Abstract
It is difficult to make a breakthrough on the issue of whether the traditional Chinese judicial trial was conducted in accordance with the law in the absence of a consensus on the definition of “law” in Chinese language. Under this background, it is helpful to explain the reasoning methods of traditional Chinese justice and to clarify the connotation of traditional “legal” order by changing the research paradigm from whether the traditional Chinese judicial trial was conducted in accordance with the law to whether intellectual rationality was followed and whether there were logical reasoning and reasonable persuasion factors. Based on 27 verdicts involving the narrative of “distinguishing shi from fei” in The Analects of Court Verdicts of the Song Dynasty (Ming Gong Shu Pan Qing Ming Ji, i.e. Qing Ming Ji), it can be found that great importance was attached to “distinguishing shi from fei” in judicial judgments in the Song Dynasty to pursue truth and virtue. The judicial officials in the Song Dynasty had a clear consciousness about the division between issues of fact and issues of law, showing the epoch-making progress of China’s indigenous legal methods. Judicial officials used both internal justification and external justification to connect facts with law. When the judgment standard was relatively clear, judicial officials completed the subsumption of the legal standard into the facts through the circular interaction between the facts and the standard, drew conclusions consistent with the facts, and made the final judgment on the basis of deductive reasoning methods. When there was a dilemma of finding and verifying the judgement norms, they sought after reasonable legal interpretation and continued legal development in the binary interaction between “law” and “li” to balance the relationship among law, social ethics and the principle of the national order, thus showing consciousness of “legal principles”. Judging from the above achievements of legal methods, there were indeed profound intellectual and rational factors in the activities of fact cognition and legal reasoning in the Song Dynasty.
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Notes
- 1.
An international academic seminar was held in Kamakura, Japan from September 21st to 23rd, 1996. The theme of the meeting was “Law, Society and Culture in Late Imperial China—Dialogue between Japanese and American Researchers”. The participants were Japanese and American researchers on the legal history of the Qing Dynasty represented by Shiga Shuzo and Huang Zongzhi.
- 2.
In view of this, Zhao Jing has made a systematic reflection in his recent article “Chinese Traditional Judicial Culture in the Song Dynasty: Rethinking Japan’s Research on Qing Ming Ji”. He collected the research results of Japanese scholars on Qing Ming Ji and started his research from the definition of hearing litigation. He set three research directions: deepening the understanding of legal sources, differentiating the trial style of judicial officials and reflecting on the evaluation criteria of “litigiosity”. Due to the gap in academic information caused by the language barrier, Chinese scholars have seldom cited the research results of Japanese scholars on Qing Ming Ji for a long time. As far as this is concerned, the collection by Zhao Jing is helpful for Chinese academic circles to enhance the understanding of Japanese related achievements. However, no matter how rich and detailed the research are, it is still the core theme of the traditional judicial research in the Song Dynasty to respond to “whether traditional civil cases were tried in accordance with the law” by deepening the understanding of legal sources and exploring the nature of hearing cases. Judging from Zhao Jing’s collection, Japan’s research on the history of the Song Dynasty also failed to bridge the gap between the two arguments.
- 3.
Didang, a particular transaction form in the Song Dynasty, referred to an informal pawn in the folk. There was a significant difference between “didang” and “pawn”, and the distinction between “didang” and “pawn” was the core of the fact cognition in this case (see details below).
- 4.
According to the research of British scholar Geoffrey MacCormack, “qing” (or “renqing”) and “li” (or “qingli”) in Qing Ming Qi have both descriptive function and normative function. In other words, each of the two words contains two meanings: the fact (to be) and the value judgment (ought to be). Specifically, “qing” sometimes refers to “fact” and sometimes refers to “feeling”. “Renqing” can generalize “the realistic situation prevailing in the society”, and more often refers to “behaviors that conform to the corresponding ethics requirements”. “Li” is sometimes used to describe the “daoli” for the existence of things, and sometimes refers to “principles”, “ethical principles” or “standards”.
- 5.
Wu is the family name; Ge is the given name; Shuzhai is the pseudonym. There are similar cases in contexts hereinafter.
- 6.
Daoli, also li, refers to some principles beyond phenomena, and also refers to the theory of moral, political and legal order. See below for details.
- 7.
The pawn transaction was different from the didang transaction in form although the real estate was allowed to be redeemed before the date required for the pawn transaction. The formal pawn transaction of farmland and houses must meet the requirements of leaving the property and paying taxes, while the didang was only a non-formal loan mortgage between private sectors. One of the starting points of the mortgage was tax avoidance, thus the mortgagor would not leave the property immediately. Therefore, the didang was an informal form of the pawn.
- 8.
“Converting the pawnage to repay the loan” was a term in the financial field in the Song Dynasty.
- 9.
According to the category of “Property of the Family without Male Descendants” in the General Penal Law in the Song Dynasty: Law of Household Register and Marriage, “[Provision] orders for the funeral: For those households without male descendants, all the myrmidon, maidservant, slaves, shops, houses, and their wealth will be sold by closed relatives. Apart from the money spent on the funeral and graveyard, all the wealth will be given to the dead householder’s daughters. If the dead doesn’t have a daughter, the wealth will be given to the closed relatives. If the dead doesn’t have any relative, the government will verify the wealth. If the dead householder made a will to deal with the heritage. The heritage will be dealt with in accordance with the will once it is verified.”
- 10.
According to the article of “Ten Evils” in the General Penal Law in the Song Dynasty: General Provisions, the seventh evil is being unfilial. The cases are as follows: Accusations and curses against grandparents and parents; leaving hometown and dividing the property before the death of grandparents and parents when one cannot serve their grandparents and parents; Removing mourning clothes and marrying or pursuing pleasure within three years of the death of grandparents and parents; Concealing the death of grandparents and parents, and refusing to hold the funeral; Pretending grandparents or parents are dead.
- 11.
According to the article of “Compulsory Divorce and Divorce by Agreements” in the General Penal Law in the Song Dynasty: Law of Household Register and Marriage, “[Explanation and Amendment]: The compulsory divorce occurs when a woman’s husband beats her grandparents and parents or kills her maternal grandparents, uncles’ grandparents, brothers, aunts and sisters; when one of the couple’s paternal grandparents, parents, maternal grandparents, uncles’ grandparents, brother, aunts, or sisters kills the other’s; when the woman kills her husband’s maternal grandparents, uncles’ grandparents, brothers, aunts, sisters, or has an affair with the husband’s father, brothers, uncles, cousins, nephews, and thus intends to kill or hurt the husband. The divorce will be compulsorily conducted even though the crime could have been pardoned”. The article of “Compulsory Divorce and Divorce by Agreements” also reads: “All those who were sentenced to compulsory divorce must be divorced, and offenders will be sentenced to prison for one year. [Explanation]: Compulsory divorce should be conducted only when the judicial official makes the decision. Compulsory divorce is not necessary if there is no official decision.” According to the article of “Illegal Marriage” in the General Penal Law in the Song Dynasty: Law of Household Register and Marriage, people who marry illegally should be divorced and correct their action in accordance with the legal provision, even though they would be exempted from punishment.
- 12.
“Immorality” refers to two legal provisions in the sentence of “the state official made the decision to punish the murder’s wife for being related to the murder who had committed a monstrous crime”. One is “immorality” in the “Ten Evils” of the General Penal Law in the Song Dynasty. The other is “killing three people of a family or dismembering the body” in the General Penal Law in the Song Dynasty: Law on Stealing. According to the “Ten Evils” in the General Penal Law in the Song Dynasty: General Provisions, “The Fifth evil is immorality. Those who kill three people of a family or dismember the body will be sentenced to death, and his wife and children will be exiled to a place 2000 li away.”
- 13.
According to records in Dream Pool Essays: “Recently, each judicial official of Xingzhou and Shouzhou made a false decision. The two decisions were rejected by the judge of criminal affairs. In Shouzhou, one killed his wife’s father and brothers. The state official made the decision to punish the murder’s wife for being related to the murder who had committed a monstrous crime. The judge of criminal affairs disagreed, saying: ‘A man who hit his wife’s parents could be sentenced to compulsory divorce from his wife, not to mention the man who murdered his wife’s parents and brothers. The woman should not be punished for being related to the murder.’ A case of theft and homicide occurred in Xingzhou. A couple died instantly and their only son died the next day. All properties of this family were assigned to the married daughter. The judge of criminal affairs disagreed, saying: “The son of the couple was still alive when the couple were dying. Therefore, the property belonged to the son. Since the daughters were married, they could inherit the property.” These two officials made similar mistakes, but one of them made false decisions for living people, the other made false decisions for the dead.”
- 14.
According to Volume II of Mencius: Li Lou: “Mencius said, ‘You can take it, and you can refuse to take it, but taking it hurts honesty. You can give it away, while you can refuse to give it away, and giving it away hurts your interests. You can die, while you can refuse to die, and going to die hurts the courage.’” The comparison and contrast of “can do” and “can refuse to do” is to explain that whether you can do something or not depends on whether the behavior is necessary or not and whether it conforms to rites and righteousness. Fan Yingling was just demonstrating that “daughters inheriting the property” conforms to righteousness.
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Chen, J., Wang, X. (2021). On Fact Cognition and Legal Reasoning in Song Dynasty Justice from the Perspective of Intellectual Rationality. In: Zhang, B., Man, T.Y., Lin, J. (eds) A Dialogue Between Law and History. Springer, Singapore. https://doi.org/10.1007/978-981-15-9685-8_14
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