06 December 2012


'Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments)' by Norman P. Ho in 22(1) Pacific Rim Law &a Policy Journal (2013) 48-110 comments that
Most scholarship on Chinese legal philosophy has neglected the study of Confucian jurisprudence in practice. As a result of this incomplete portrayal, scholars predominantly view the premodern Chinese Confucian legal tradition as lacking a rule of law system, which has led to blaming Confucianism for much of China’s modern and historical rule of law problems. This article seeks to complicate this view by examining Confucian jurisprudence in practice: specifically, the development of pre-Tang dynasty panwen (written legal judgments). Through analysis of specific panwen from various Chinese primary sources — many of which have never been translated into English — this article will show that even in Chinese antiquity the legal system was not solely marked by codification or the lack of the rule of law, but was far more complex and diverse than most scholars have portrayed. For example, elements of case law played an important role in Chinese legal history. Indeed, it is an especially good time to build our understanding of the use of cases and the role of panwen, in China’s legal past given the Supreme People’s Court’s recent emphasis on the role of case law in contemporary Chinese jurisprudence. 
Ho concludes -
From the first ancient panwen in the Western Zhou to the sixth century A.D. panwen from the Wei period, we see a continuing line of development of the panwen genre. As panwen developed, they became more sophisticated and complex in both form and substance. Pre-Han dynasty panwen were frequently first oral panwen which were later recorded. In the Han, however, authors such as Dong Zhongshu began to immediately write down their judgments and consciously label them as pan. 
In terms of legal reasoning, panwen throughout the pre-Tang development years drew on a variety of sources of law—history, general principles in ancient authoritative texts such as the Spring and Autumn Annals, and even natural law norms. Rules of law were announced and facts were applied to law both with growing sophistication and specificity, from simple juxtaposition in earlier panwen, to a desire to precisely match (even to the point of a very clear, character-to-character language analysis by the judges, such as in Shuxiang’s judgment of Yang Shefu and Sima Shuo’s panwen on Qing Zheng) the alleged criminal actions and the legal standards. A growing respect of precedent can also be seen as reflected first in Dong Zhongshu’s panwen, and later throughout the Han-Tang transition period of Chinese history. Panwen’s linguistic form also steadily developed from freer forms of prose, to language that utilized parallel construction and parallel sentences. Hypothetical panwen also emerged in the Han as a way for officials to create precedents and also to think through difficult cases. Finally, panwen throughout the entire pre-Tang period were steadily utilized to deal with more and more issues and disputes in society—from crime (theft, murder, and the like), to family issues (marriage), ritual propriety, ancestral sacrifices and offerings, military affairs, animal criminals (such as Tong Hui’s tiger case) and even to (as we saw in the Han-Tang transition) more abstract debates over legislative policy. This is a testament to the growing pervasiveness of panwen in Chinese society, and the importance premodern Chinese government placed on law and legal reasoning to solve a variety of social and administrative problems (again, countering the stereotypical narrative of premodern China as a society quite unconcerned with law). Of course, not all panwen we have examined in this article are models for good, reliable, and sound legal reasoning (such as Confucius’s judgment on Shaozheng Mao). We cannot possibly expect them all to be. But all of them, I believe, fundamentally show an honest attempt on the part of the officials involved to engage with the law and legal reasoning even during as early a time as pre-Tang China. Panwen was influenced by, and in turn influenced, the path of Chinese legal historical development. The growing sophistication of panwen in form, substance, and also its steady increase in influence would eventually culminate in the Tang dynasty, where panwen would be institutionalized in the civil service examinations (and thus impact the lives of many men preparing for government service), written up in formal parallel prose form, and utilized for taking care of even a broader range of social problems. 
Last, through studying Chinese legal history, we can better situate current developments in Chinese law–such as the Supreme People’s Court’s Guiding Cases–in historical context and at the very least, understand that they are not necessarily new or revolutionary ideas to penetrate Chinese jurisprudence. Rather, such ideas surrounding case law development have been a fundamental part of Chinese historical jurisprudence.