of 10, 20, 30).”’’ To be sure, the assessment of the scope and significance of a “‘contribution” often depends on the measure of one’s yardstick. In all fairness to the Mongols and their Chinese partners, however, it is obvious that the Yiian contribution to Chinese legal tradition was greater and far more significant than just “that of using numbers ending in sevens” in punishments.
Some of the points made in this study may seem “unconventional.” For example, the portrayal of the Yiian leniency in punishment as the “bright” side of the story may admittedly seem too rosy, especially considering the fact that there were brutal aspects of the Mongolian domination in China.® But the lenient penal system does not necessarily imply “civilized” court politics, nor a “restrained” political attitude in the power struggles between the Mongolian rulers and their Chinese subjects. In this sense, this study, by examining the Yiian legal order, is meant to supplement other earlier works with a different scholarly approach so as to help contribute to a correct interpretation of the ““Sung-Yiian-Ming transition” of Chinese civilization. In any event, because more unnumbered dots in Ytian legal history must still be collected and analyzed, the picture that emerges from the dots drawn in the present study is incomplete and personal.
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