a note on civil cases in early china

A Note on Civil Cases in Early ChinaAuthor(s): Zhang ZhaoyangSource: Journal of the American Oriental Society, Vol. 128, No. 1 (Jan. - Mar., 2008), pp. 121-130Published by: American Oriental SocietyStable URL: http://www.jstor.org/stable/25608311 .

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A Note on Civil Cases in Early China

Zhang Zhaoyang

University of California, Berkeley

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 (1927-2003) cites approvingly the judgment of Tanaka Kaoru ffl^H, who characterized the unique legal system of China as the Ming system, which divided the laws into two types: the Iii concerning the punishment of criminals and the ling corre

sponding to administrative laws.1 Neither Oba nor Tanaka seriously considered the possi bility 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 lan

guage. That does not mean that there was no such concept, however. In fact, in the second

century a.D., Zheng Xuan's (127-200) commentaries to the Zhouli Jf (ca. 400 10 b.c.) state that song |&, when used as a legal term, referred to what we would now call civil cases, in contrast to yu criminal cases. Specifically, the "Dasitu" ^ n]U section of the "Diguan" it?Hf chapter says: "For all the people who do not follow the moral teach

ings, they are yu and song; [the officials] hear the yu and song together with local overseers to decide these cases" J^K^!gSMMtt&# , JTOftf?^IIWlf?. Zheng Xuan comments: "To try a crime is called yu, while disputes over property are called song" #H Bi*l, #MBt&.3 In the "Dasikou" section of the "Qiuguan" chapter, Zheng's commentary on lines about "using two visits to court to prevent song among the people"

ffitS^Kt? and "using the submission of two plaints to prevent yu among the people" ?X ffi^JS^KJtt says the following: "Song means to sue each other over property" tfiit j^IM ?ffl^"# and "yu means to charge another with crimes" i^fft@^j^P^#.4 According to Zheng Xuan, there was thus a clear distinction in the legal system between cases over

1. Shin Kan hoseishi no kenky? ̂Hffi$!j?<?W5g (Tokyo: Sobonsha, 1982), 5-9. 2. The Cambridge History of China, vol. 1: The Ch'in and Han Empires, 221 BC-AD 220 (Cambridge: Cam

bridge Univ. Press, 1986), 525.

3. Zhouli zhushu Mf?&M (Shisanjing zhushu), 10.70. 4. Ibid., 34.232.

Journal of the American Oriental Society 128.1 (2008) 121



122 Journal of the American Oriental Society 128.1 (2008)

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" JEW chapter of Zhouli which says, "If there are song over horses, [the official] will hear them" ̂WMISMll^L To this Zheng explains, "Song [here] refers to people breaking their words in buying and selling [horses]" |&||mH^ siffiji.5

Zheng Xuan's interpretation did not win unanimous acceptance. For instance, the philol ogist Huang Sheng ilr^; (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 head

strong here in making such a claim" , , MMWJC , MmM%sZ_n&.6 Sun Yirang j^lpg? (1848-1908) also disagreed with Zheng in his edition of Zhouli zhengyi

citing Huang Du's ff ft; (1138-1213) words: "Minor cases are called song, while

major cases are called yu" /hHi?^SlIt Yu and song in Huang's view differ only in their

degree of seriousness. In 1996 the historian Ge Yinghui JSHII' challenged Zheng Xuan on

the basis of archaeological materials. By analyzing the uses of song and yu in the legal documents in the "Piyu" JEW, section of the Baoshan ^[?1 strips,7 Ge argued that the dis tinction 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 docu ments 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. In

stead, 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 t^t?fiT and Momiyama Akira [1| $3 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 de

noted civil litigation, just as Zheng Xuan said.9 In Xu's survey of the term song in trans

mitted texts, such as Shiji jfej? (compiled 104-87 b.c.) and Hanshu 3t? (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 ?for instance, a case where one Hou Sujun sought to redeem debts

from a certain Kou En gLU and a case where a man called Jiao Yong M^K caused a horse

5. Ibid., 30.204.

6. Zigu Yifu he'an ^t?iiifif (Beijing: Zhonghua shuju, 1984), 161-62. Huang Sheng lived in the seven

teenth century. The Zigu and Yifu were originally separate works, but were combined during the Daoguang period

(1821-50). 7. The Baoshan strips were excavated from Tomb No. 2 at Jingmen ̂ JH, Hubei, in 1987, comprising 278 strips

from the Chu state dating no later than 316 B.c. These finds were first reported in Hubei Jingsha tielu kaogu dui

MitMl&W&^^W, "Baoshan erhaomu zhujian gaishu" ^UlH^?tj ffiftS^ Wenwu 1988.5. The entire set of

strips was published in Hubei Jingsha tielu kaogu dui, ed., Baoshan Chu jian ^[ilUffff (Beijing: Wenwu chubanshe,

1991). 8. Ge Yinghui, "Baoshan Chu jian zhi yu wenshu yanjiu" ^li|^ffi?pMit#^F^, Nanfang wenwu ^7i~$CM

1996.2: 85-91.

9. Xu Shihong, "Handai minshi susong chengxu kaoshu" MW^MW^WM.^^^ Zhengfa luntan lE&fi?E

2001.6: 122-30.



Zhang: A Note on Civil Cases in Early China 123

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 be lieves 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 to the locality of the accused to convey the accused to the magistrate's court. Then the magistrate and his assis tants would question the accused, applying torture if needed to secure a confession. Then the

magistrate and his officers would determine the proper punishment for the accused, taking into account precedents and other factors. However, with song, even when a lawsuit was

brought against the accused to the county magistrate,12 the magistrate's court (xianting f| JM) would refer the case downward by sending a plaint (zhuang to the district (xiang M)

where the accused lived. There the bailiff of the district (xiang sefu MmÔ?an officer who had no authority in criminal proceedings?would question the accused, take down a

statement, and submit a report to the magistrate's court. From this it seems possible that the

atmosphere of a civil trial was not as intimidating as that of a criminal trial.13 Momiyama argues that even though the classics provide no evidence to support Zheng Xuan's distinction between yu and song, the distinction can be discerned from the references to yu and song in

Qin and Han documents; moreover, there is no particular reason why the classics should refer

specifically to such procedures. In addition, Momiyama points out, Gao You jtjgf (fl. 205

12), in his commentary to the "Meng qui ji" ]?fjÊ section of Liishi Chunqiu (compiled ca. 239 B.c.), held the same view as Zheng Xuan regarding the distinction be tween song and yu.14 However, unlike Xu who traced song as civil litigation back to the Zhou period, Momiyama avers that the distinction between yu and song made by Zheng Xuan reflected the Han situation, which might not correspond to that of the pre-Han period.

These debates reveal an interesting pattern: neither the pre-Han classics nor the excavated documents from Baoshan provide evidence in support of Zheng Xuan's distinction between yu and song. On the contrary, some counter-evidence can be found in the Baoshan strips, as

10. "Hou Sujun suo zhai Kou En Shi" {^M^fiftl^jiKMM, dated to a.d. 28, was excavated at Juyan in 1974.

Consisting of thirty-six strips, it describes how a xiang sefu named Gong ^ summoned a civilian named Kou En, so that he might investigate the debt he owed to a military officer named Li. First published in Wenwu 1978.1, it was later reprinted in Juyan xin jian F^MMrM (Beijing: Zhonghua shuju, 1994). "Jiao Yong zhi ma pi si an"

UkMiM^tM, dated to a.d. 27, was also excavated at Juyan. It consists of fifteen strips that discuss whether the mili

tary officer Jiao Yong should compensate another military officer on the death of the latter's horse. See Juyan xin

jian, 216.

11. Momiyama Akira, Ch?goku kodai sosh? seido no kenky? ^Ml^{Xtfc1&Mf^<7)?f^ (Kyoto: Kyoto Daigaku gakujutsu shuppankai, 2006).

12. Ibid., 153.

13. The xiang (district) was a subordinate unity of a county. 14. On the line, "When one decides yu and song, one must be upright and fair" ̂ fMI&îE^2, Gao You

comments: "Disputes over social crimes are called yu, while disputes over property are called song" fi-fp [E? , #




Ge Yinghui has pointed out. However, in Han texts, including the Shiji and Hanshu, evi dence supporting Zheng Xuan's distinction can be found, as shown by both Xu Shihong and Momiyama Akira. This suggests that the distinction made by Zheng Xuan simply reflects the situation of his own time. One cannot, in consequence, know for certain whether the

conceptual distinction between song and yu existed in the pre-Han period, though it seems to have been known at least in the last century of Eastern Han.

Momiyama's overall argument is thus supported by the evidence. Nevertheless, he has failed to elaborate upon the important role of the district bailiff (xiang sefu) in civil litiga tion. 15 The bailiff's role is crucial to an understanding of civil cases in early China, insofar as his absence in criminal cases itself indicates an institutional difference between civil and criminal procedures.16 As Momiyama's research on the bailiff's role is confined mainly to

analysis of a single case, that of Hou Sujun, one must ask how representative that particular case is. In addition, one wants to know if the bailiff was the only authority in the district

(xiang) to handle civil cases. To understand the role of the district bailiff, we must first examine the title sefu. Accord

ing to Lao Gan (1907-2003) and ?ba Osamu, sefu was a generic title for officers

during the Han dynasty: there were many kinds of sefu working in different offices at dif ferent levels of administration. For instance, there was a sefu for treasurehouses (K? Hf ̂ ku

sefu), a sefu for passes (Iflftf^ guan sefu), etc.17 The district bailiff (xiang sefu), as Yan

Gengwang Jg^Si (1916-1996) pointed out, was an officer dispatched by the county magis trate to a particular district to represent the authorities.18 Regarding his duties, the Hanshu

states, "The [xiang] sefu's duties are to hear cases (tingsong Hi?) and to collect taxes (shou

fushui 4&i?fft) "19 If song here means civil litigation, as argued by Xu and Momiyama, the

15. A. F. P. Hulsewe did not notice the role of the district bailiff in the justice system, for he thought that the

xianling (county magistrate, prefect) was the lowest level of judicial authority. He said: "As in many other societies,

the function of judge was exercised in China by the local administrative official, and this was also the case during the two Han dynasties. For the vast majority of commoners the only judge they came into contact with was the

hsien ling or hsien chang: the prefect." See Remnants of Han Law (Leiden: Brill, 1955), 81. Hulsewe's observation

is correct for criminal cases, where the county magistrate was the lower level of judicial authority, but in civil cases

the authority was the district bailiff.

16. In trying a criminal case, the case should be sent upward to the magistrate for a trial, even if the case was

first taken by district officials. Strip 101 from Zhangjiashan specifies: "For those people who wish to accuse some

one or wish to confess their own crimes, if they are far from the magistrate's court they can report to the district

officials. The district officials should take down the accusations and submit them to the officials of the country or

the dao (the latter being the counterpart of the administrative county in the area of minority tribes). Officers of the

court can also take accusations" fg&^PA , , SWffMffiS?S , ?

fiSH'SS ?^^#11 pj"- See Zhangjiashan Han mu zhujian tfkMtilMMVtfflfi (Beijing: Wenwu chubanshe,

2006), 22-23. This regulation makes it clear that a criminal case normally would be reported directly to the magis

trate's court; hence no district officials would be involved. Under extreme situations, such as there being an overly

long distance to the magistrate's court, a case might first be reported to the district officials, who would note down

the accusations and then send the case upward to the magistrate's court for trial.

17. Lao Gan, "Cong Hanjian zhong de seful lingshi houshi he shili lun Handai junxian Ii de zhiwu he diwei"

fîl^*^0^^^Ôi^Milf-t^^^^J^?^fP%fu, Zhongyang yanjiuyuan lishi yuyan yanjiusuo jikan cfj *W^^M^S?WW^P/r55.1 (1983): 9-22; ?ba Osamu, "Kan no sefu" ?<?>SS^, in his Shin Kan hoseishi no kenky?, 479-519. Neither ?ba nor Lao realized that tingsong means to hear civil cases. Both believed the xiang

sefu to be in charge of criminal cases.

18. Yan Gengwang, Zhongguo gudai difang xingzheng zhidushi, shangbian 4JS"S"f^^fe?"fjii5C$,JJS^-hî

(Nan'gang: Zhongyang yanjiuyan lishi yuyan yanjiusuo, 1961). 19. Hanshu ?ft (Beijing: Zhonghua shuju, 1975), 19.742.




phrase tingsong must mean "to hear civil cases," as Momiyama found with the Hou Sujun case.20

Moreover, there are two other pieces of evidence from transmitted texts that show the district bailiff indeed heard civil cases. First, Yu Yu JEjjfBf (ca. 285-340) in his Kuaiji dianlu #ff J&Sf: tells us as follows:

Zheng Hong was the sefu of Lingwen xiang. Among the villagers, there was a younger brother

who borrowed money from his elder brother but never returned the money. So the sister-in-law

accused [the younger brother] to Hong of acting falsely.21

The accusation here is placed before the district bailiff, and it was he who heard the case. Second, we read in the biography of Diwu Lun HEflffl in the Hou Hanshu &WkW (comp. 445) that:

Lun later became a district bailiff. He fairly administered the taxes and labor services [among the people] and he resolved their grievances. Thus he secured their approbation.22

As a district bailiff, Diwu Lun seems to have performed two basic duties: to apportion taxes and labor services and to resolve grievances. The text does not specify what kind of

grievances Diwu Lun resolved, but if we compare the expression in the biography with that recorded in the Hanshu as noted above ("hear civil cases and collect taxes"), it is likely that the phrase "to resolve grievances" corresponds with the phrase "to hear cases."

However, the bailiff was not the only authority in a district who could handle civil

disputes. The sanlao Ei^z also seems to have had a role in resolving civil cases. Thus the stele erected to commemorate Zhao Kuan itj=[ (dated to a.d. 180) states:

nettle... , . ^Tjimtm,

The tabooed personal name of the sanlao was Kuan. . . . [The governor] who honored him with

the post of sanlao treated him as a teacher rather than as a subordinate. Thereupon he heard cases and resolved grievances, as well as instructing the younger generations in morality....

23

According to the stele, Zhao Kuan heard cases when he was a sanlao. Who were the sanlaol Derk Bodde (1909-2003) translated sanlao as "Thrice Venerable" as he argued

20. However, there are exceptions to this usage of the word song in Han texts. Wang Fu ZEf? (ca. 85-162) who was from the generation preceding that of Zheng Xuan, seems in the "Duan song" gjfg? section of his Qianfu lun $f^ti to make no distinction between yu and song, using the two terms interchangeably. According to Wang Fu, "Nowadays, even though the yu to be decided number in the tens of thousands, the legal disputes, the occurring of fights, the trials handled by district officials, and the trials handled by officials in charge of jails are of the same situation. They are all caused by a lack of honesty in people, who frequently deceived each other" ̂ ^jSSBfftS , ??

lun jian jiaozheng ^^tjmf^?lE (Beijing: Zhonghua shuju, 1985), 5.226. It appears that Wang did distinguish cases resolved by district officials from those resolved by the officials of jails. Perhaps Wang was not too familiar with legal terminology, and so was not aware of the difference between song and yu; however, he did notice the dif ference in legal practice.

21. The final clause is a bit difficult to translate. I suspect in this context the sister-in-law brought the lawsuit

against her brother-in-law in the name of her husband, as the latter may have been reluctant to sue his brother, so we

might instead translate, "the sister-in-law pretended to act on behalf of her husband sued the brother-in-law for Hong." 22. Hou Hanshu (Beijing: Zhonghua shuju, 1965), 41.1396. 23. Gao Wen g^t, Han beijishi ?flfjtp (Kaifeng: Henan daxue chubanshe, 1997), 434.




that it was an honorific title conferred on persons deemed to have a considerable number of

achievements, either scholarly or political.24 Yan Gengwang believed that the sanlao were neither clerks nor officials of the state, but were either chosen by the state or elected by the local people to act as intermediaries between the two.25

No matter how the sanlao were appointed, their role in civil cases has been overlooked

by scholars, perhaps because the Hanshu monograph on the bureaucracy says only, "The sanlao were in charge of educating and transforming the people" H^^^fb,26 without

investing the sanlao with judicial or quasi-judicial status. The term jiaohua indicates the moral authority of the, sanlao, which they employed when resolving cases. The following case shows that moral arbitration sometimes was adopted as the first step in resolving civil cases before more formal action was taken by the authorities:

Wu You was promoted to be chancellor of the Jiaodong kingdom. When there were cases among

the people, he would first order the sanlao to instruct those concerned regarding the precepts of

filial piety and fraternal love. He then personally went to their neighborhood to reconcile the

disputants. None of the clerks or common people dared to cheat him.27

No district bailiff is mentioned here. Instead, the sanlao plays an important role, in which

he instructs the people in moral conduct. Only if that fails does the chancellor, who was the

chief official in a kingdom, personally intervene.28 The chancellor's direct intervention was

clearly so unusual that it was here thought to merit notice. Normally, civil cases would be

resolved at the lower level of the district.

If, however, a dispute could not be resolved at the district level, what would happen? A

reasonable speculation is that the case would then be forwarded to a higher authority. In fact, there was a hierarchy of appeal in civil litigation from the district level all the way up to the

commandery. We know this from the following report in the Hanshu:

[Han Yanshou] inspected the counties and arrived in Gaoling. Among the people, there were two

brothers who had sued each other over land. Han Yanshou was very upset and said: "I am for

tunate to hold a position where I am to be a role model for the commandery. I have failed to

exemplify moral teachings and transform the people, and so blood relatives attack each other in

civil litigation. This not only damages customary morality, but also humiliates the worthy senior

officers, the sefu, the sanlao, and the Filially Pious and Fraternal. This is my mistake, as I am

the leader of Pingyi.291 should withdraw first." That day, Han Yanshou refused to hear any court

cases, pleading illness. Then he went to his temporary dwelling and shut himself up, so that

he might reflect upon his errors. In the whole county, no one knew what to do. The magistrate,

assistant magistrates, sefu, and sanlao all had themselves bound, awaiting punishment.30

24. Bodde, Festivals in Classical China: New Year and Other Annual Observances during the Han Dynasty

206 B.C.-A.D. 220 (Princeton: Princeton Univ. Press, 1975), 373-80.

25. Yan Gengwang, 246-51.

26. Hanshu, 19.743.

27. See the biography of Wu You in Xie Cheng's jjtf^Sc Hou Hanshu, collected in Bajia Hou Hanshu jizhu

Ai^r?ll$i& ed. Zhou Tianyou (Tianjin: Tianjin guji chubanshe, 1987), 4.113.

28. The chancellor in a kingdom held a post comparable to that of governor in a commandery; see n. 31 below.

29. Pingyi was a metropolitan area around the capital Chang'an. 30. Hanshu, 76.3213.




In this case, when brothers dispute over land, the chancellor regards it as the result of his

personal failure to educate his people. He feels he has thus shamed the county bureaucracy. What happens next is quite interesting: the county magistrate (ling), the assistant magis trates (cheng), the sanlao, and sefu, all take the ritual action of binding themselves as if

they were criminals. This suggests that they were the officials normally responsible for the resolution of civil cases. Now, the governor and magistrates were responsible for all the

judicial, political, and financial matters in their jurisdictions, so it is no surprise that they should take responsibility for civil cases.31 Of the other clerks and officers, none seem to have had this responsibility except for the district bailiff and the sanlao?2 This reminds us of two earlier cases mentioned above: the Hou Sujun case, where the county officials referred the complaint to the district bailiff and entrusted him with the responsibility to investigate the case (and perhaps judge it), and the anecdote about Wu You, who as a country magistrate, had the sanlao provide moral instruction to the people engaged in civil disputes. Taking these two cases together with that of Han Yanshou, we can piece together a hierarchy of authorities involved in civil cases: the district bailiff* and the sanlao at the district level?the assistant and county magistrate at the county level?and the governor at the commandery level or chancellor in the kingdom.

Since at the level of the district both the bailiff and the sanlao could handle civil cases, one

may ask what the difference was between the two. It seems that the sanlao may have acted as an arbitrator who tried to reconcile cases, while the bailiff acted as a judicial officer who had to question the parties, note down their statements, draw up preliminary reports, and submit those reports to the county officials. The authority of the sanlao in civil cases was perhaps due to his role as a moral leader in the district; presumably, then, his decisions would have been enforced mainly by custom and public opinion. However, the authority of the district bailiff was due to his position as legal officer: his judgments, presumably, would have the force of law. This we can see from the account in the bureaucratic monograph of the Hanshu, which specifically says that the district bailiff had a duty to hear civil cases. Moreover, as the

Qin strip Jl #984 from Liye M.W> says, "The district bailiff performs his duty according to the statutes and ordinances" Mm^iil^^/tW--33 This suggests that the district bailiff had

legal authority in the Qin dynasty. Very possibly the practice was followed in the Han as well. With what we have learned about the role of the district bailiff in civil litigation, we might

now revisit the opinion of Zheng Xuan, who claimed that song means "to dispute over

property." The Hou Hanshu tells us that Zheng Xuan was once himself a district bailiff, possibly in his first job:

Xuan was a district bailiff when he was young. When he was on leave, he returned home, where he often visited the local academies. He was not happy to be a local officer. His father was angry with him many times, but he couldn't stop him [from going to the academies].34

31. See Cambridge History of China, 1: 507-8. Each commandery was under a governor (taishou j^^f). His counterpart in a kingdom had the courtesy title of chancellor (xiang fl=|), but otherwise the same duties. These officials were responsible for all civil and military affairs within their territories, including the administration of civil and criminal laws.

32. It is clear, in this context, that sefu refers to the xiang sefu, because he is mentioned next to the district sanlao. 33. The Liye strips were excavated in 2002 by the Hunan Provincial Archaeological Institute ffl\$^jC$J^~ii

Thirty-six thousand strips were excavated in total. See "Xiangxi Liye Qindai jiandu xuanshi" ^i^M^S? ftffiJBjSff, Zhongguo lishi wenwu 2003.1: 8-26. Cf. Bu Xianqun hffi?, "Qin Han zhiji xiangli liyuan zakao: yi Liye Qin jian wei zhongxin de tanlun" ^rI^P?PM^?ll# : i^SEI^ffi^^hW^tt

Nandu xuetan (A:fctt#?r*JK) 2006.1: 2. 34. Hou Hanshu, 35.1207.




We may thus have good reason to believe that Zheng Xuan's remark on the word song, in his Zhouli commentary, was based on personal experience: presumably he must have drawn

up reports regarding property cases when he was a local bailiff. Such activity seems to have been irksome to him, however.

Now, a scrupulous reader may ask: how could Zheng Xuan in his youth, perhaps an

inexperienced teenager, conduct business such as resolving civil disputes, which require a

great deal of life experience, and if an inexperienced teenager could be a district bailiff, was the post indeed authoritative in handling civil disputes? According to Wang Liqi BE^'J

Zheng was about eighteen to twenty-first years old when he served as a district bailiff.35

Despite Zheng's young age, we should have no doubt on the authority of district bailiff in his district. Sometimes a district bailiff could even overshadow both the magistrate and governor in the district and sometimes the bailiff's opinion could affect a person's career. For instance, we read in the Hanshu:

Yuan Yan, whose byname was Jiping, was a native of Waihuang county, Chenliu commandery. He was poor but studious. He could completely understand the classics and teach others. His

personality was sincere and he did not speak much . . . Later, he was enrolled as a xiang sefu

by the staff of the magistrate, and benevolent teachings were greatly extended. People [in the

district] only knew the sefu without knowing the magistrate and governor.36

Here, Yuan Yan as a xiangsefu was such an authoritative and eminent figure in the district

that the local folks esteemed only him, not the magistrate or the governor. In another report in the Hanshu we find:

Bao Xuan, whose byname was Zidu, was a native of Gaocheng, Bohai commandery. He loved

studying and clearly understood the classics. He was impeached by the xiangsefu of his county

and hence removed from his office.37

The post was one of significant responsibility. Since it was at the bottom of the local

hierarchy, it was a channel to introduce certain elite youth into officialdom. If a young dis

trict bailiff did well in his post, he would be promoted into a higher level. For instance:

Zhu Yi, whose byname was Zhongqing, was a native of Shu county, Lujiang commandery. He

was a xiangsefu at Tong, Shu county when he was young. He was fair and kind, had the virtues

of loving and benefiting others, and he never beat or humiliated people. He cared for the elders and people who had no son or husband. He treated them with kindness, and [consequently] was

loved and respected by his subordinates and people. He was promoted to fill a vacancy on the

staff of the governor, then was recommended as "wise and good," and became an assistant super

intendent of agriculture (dasinongcheng). He was then promoted to governor of Beihai com

mandery, and later went to court serving as superintendent of agriculture due to his good

administrative record.38

35. Wang Liqi, Zheng Kangcheng nianpu i?^^c^gt (Ji'nan: Qi Lu shushe, 1983), 33.

36. Hanshu, 48.1618.

37. Ibid., 72.3086.

38. Ibid., 89.3635.




Zhu Yi's history shows the typical trajectory of a successful official in the Han dynasty. Still, we might wonder how a young district bailiff could perform such difficult duties as

resolving civil disputes. But perhaps this is not merely a question of age. As the preceding passage shows, a young bailiff could earn much respect in his district, which was a sign of his ability in enlisting the support of others. Moreover, a district bailiff (whether young or

old) would most likely have a team of experienced runners working for him. Relying on these men, local matters could be smoothly handled.39

We now might believe that Zheng Xuan's personal experience as a district bailiff could indeed give him some early insights into the legal world and especially civil cases, even

though he disliked the job. But interestingly, he later became one of the leading legal authorities in early China. As the Jinshu reports:

, mn+mm... ? , m^m. ttmwrm, imm&m^, ^mmm^. The Han dynasty inherited the Qin system. Xiao He fixed the statutes. . . . Later generations had

their own understandings and all annotated the law code differently. There were more than ten

experts who wrote "chapter and verse" (zhangju) commentaries, including Shu Sunxuan, Guo

Lingqing, Ma Rong, Zheng Xuan, and other classicists. Each master's commentary was about a

hundred thousand phrases ... the more complicated the phrases became over time, the more

difficult readers found them to be. Therefore, the Son of Heaven [Emperor Wen of the Wei] issued an edict which said that only Zheng Xuan's zhangju annotations were to be adopted, and

that one need not incorporate all the other experts' [opinions].40

According to this account, during the Han dynasty there were many different interpretive tra

ditions, which introduced great confusion into legal practice. The Wei emperor Wen (r. 220

26) decreed Zheng Xuan's interpretations to be the official interpretation. As Long Daxuan

f?y^fF has recently shown, "chapter and verse" commentaries to the law were very impor tant in the Han dynasty. As early as the first century a.D., legal commentaries made by ex

perts, such as Du Lin th# (d. 47), Guo Gong (1-94), and Chen Chong ?jgft (d. 106), were already applied in legal practice and formed three different interpretive traditions. By Zheng Xuan's time nine more traditions had arisen, including Zheng's. During the Wei, Zheng's tradition became dominant.41 Zheng Xuan's legal works have been lost for cen turies, but Long Daxuan has identified one hundred and ninety-three fragments of them in

Zheng's commentaries to the classics, the Shiji, and the Hanshu. These fragments are the most numerous of the 543 fragments of legal commentaries made by fifteen early scholars that have been discovered by Long. The establishment of Zheng Xuan's authority in the early third century gives us another reason to trust Zheng's claim about civil litigation.

The evidence, then, suggests first, that both civil litigation and arbitration, collectively called song, existed in early China and second, that civil cases were mostly solved at the level of district.42 What motivated people to engage in such civil cases? To protect one's

property and seek compensation for wrongdoing would be the obvious answer. However, Zheng Xuan's famous contemporary, the statesman Chen Shi (104-187), attributed a

39. I admit that I am speculating regarding the team of runners working for the district bailiff. There is no sur

viving documentation relating to this very low level of administration. 40. Jinshu (Beijing: Zhonghua shuju, 1974), 30.922-23. 41. Long Daxuan, "Handai l? zhangjuxue kaolun" ^iXWM^^^m (Ph.D. diss., Xi'nan zhengfa daxue |?

mmmxm, 2006). 42. Since civil cases were mostly handled at the district level, this explains why there remains so little docu

mentation of them in transmitted texts: there were too many layers for the information on civil cases to make its way up to the royal archives, which provided the major source for official histories.




more profound motive to the cases, which he believed represented a search for fair judg ment (zhi IS) through an appeal to reason (// 3).43 The biography of Chen Shi in the Hou Hanshu says that when Chen was the magistrate of Taiqiu ;fcfx county, a certain clerk was anxious about the song (civil cases), so this clerk suggested that Chen forbid all of them. Chen replied: "The song are the means to seek fair judgment i?j^^?tl. If I forbid the prac tice, how can the reasons and principles [of good conduct] ever be explained and expanded? Let there be no attempt to forbid song.44 Chen Shi's understanding of song may have been more elevated than that of the ordinary people who were involved in civil cases. But it seems clear that the ideal was to have civil cases instill notions of justice through their appeals to reason and order.

43. I shall provide detailed discussion of zhi as "fair judgment," in a forthcoming publication. Here I would

simply refer to Xunzi lu^p (313-238 b.c.) and Han Fei (ca. 280-233 b.c.). The former defined zhi in this way:

"Right is right, while wrong is wrong; that is called zhi" IIsIt! , #ff # , Bfi. See Xunzi jiaoshi ~^J~1rf?M, ed.

Wang Tianhai TEzfcM (Shanghai: Shanghai guji chubanshe, 2005), 1.50. Han Fei defined zhi as follows: "What is

called zhi means that the principle must be impartial and correct, and the heart should not be one-sided" ^/rfflilL^f ,

3?<ft&IE , 'M^mH-t?. See Han Feizi??e ^W^MM, ed. Wang Xianqian 3LjfcM (Beijing: Zhonghua shuju,

1998), 20.137.

44. Hou Hanshu, 62.2066.



a note on civil cases in early china

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