A note on civil cases in early China.

• Author: Zhaoyang, Zhang
• Position: Report

Civil cases usually involve disputes over property. They are "civil" because they seek remedies for individuals, as opposed to criminal cases that punish crimes in order to preserve the public order. Generally speaking, historians have overlooked the existence of civil litigation and arbitration in early China, tending to see law there as restricted to the criminal and the administrative. For instance, the preeminent Japanese legal historian, Oba Osamu [TEXT NOT REPRODUCIBLE IN ASCII.] (1927-2003) cites approvingly the judgment of Tanaka Kaoru [TEXT NOT REPRODUCIBLE IN ASCII.], who characterized the unique legal system of China as the luling [TEXT NOT REPRODUCIBLE IN ASCII.] system, which divided the laws into two types: the lit concerning the punishment of criminals and the ling corresponding to administrative laws. (1) Neither Oba nor Tanaka seriously considered the possibility that civil law may have existed in early China. The famous expert on Han law, A. F. P. Hulsewe (1910-1993), shared the same view, writing:

It is characteristic for the whole of traditional Chinese law as embodied in the codes that it is solely concerned with public matters, being administrative and penal. Private law, pertaining to the family and to trade and commerce other than the state monopolies, remained outside the field of regimentation by public authorities and continued to be ruled by custom and usage. (2) However, the discovery of newly excavated legal documents is changing academic views, and forcing the reexamination of transmitted materials; increasingly, it appears that civil cases were common in early China and that the legal system indeed had its civil as well as penal and administrative codes.

It is true that there was no term equivalent to "civil case" in the classical Chinese language. That does not mean that there was no such concept, however. In fact, in the second century A.D., Zheng Xuan's [TEXT NOT REPRODUCIBLE IN ASCII.] (127-200) commentaries to the Zhouli [TEXT NOT REPRODUCIBLE IN ASCII.] (ca. 400-10 B.C.) state that song [TEXT NOT REPRODUCIBLE IN ASCII.], when used as a legal term, referred to what we would now call civil cases, in contrast to yu [TEXT NOT REPRODUCIBLE IN ASCII.], criminal cases. Specifically, the "Dasitu" [TEXT NOT REPRODUCIBLE IN ASCII.] section of the "Diguan" [TEXT NOT REPRODUCIBLE IN ASCII.] chapter says: "For all the people who do not follow the moral teachings, they are yu and song; [the officials] hear the yu and song together with local overseers to decide these cases" [TEXT NOT REPRODUCIBLE IN ASCII.]. Zheng Xuan comments: "To try a crime is called yu, while disputes over property are called song" [TEXT NOT REPRODUCIBLE IN ASCII.]. (3) In the "Dasikou" [TEXT NOT REPRODUCIBLE IN ASCII.] section of the "Qiuguan" [TEXT NOT REPRODUCIBLE IN ASCII.] chapter, Zheng's commentary on lines about "using two visits to court to prevent song among the people" [TEXT NOT REPRODUCIBLE IN ASCII.] and "using the submission of two plaints to prevent yu among the people" [TEXT NOT REPRODUCIBLE IN ASCII.], says the following: "Song means to sue each other over property" [TEXT NOT REPRODUCIBLE IN ASCII.] and "yu means to charge another with crimes" [TEXT NOT REPRODUCIBLE IN ASCII.]. (4) According to Zheng Xuan, there was thus a clear distinction in the legal system between cases over property and those concerning crimes, reflected in the two different categories of song and yu. In addition, Zheng emphasizes that song pertained to civil cases, as seen in his annotation to a line in the "Xiaguan" [TEXT NOT REPRODUCIBLE IN ASCII.] chapter of Zhouli which says, "If there are song over horses, [the official] will hear them" [TEXT NOT REPRODUCIBLE IN ASCII.]. To this Zheng explains, "Song [here] refers to people breaking their words in buying and selling [horses]" [TEXT NOT REPRODUCIBLE IN ASCII.]. (5)

Zheng Xuan's interpretation did not win unanimous acceptance. For instance, the philologist Huang Sheng [TEXT NOT REPRODUCIBLE IN ASCII.] (b. 1622) bluntly rebuffed Zheng: "The classics include no clear language saying that cases over property are song and cases over crimes yu. Zheng is headstrong here in making such a claim" [TEXT NOT REPRODUCIBLE IN ASCII.]. (6) Sun Yirang [TEXT NOT REPRODUCIBLE IN ASCII.] (1848-1908) also disagreed with Zheng in his edition of Zhouli zkengyi [TEXT NOT REPRODUCIBLE IN ASCII.]. citing Huang Du's [TEXT NOT REPRODUCIBLE IN ASCII.] (1138-1213) words: "Minor cases are called song, while major cases are called [TEXT NOT REPRODUCIBLE IN ASCII.]. Yu and song in Huang's view differ only in their degree of seriousness. In 1996 the historian Ge Yinghui [TEXT NOT REPRODUCIBLE IN ASCII.] challenged Zheng Xuan on the basis of archaeological materials. By analyzing the uses of song and yu in the legal documents in the "Piyu" [TEXT NOT REPRODUCIBLE IN ASCII.] section of the Baoshan [TEXT NOT REPRODUCIBLE IN ASCII.] strips, (7) Ge argued that the distinction between the two was not over the source of the dispute, property or social crime, since this section includes both criminal cases (e.g., murder) and civil cases (e.g., disputes over land). It appears also that the terms yu and song were here used indiscriminately. Ge noted another pattern in the Baoshan materials: that the term song is used when the documents point to the litigants, while the term yu is used when the documents refer to the authority's procedures in investigating and pronouncing judgments. On this basis. Ge argued that the difference between song and yu does not correspond to civil versus criminal. Instead, the two words functioned like two sides of the same coin, depending on the viewer's perspective: a case was called song by the disputing parties, but yu by the authorities. (8)

In contrast, legal historians Xu Shihong [TEXT NOT REPRODUCIBLE IN ASCII.] and Momiyama Akira [TEXT NOT REPRODUCIBLE IN ASCII.] both accept Zheng Xuan's explanations of song and yu. Xu in 2001 argued that civil cases were common in the four centuries of the Han dynasty (206 B.C.-A.D. 220) and that song denoted civil litigation, just as Zheng Xuan said. (9) In Xu's survey of the term song in transmitted texts, such as Shiji [TEXT NOT REPRODUCIBLE IN ASCII.] (compiled 104-87 B.C.) and Hanshu [TEXT NOT REPRODUCIBLE IN ASCII.] (compiled A.D. 58-76), she found that song was mostly associated with cases overland, rent, debts, and goods. Xu found such consistency in the received texts that she argues that song always meant "civil litigation" during Zhou and Han times. Xu also attempted to reconstruct the whole procedure of Han civil litigation by analyzing the excavated documents of civil cases from juyan [TEXT NOT REPRODUCIBLE IN ASCII.]--for instance, a case where one Hou Sujun [TEXT NOT REPRODUCIBLE IN ASCII.] sought to redeem debts from a certain Kou En [TEXT NOT REPRODUCIBLE IN ASCII.] and a case where a man called Jiao Yong [TEXT NOT REPRODUCIBLE IN ASCII.] caused a horse to die. (10) Xu Shihong's arguments about song, while providing a welcome new perspective on early law, are, however, marred by two methodological problems. First, even if one believes that the Zhouli is an authentic Zhou text, Zheng Xuan's commentary on it, written during the late second century A.D., may well reflect the usage in his own time. Second, in her reconstruction of civil procedures, Xu does not show how procedures for civil litigation differed from those in criminal proceedings: did Han law treat the two matters differently?

Xu's arguments about song were refined in two aspects by Momiyama Akira in 2006. (11) First, Momiyama, by studying the Juyan case of Hou Sujun in light of contemporary criminal cases, has demonstrated that the state treated song and yu differently, insofar as with yu, the county magistrate directly heard criminal cases. After the county magistrate accepted an accusation of wrong-doing, thereby initiating a criminal investigation, the magistrate in charge of the case would send a "magistrate's officer" (lingshi [TEXT NOT REPRODUCIBLE IN ASCII.]) to the locality of the accused to convey the accused to the magistrate's court. Then the magistrate and his assistants would question the accused, applying torture if needed to secure a confession...