Case Precedent in Qing China: Rethinking Traditional Case Law CASE PRECEDENT IN QING CHINA: RETHINKING TRADITIONAL CASE LAW ZHIQIANG WANG* I. INTRODUCTION .......................................................................... 323 II. COLLECTIONS OF QING DYNASTY PENAL PRECEDENTS ............................................................................. 325 III. METHODOLOGIES IN LEGAL REASONING BY REFERENCE TO PRECEDENT ............................................... 334 IV. INSTITUTIONAL CONTEXT OF PRECEDENTS .................. 340 V. CONCLUSION .............................................................................. 343 I. INTRODUCTION As part of the current effort to promote legal reform in China, the Chinese academic community has turned its attention to the function of case rulings and the role of judges. Over the past decade, members of domestic academia have discussed the implications of establishing a case law system in China.1 Under the current legal model, while decided cases play an important role in daily judicial administration as persuasive authority-especially those pronouncements by such higher courts as the Supreme People's Court-these cases have yet to be recognized formally as a source of law. Inspired by this topic of practical concern, a number of Chinese legal historians have engaged in fierce debates about the nature of ancient China's case law system. Some historians have argued that imperial * Professor of law and legal history, Fudan University Law School; LL.M. candidate (Yale), LL.B. (1993, Fudan), LL.M. (1996, Fudan); Ph.D. (1998, Peking University). This research was funded by Columbia Law School's R. Randle Edwards Fellowship for Visiting Chinese Law Scholars, the Chinese National Planning Office of Philosophy and Social Science (Project 05CFX003), and the Chinese Ministry of Justice (Project 04SFB2008). I especially want to thank Professor Randle Edwards, not only because, as a fellow in his name, I had the opportunity to visit Columbia Law School and finish this paper, but also because, as a trailblazing researcher on this topic, he offered inspiring comments and advice on this paper. ISee t4H, P118-J n LLE6f t: + [M AA q , &,$1 fEB- t1f [Zhang Qi, A Comparative Study on Case Law: A Discussion of the Significance, Institutional Basis, and Operation of Chinese Case Law], LL jIf, [COMP. L.J.], No. 4, 2002, at 79 n.1. COLUMBIA JOURNAL OF ASIAN LAW [19:1 China had a long history of implementing case law and, accordingly, they have proposed a revival of that tradition in modem society.2 Others have denied the universal existence of such a system in Chinese history,3 and still others have warned against possible misunderstandings arising from garbled usage of Western terminology without further exploration and detailed comparison.4 By most conservative standards, the practice of considering earlier cases in making judicial decisions dates back to the 3rd century B.C., when the first imperial dynasty, the Qin (221 B.C. - 206 B.C.), established that the source of its law was the tingxingshi (i , practice of the tingwei, 31F, or "Chamberlains of Justice"). An undisputed example of reference to precedent in decision-making can be dated to 197 B.C. 5 In the two thousand years that followed, China witnessed a flourishing expansion of the application of precedent in judicial administration.6 2 See, e.g., _ m)Wf44 t [WU SHUCHEN ET AL., TRADITIONAL CHINESE LEGAL CULTURE] (1993); AI 8'f , A qJt- l i±f [Wu Shuchen, A Theoretical Interpretation of Legal Format in Ancient China], 1 P [SOC. SCI. IN CHINA], No. 1, 1997, at 125-39. 3 See, e.g., A004, rt [Hu4MMO _AM [Yang Shiqun, A Historical Survey on Chinese LegalFormat], q3[M±f [SOC. SCI. IN CHINA], No. 1, 2001, at 113-18. 4 See, e.g., T-1 31 [Wang Zhiqiang, Validity of Qing Case Precedent and Methodology of Reasoning During Its Application], M-L [STUD. IN L.], No. 3, 2003, at 158-60. In an early Han dynasty case, a local official was charged with the duty to escort a vassal woman to the capital. They fell in love and got married after their arrival in the capital. The official was arrested after the couple attempted to flee the capital. The law made it a crime for provincial people to enter the capital for the purpose of enticement. Some judges argued, however, that the official entered the capital for the purpose of carrying out his duty. Other judges invoked a precedent in which a woman who entered a provincial region to pursue a legitimate duty but then fled was sentenced pursuant to the law of "fugitives to a provincial region." Analogously, these judges argued that this official was subject to the law regarding enticement, notwithstanding his previous legitimate arrival. See k * Ld a. A t4 A: = V9 -tL - I [BAMBOO SLIPS FROM HAN TOMB AT ZHANGJIASHAN: TOMB NO. 247] 214-15 (2001); 4 M, *ig- Vi (i_) [Li Xueqin, An Explanation of Zouyanshu (Judgment Collection)], Ztvj [CULTURAL RELICS], No. 8, 1993, at 30. 6 Evidence of this expansion includes the use of bi (LL, analogical case) and gushi ( -, past practice) from the Han dynasty to the Tang dynasty, li (W'J, precedent) in the Song dynasty, and duanli (W , decided precedent) in the Yuan dynasty, all of which have been widely examined in recent research. See P F & T-it{ , N r LLMTf [Lii Li & Wang Kan, A Discerning Analysis of Bi in Han, Wei andJin], "W9j [STUD. IN L.], No. 4, 2000; IfbW, Aa&$i -t [Yan Xiaojun, A Discussion of Gushi in Two Han Dynasties], r [H '.iff) [J. CHINESE HIST.], No. 1, 2000; RE, 6ft&mtW*Jt [Lu Li, A Discerning Analysis of Gushi in the Han, Wei and Jin Dynasties], 8-* lfftL [STUD. IN L.], No. 6, 2002; EAt , q' Jl [Wang Kan, A Discerning Analysis of Song Dynasty Li], "W1Z [STUD. IN L.], Nos. 2 & 6, 1996; VE[4-, M [Huang Shijian, A Discerning Study of the Great Yuan General Regulations], +t1 #64!;± [SOC. SCI. IN CHINA], No. 2, 1987; ,A1AA, i"Jx ..'"' '1)* [Yin Xiaohu, On the Character and QING CHINA AND CASE LA W However, the lack of surviving pre-Qing judicial documentation makes it difficult to develop an exact picture of the role of precedents and the details of legal reasoning during pre-Qing dynasties. By contrast, the wealth of legal and social records remaining from the Qing dynasty (1644 A.D. - 1911 A.D.) facilitates tracking not only the function of precedents in daily judicial administration, but also the institutional and social context of these practices. Consequently, Qing precedents, generally referred to as cheng'an (b- , earlier cases), have been analyzed meticulously over the past two decades.7 This article advances the modem-day understanding of the case law system in the Qing dynasty by providing a partial list of existing case records from this period and by analyzing a representative sample of the ways in which Qing courts used precedent in their decisions. II. COLLECTIONS OF QING DYNASTY PENAL PRECEDENTS 8 At least forty different collections of cases from the Qing dynasty survive today. Typically, only penal cases were reported in imperial China, in sharp contrast to other countries like medieval England, where most reported cases were civil cases. Most of these reported cases in imperial China were decided at the central level, with a significant number decided by the Xingbu ( j-I-, Board of Punishments, or "BOP"). While not all surviving collections are specifically labeled as cheng'an collections, 9 if they are viewed in the same manner in which modem Influence of "Decided Precedents" in the "Great Yuan General Regulations'], '1. M, , V [J. E. CHINA INST. POL. & L.], No. 1, 1999. [Koguchi Hikota, The Role of Case Precedent in Qing Dynasty Judicial Judgments on the Basis of the Conspectus of Penal Cases], 57 -V IBM* [WASEDA L. REv.] 345, 345-78 (1982) [hereinafter Role of Case Precedent]; j, n *l , Vpff IP [ 0) f-iJ (z t It ,A 0) t' J [Koguchi Hikota, Case Precedent as a Legal Source in Criminal Judgments in Qing China], Wif-SP.W- [STUD. IN E. HIST.], No. 45, 1986, at 81-103 [hereinafter Case Precedent as a Legal Source]; GEOFFREY MACCORMACK, THE SPIRIT OF TRADITIONAL CHINESE LAW 175-86 (1996); R. Randle Edwards, The Role of Case Precedent in the Qing Judicial Process as Reflected in Appellate Rulings, in UNDERSTANDING CHINA'S LEGAL SYSTEM: ESSAYS IN HONOR OF JEROME A. COHEN 180-209 (C. Stephen Hsu ed., 2003); Wang Zhiqiang, supra note 4. 8 Throughout this article, the library location and call number of a collection will be noted if the collection is either a manuscript or a rare printed book. 9 Some collections of earlier cases, such as the well-known JFU EZYi [CONSPECTUS OF PENAL CASES] (1834) [hereinafter XAHL, with the specific volume referenced preceding the acronym, and edition, where applicable, noted in the individual citation], are not called cheng'an, while some collections using cheng'an in their titles do not actually contain earlier cases, such as It[A COMBINED PRINT OF NEW SUB-STATUTES AND CASE PRECEDENTS] (1734), a collection of legislative documents published in the twelfth year of Yongzheng's reign. Many collections using cheng 'an in their titles deal with specific administrative affairs, such as M5A [CHENG'AN OF 2005] COLUMBIA JOURNAL OF ASIAN LA W lawyers in common law jurisdictions treat law reports, then they are worthy of study for several reasons. Not only do these collections provide the means to examine actual judicial administration in imperial China, but their existence also indicates the appeal that compiling and using such collections had to contemporary judicial officials of all ranks. 10 Qing dynasty collections are in either print or manuscript format. The reign of Emperor Qianlong (1736 A.D. - 1796 A.D.) represented one of the first major periods of precedent publication. The three tables that follow index collections of case precedents from throughout the Qing dynasty. The first table (Table 1) is an itemization of extant collections of precedents issuing from the central judiciary, the second (Table 2) lists collections in manuscript form, and the third (Table 3) is a sampling of collections of precedents at the province level. The Emperor Daoguang's reign (1821 A.D. - 1850 A.D.) marked a golden age in the publication of precedents. In the fourteenth year of Daoguang's reign, the Conspectus of Penal Cases ("XAHL") distinguished itself as a monumental and comprehensive sixty-volume corpus of precedents. The numerous subsequent updated editions developed into the XAHL series, which is unparalleled in the history of Chinese precedent collection." This series included Xuzeng XAHL, XAHL Xubian, Xinzeng XAHL, and, in manuscript form, XAHL San Bian. The second half of the 1 9 h century saw further developments in case publication. While most compilations were continuations of previously established series, an exception to this trend was the publication of two collections sharing the same title: Comparative Case Precedents of Truth or Deferred Execution in the Autumn Assizes. These THE SOUTH RIVER] (1834), #J) fZ)b,-L q Y 45K A [CHENG'AN IN THE REIGN OF QIANLONG RESPECTFULLY PREPARED IN HONOR OF THE EMPRESS DOWAGER'S SEVENTIETH BIRTHDAY] (1892), and )WIA Ah [CHENG'AN OF MINERAL AFFAIRS] (1911). 9' 411aft--E [A COLLECTION OF INTERNATIONAL TREATIES AND PAST PRACTICE] (1905), a popular collection concerning international relations, also fits well into this category since most of its "cases" concerned administrative affairs regarding international relations, even though juan (tt, files) 26- 28 in 7W (Chapter B) contained some criminal and civil cases. '0 Nagamura Shigeo, focusing on the XAHL series, recorded general descriptions of some important criminal case collections from the Qing dynasty. See +f4410, IR o) MhJV: "t]K" - 5I 1, -C [Nagamura Shigeo, Criminal Cases in the Qing Dynasty: with a Focus on Conspectus of Penal Cases], in tP flJ : M*4 eY5 J 6f9 [CHINESE LEGAL HISTORY: RESEARCH ON BASIC HISTORICAL DOCUMENTS] 715-37 ( [Shiga Shfiz6 ed.], 1993). 1I XAHL, supra note 9, and infra Table 1. For more details and research about the XAHL series, see Derk Bodde & Clarence Morris, LAW IN IMPERIAL CHINA: EXEMPLIFIED BY 190 CH'ING DYNASTY CASES 144-59 (1967). See also Nagamura, supra note 10, at 718-30. [19:1 2005] QING CHINA AND CASE LAW collections recorded cases considered during the Autumn Assizes, rather than surveying general judicial practice.' 2 Table 1: Collections of Central Court Case Precedents Title Year of Current Location Notes Compilation Information A Comprehensive 1737 Peking University May be the earliest Collection of Library, call no. collection of a series of Regulations and Cases SB/390.127/1197, past regulations and ( and the Columbia cases. This collection, East Asian Library, along with the 1746 call no. 4894.5/3223 and 1759 collections in this table, are addressed in Nagamura, supra note 10, at 732-33. A Collection of Case 1746 Shanghai Library, Precedents call no. 386722-53, ( 114 " I- 4 ) xianpu ( s ordinary traditional book). Continuation of Case 1755 Peking University Supplementary edition Precedents Library, call no. to A Collection of Case SB/394.2/5322 Precedents (h-VEL). Twelve- volume set edited during the twentieth year of Qianlong's reign by Tongde (MJ#), a Judicial Commissioner of Zhejiang province. An Updated Unavailable in China Updated edition of A Comprehensive 1759 or the U.S. For Comprehensive Collection of details about this Collection of Regulations and Cases book, see Nagamura, Regulations and Cases (0M. 1 it i,-. A) supra note 10, at (ol fV) 732-33. An Old Collection of Harvard-Yenching Remanded Cases 1767 Library Rare Books (5 ) Collection, call no. T 4894.5 7352 1 The Autumn Assizes were annual trial sessions in late autumn. Final judgments were rendered in those capital cases in which the defendant was not executed after preliminary judgment. Nine high- ranking officials reviewed each case but the emperor made the final decision. The term translated here as "truth" in this case means a determination that the original sentence was correct and that execution should not be deferred. COL UMBIA JOURNAL OF ASIAN LA W Title Year of Current Location Notes Compilation Information A New Collection of Compiled in Remanded Cases 1781, updated (-AOM) in 1861. Continuation of Case Compiled National Library of Supplementary edition Precedents, Second during the China, call no. to A Collection of Case Edition final years of 12705 Precedents. Eight- (A -- i Al) Qianlong's volume set edited by Li reign, which Zhiyun (21 , ). ended officially in 1796; no precise date available. A Newly Supplemented 1793 (58h 64-volume collection; Collection of Seen Case year of remarkable in part Precedents Qianlong's because few printed or reign), collections of in some catalogs, updated in precedents from simply 1812 Jiaqing's reign (1796 WMA ). (17 ' year of A.D. - 1820 A.D.) exist Jiaqing's today. reign). Case Precedents for 1807 National Library of Single volume. Reference China, call no. (M-. *- t) 45972 Case Precedents for 1808 Peking University Four-volume set. Reference Library, call no. (M t) X/394.2/5324a Regulations and Cases 1829 Shanghai Library, Prepared for call no. 566395-98, Comparison xianpu ( q4, ordinary traditional book). New Collection of Case 1833, Sichuan Eight-volume set, Precedents including New Edition (AAM ) of Case Precedents of Aggravation and Mitigation ( and New Edition of Case Precedents of Ambiguity (AiMA ). [19:1 QING CHINA AND CASE LAW Title Year of Current Location Notes Compilation Information Case Precedents of 1834 16-volume set. Analogical Aggravation and Mitigation of BOP Conspectus of Penal 1834 60-volume set. With Cases ( MJAK- ) the four supplements ("XAHL") that followed, the XAHL series became the most impressive collection of precedents during Daoguang's reign. Parts of the series, XAHL, Xuzeng XAHL, and Xinzeng XAHL, were published in a single volume in 2004. See NVJEL-Y3 A [Three Collected Editions of Conspectus of Penal Cases] (i A [Zhu Qingqi et al. ed.], 2004). Supplement to 1840 Conspectus of Penal Cases (WOt)PUEi ) ("Xuzeng XAHL") Case Precedents of 1843 16-volume set. Analogical Aggravation and Mitigation of BOP, Updated (fitJ.i4 L L N, f New Collection of Case 1849 Peking University 24-volume set. Peking Precedents Library, call no. University Library () ) X/390.1275/5302 holds three other manuscripts with the same title with call nos. SB/394.2/5324, SB/394.2/5324.1, and SB/394.2/5324.2; the Harvard-Yenching Library has a five- volume item also sharing this title with call no. T4885 5324. A Collection of 1861 Remanded Cases (" L#) 2005] COLUMBIA JOURNAL OF ASIAN LA W [19:1 Title Year of Current Location Notes Compilation Information Comparative Case 1872 16-volume set. Precedents of Truth or Deferred Execution in the Autumn Assizes Comparative Case 1876 24-volume set. Precedents of Truth or Deferred Execution in the Autumn Assizes A Comparative 1883 Relatively small Collection of Case collection. Precedents of Truth or Deferred Execution in the Autumn Assizes Continuation of 1884 Conspectus of Penal Cases ("XAHL Xubian") Selected Essentials of 1884 Six-volume set. the Autumn Assizes (WA 0) New Supplement to 1886 Conspectus of Penal Cases (OfW] EI ) ("Xinzeng XAHL") With rare exceptions, manuscript collections were more limited in scale and did not emerge until much later in the Qing dynasty. One of the earliest such collections was the ten-volume Case Precedents for Reference, published in the early part of Daoguang's reign. The two- volume manuscript Case Precedents and the single-volume Abstract of Penal Cases may have appeared around the same time. Private manuscripts were not widely dispersed. It is difficult to determine how many private manuscripts remain in existence today because they are typically inaccessible-most are scattered in private collections around the world. However, a significant number have been recovered from this period. Most manuscripts were recorded by anonymous authors, and very few authors have been subsequently identified. The manuscripts of Chen 2005] QING CHINA AND CASE LAW Linsheng (i#,It) and Chen Fu (i), preserved among their personal writing collections, are, respectively, the four-volume Miscellaneously Recorded for Reference: Various Case Precedents Attached and the single-volume A Combined Collection of Case Precedents. The writings of Shen Jiaben (&*2i*) are another exception. Shen was a famous high- ranking legal official and scholar in the late Qing dynasty whose handwritten reports of cases were published posthumously nearly a century after his death. 13 Table 2: Collections of Case Precedents, Manuscript Form 4 Title Current Location Notes Information Case Precedents for Reference Columbia East Asian 10-volume collection. ORV*-1) Library, call no. 4894.5/5324 Case Precedents (MM) National Library of China, Two-volume collection. call no. 12158 Abstract of Penal Cases National Library of China, Single volume. (Ml -1-IMW) call no. 9600 Case Precedents in Daoguang and Shanghai Library, call no. 10-volume collection. Xianfeng's Reign T54584-93, xianshan (14hz%) (, rare traditional book) Memorials and Case Precedents of Columbia University East Four-volume collection. All Departments [of BOP] Asian Library, call no. (* hi % W ) 4724.6/5253 Criminal Case Precedents 20-volume collection. (P] ") Selected Cases Remanded by BOP Three-volume collection. (Jfil3N ) Criminal Cases of Various National Library of China, 13-volume collection. Provinces ( 'ThJ ) call no. 152028 "3 , ;z , }j5f , [SHEN JIABEN, A COLLECTION OF THE UNPUBLISHED WORKS OF SHEN JIABEN] 545-1190 (;[l]qg*j4 [Liu Hainian et al. eds.], 1996). 14 No date is available for any of these manuscripts. Researchers have been able to link most manuscripts more generally to the dates of emperors' reigns. See also *1 , 11 -1l [ZHANG WEIREN, AN ANNOTATED BIBLIOGRAPHY OF CHINESE LEGAL HISTORY] 310, 313 (1976). COL UMBIA JOURNAL OF ASIAN LAW Title Current Location Notes Information A Collection of Remanded Cases National Library of China, 30-volume collection. (O, h-1) call no. 12611 Abstract of Cases Remanded by National Library of China, Single volume. BOP (A call no. 44733 Case Precedents of Penal Category Shanghai Library, call no. Five-volume collection. (MJf4Ar) 483784-88, xianpu Regulations and Cases Prepared Shanghai Library, call no. Single volume. for Reference (VINJ .:') 556201, xianpu Case Precedents (A ) National Library of China, Five-volume collection, call no. 9775 not to be confused with the 1746 printed collection of the same name. A Collection of Case Precedents National Library, call no. Eight-volume collection. ( l- ) 47930 A Corner of Penal Cases National Library, call no. 15-volume collection. (M -IN) 44732 A Collection of Case Precedents for Shanghai Library, call no. 16-volume collection. Reference (h M ) 524325-40, xianpu Chen Linsheng (iA ), Harvard-Yenching Library, Four-volume collection. Miscellaneously Recorded for call no. FC4815 Reference: Various Case Precedents Attached Chen Fu (K-4), A Combined National Library of China, Single volume. Collection of Case Precedents call no. 9778: 5 ( CET), in Seven Combined Case Documents of BOP (MJ E--- ) Shen Jiaben (&**), The Third National Library under Even though this text is Continuation of Conspectus of Rare Books, call no. 04765 composed of 126 Penal Cases (MhJA, M ) volumes and was collected by a preeminent legal scholar and official of the late Qing dynasty, it appears to be largely unknown to the public due to its manuscript format. Consequently, it merits further scrutiny. [19:1 2005] QING CHINA AND CASE LA W In addition to the above collections reporting precedents made on the national level or by the supreme judicature, several collections of provincial-level cases are worthy of attention. Table 3: Collections of Case Precedents, Province-Level1 5 Title Current Location Notes Information Case Precedents of Hunan Published in 1820. Provincial Regulations First Edition of Case This collection has two other 40-volume collection Precedents of Guangdong manuscript versions by the published in 1832. r-IhAl ) same editor, one with two volumes and the other with thirty-eight. They are on file with the National Library of China, call nos. 53917 and 47067, respectively. Collection of Penal Cases in National Library of China, No date available. Yunnan Province call no. 12610 Hunan Cases Remanded by Peking University Library, No date available. Board (M W np4,*,) call no. X/390.117/0753 Case Precedents of Sha Shanghai Library, call no. No date available. County (4' ) 531627, xianpu Case Precedents of Song Shanghai Library, call no. No date available. County ( ") 531632, xianpu According to information gathered from the prefaces to these collections as well as conclusions drawn from general principles of editing, the editors collected the cases for a specific range of years from a variety of sources: official documents from the province in which the editor held office, reports of other provinces published in the Dichao (U #', Peking Gazette), 16 other circulated legal regulations, and, when accessible, even such BOP documents as shuotie (iA M, department memoranda). Large collections, such as the XAHL series, were typically " See 4 F[ M) , ifrl i) h'IJ [Terada Hiroaki, Provincial Regulations in the Qing Period], in CHINESE LEGAL HISTORY: RESEARCH ON BASIC HISTORICAL DOCUMENTS, supra note 10, at 690- 94. For a discussion of the use of Cheng'an in the titles of collections, see supra note 9.16 For a discussion of the nature of the Dichao, see Bodde & Morris, supra note 11, at 152-53. COLUMBIA JOURNAL OF ASIAN LA W compiled and catalogued in accordance with the order of statute articles in the Qing Code; this facilitated identification of cases under the relevant governing law. However, some collections used special classifications or alternative methods of organization to make reference more convenient. In manuscript pamphlets for individual use, however, there was no regular rule of editing or ordering cases beyond the preferences of those compiling the collections. Publications of collected precedents undoubtedly made it easier for officials and legal secretaries to access the statements, arguments, and regulations of the supreme judiciary. While much of the demand for such publications stemmed from legal bureaucrats as a group, demand among individuals was driven by those who sought the ability to refer to more recent cases as precedent. The considerable quantity and popularity of collections of precedent decisions at various levels, both in print and manuscript form, clearly support the hypothesis that "knowledge of and reliance upon precedents may well have been nationwide."' 17 III. METHODOLOGIES IN LEGAL REASONING BY REFERENCE TO PRECEDENT Reference to precedent was indispensable to legal reasoning during the Qing dynasty. Recent research has provided a vivid picture of the frequency with which precedent served as a starting point for arriving at judgments. 18 Examination of such major collections as XAHL, however, illuminates the need to deduce from decisions referring to precedent some of the abstract reasoning tools upon which judicial officials relied. Reasoning by analogy-the method articulated in the maxim in consimili casu consimile debet esse remedium (in similar cases, the remedy should be similar)-was universally accepted in Qing decision- making. For example, in an 1829 case, a man named Li Ming stole from two men unrelated to each other but in a single house. The issue in dispute was whether these two men should be treated as members of a single family. If the victims were regarded as a single family, all lost items would be counted as a whole to determine the value of the stolen goods, and hence to calculate the sentence. In the absence of such treatment, the sentence would be calculated according to the larger of the two victims' losses. After referring to applicable precedent, the court 17 Edwards, supra note 7, at 208-09 n.13. 18 A statistical approximation of reference to precedent is calculated and discussed in Case Precedent as a Legal Source, supra note 7, at 84. See also Wang, supra note 4, at 148. [19:1 QING CHINA AND CASE LA W found that the latter interpretation prevailed. The use of reasoning by direct analogy was made apparent through the court's statement that "[w]e find the facts of this case similar to the Zhejiang case in which Wang Yongxian stole property from two victims on the same boat, Hu Yiyu and Yao Miaoli. Naturally, we should handle the cases uniformly."' 19 By analogy, statutory law might serve to justify the linkage between different situations even when individual cases do not appear similar on their face. In an 1824 case, a criminal, Pan Wupi, surrendered to the authorities after acting as a lookout and accessory in two separate acts of piracy. No law directly applied to this situation. Criminals were subject to xiaoshou (A-6, decapitation and public display of the head) upon conviction of multiple instances of acting as a lookout during crimes of piracy. However, according to a sub-statute, if they surrendered, the court could mitigate the sentence to deportation to Xinjiang province in penal servitude. In an 1815 precedent, a criminal's sentence was mitigated under this sub-statute, despite his conviction of being an accessory to piracy rather than a mere lookout. The BOP used this precedent to formulate a decision in the 1824 case, and found no substantial difference between the offences in the two cases: in both, if the accused had not surrendered, he would have faced capital punishment under the sub-statute. Since no difference existed in the baseline punishment without surrender, the BOP reasoned, the surrender in the immediate case should have a similar mitigating influence upon the sentence. 20 The 1815 precedent laid the basic rule for the 1824 case. The similarity between the cases was established by mandatory legislation concerning the gravity of the two crimes. In the traditional Chinese context, analogy was not only used to find similarities in cases and, consequently, to pass a similar judgment. In some cases, the principle of qingzhong xiangming (.4KlfH )], to make a determination by comparing the gravity of issues), as originally prescribed in the general principles of the Tang Code, 21 animated Chinese reasoning by analogy. For example, in an 1821 case, a man beat his wrongdoing elder brother to death at his father's behest. According to a 19 See 17 XAHL, supra note 9, at 1-2 (4Vtn, f--' [Zhu Qingqi et al. ed.], [IMAR [Collected Book Publishing House] 1834); see also Edwards, supra note 7, at 192-93, 205, 209. 20 14 XAHL, supra note 9, at 26-27. 21 See 1 THE TANG CODE art. 50, 254-55 (Wallace Johnson trans., 1979) ("Sentencing of Crimes That Have No Formal Article: All cases involving sentencing of crimes that have no formal article bring up a heavier offense in order to make clear a lighter punishment if the punishment should be decreased. If the punishment should be increased, then a lighter offense is brought up to make clear a heavier punishment."). 2005] COLUMBIA JOURNAL OF ASIAN LA W sub-statute, murdering an elder brother could result in immediate beheading. In two precedents dated 1801 and 1810, individuals killed their wrongdoing elder brothers at the behest of their uncles. In one case, death was caused by suffocation, and in the other by a heavy blow inflicting three mortal wounds. However, both received sentences of decapitation only after the assizes. The court in the 1821 case argued that, in terms of the gravity of the crimes involved, the means used to inflict death were no more severe than in these precedents. Furthermore, committing homicide at a father's behest is less of a transgression than homicide at an uncle's behest because an uncle is a more distant relative than a father and, thus, has less moral authority over the perpetrator. Consequently, the court reasoned that the offender in the 1821 case also deserved the lesser sentence of decapitation after assize, rather than 22immediate capital execution. Similarly, if an offense was deemed punishable in an earlier case, courts used the principle of qingzhong xiangming to reason that an offense graver than its precedent should be punishable as well. In a case from 1804, a man named Han Zhaolin attempted to blackmail an individual's father by bringing a case against him. As a result, the individual committed suicide. The court referred to two similar precedents in its judgment against Han. In a 1792 case, a person committed suicide after the accused confronted him on suspicions of stealing cattle; in an 1800 case, a person committed suicide after the accused threatened him with a public statement accusing his son of theft. In both cases, the accused received a death sentence. In the 1804 case, the BOP rejected the provincial court's recommendation of a lesser sentence, reasoning that the nature of the offense in the immediate case was obviously more evil than in the precedents.23 Even though these cases were not identical, the principle of qingzhong xiangming played an important role in the court's analytical process. In some cases, punishments for the same type of crime varied with the circumstances attending the crime. In a 1788 case, Dai Caiwu was stabbed by his younger brother, seized the knife to fight back, and ultimately stabbed his brother to death. In a 1782 precedent, the accused was banished for killing a younger brother who had quarreled with their mother. In another precedent from early 1788, the accused killed his younger brother for pushing their father down. Because the victim's behavior itself warranted decapitation, the elder brother only received a hundred blows in accordance with the rule that addressed killing a capital 22 43 XAHL, supra note 9, at 10-11. 23 47 XAHL, supra note 9, at 1-2. [19:1 QING CHINA AND CASE LA W criminal without authorization. 24 The victim's behavior in Dai's case warranted a strangulation penalty. The court compared the circumstances of Dai's 1788 case with the two precedents and determined that the culpability of the victim was somewhere between that of the victims in the two precedents. Consequently, the court mitigated Dai's sentence to penal servitude.25 The judges in this case used analogy to compare the nature of the crime with its precedents and to adjust the final judgment accordingly. Judicial officials from the Qing dynasty went beyond simply using analogy to look for superficial similarities between cases. They learned to identify the particular principle of law on which a previous decision was based and, in turn, to follow that rule in their decisions. When a previous decision explicitly stated its ratio decidendi, judges could easily use the case as precedent and apply the rule to the specific facts before them.26 The BOP often issued such precedents as circulars.27 However, when the ratio decidendi was not explicitly stated, it was common practice for judges to deduce the principle behind an earlier decision and then use it to justify a ruling. In an 1818 case, Huang Sheng assisted his wife in committing suicide through strangulation to help her escape further pain and suffering from an incurable disease. The BOP referred to four homicide cases in which the accused asserted in their defense pleadings that the victims had asked to be put to death. The BOP inferred from these cases that the accused should be treated as an accessory to an alleged suicide plot, provided that reliable evidence of the victim's intent to commit suicide was available. 28 Two precedents involved husbands who had killed their wives, but the other two involved victims unrelated to their accomplices. The BOP inferred from these precedents a blanket rule dealing with all mercy killings, rather than a narrow rule based upon the relationship of the individuals. Judges often " THE GREAT QING CODE arts. 388, 361 (William C. Jones trans., 1994) (providing that, for an offender resisting arrest, "[i]f the offender's own offence entails the death penalty and [the guard] kills without authority, [the guard] will receive 100 strokes of the heavy bamboo."). 25 43 XAHL, supra note 9, at 28. 26 See, e.g., 8 XAHL, supra note 9, at 9-10; 15 XAHL, supra note 9, at 27-28; 18 XAHL, supra note 9, at 9-10; 26 XAHL, supra note 9, at 23-24; 54 XAHL, supra note 9, at 26-27; 57 XAHL, supra note 9, at 9-10. 27 For a discussion of the nature of circulars, see Wang, supra note 4, at 151. Some circulars are still available and invite further study. Circulars were printed and consisted of both general regulations on penal affairs and case precedents carefully reviewed by the BOP. See, e.g., iff IT - [CIRCULATED REGULATIONS] (ffJlI3 [BOP] 1904). 8 23 XAHL 12-13; cf MacCormack, supra note 7, at 182-83. 2005] COLUMBIA JOURNAL OF ASIAN LAW reasoned abstractly in this way to draw more comprehensive rules from previous cases.29 Judicial officials used precedents during the Qing dynasty not only to reason by analogy based on similarities in cases and, thereby, to deduce principles of law, but also to distinguish cases and explain why earlier decisions should not control. Judges regularly contrasted factual elements of cases to distinguish their decisions. In an 1817 case, Zhou Jiaheng kidnapped an adulteress, and in the process wounded an employee of the kidnap victim. According to sub-statute, kidnapping alone warranted exile, and assault during an attempt to kidnap a chaste woman warranted a death sentence. However, in this instance, because the kidnapped woman was not chaste, the judge faced a difficult choice between death and exile. The judge distinguished the facts of three prior capital cases that also did not fit neatly under existing legislation. In one case, the crime caused the woman's husband to commit suicide; in another, the victim actually proved to be a chaste woman, contrary to the kidnapper's original belief. In the end, the judge invoked a different precedent altogether to justify the sentence of banishment.3 ° In an 1822 homicide case, Li Decheng, the paramour of Lady Liu, assaulted Lady Liu's husband and killed her father-in-law during a fight after Li was discovered committing adultery with Liu. Lady Liu had called her father-in-law to the scene to help her injured husband. Provincial officials were reluctant to impose the death sentence upon Lady Liu, as called for by sub-statute, because of the sympathy she demonstrated toward her husband. Instead, they advocated the lesser penalty of banishment. This decision was based upon two precedents. However, the central judiciary disagreed with this reasoning and imposed the death sentence, in the process distinguishing these precedents: the father-in-law in the first precedent died of illness rather than injury, and in the other, the woman had repented and ceased the adulterous relationship before the incident occurred.31 However, the decision did not clarify why and to what extent these distinctions made a difference- important questions, as it is virtually impossible to find a precedent with identical factual elements. Qing officials sometimes preferred to rely on intuition rather than reason in arriving at their decisions. Explicit articulation of the reasons behind all decisions could have led to the establishment of more legal principles for use in future decisions. 29 See also 15 XAHL, supra note 9, at 11; 21 XAHL, supra note 9, at 5-6; cf Role of Case Precedent, supra note 7, at 353-54. 30 9 XAHL, supra note 9, at 7-9. 3' 49 XAHL, supra note 9, at 12-15; see also 2 XAHL, supra note 9, at 5-6; 60 XAHL, supra note 9, at 3-4. [19:1 QING CHINA AND CASE LA W In some exceptional cases, precedents are distinguished based on construction of an established rule in the written code. In an 1818 case, Chen Fangfan killed an intruder, but it was not clear at the time of his arrest whether the intruder had intended to commit rape. The court examined a precedent in which a person was sentenced only to a beating and penal servitude for killing an intruder, not knowing at the time of the killing that the intruder was his wife's paramour. In another decision, however, an individual received a death sentence for killing an intruder who clearly intended to commit rape. The court in the 1818 case concluded that, because the intruder's intent was not clear at the precise moment of the assault, the second precedent was distinguishable.32 This is an example in which the written law, rather than the precedents, served as the standard in distinguishing cases. 33 According to the Code, the clarity of the intruder's intention determined the application of the law at issue. For example, general written regulations justified the killing of a nighttime intruder without proper cause. This was the legal rule applied in the first precedent since the intruder's intentions were unknown. If the intruder had raped someone in the household, the victim's relatives would have been justified in killing the intruder immediately after the rape-but would suffer severe punishment in the event that a rape was only attempted, as occurred in the second precedent. The use of precedent in this case is an example of the written law serving as the standard for differentiation. A few decisions specifically laid out standards for distinguishing particular types of crimes. In a dispute that arose in 1826 on the applicability of the rule of xisha ( killing in a game), Ni Fu had attempted to pick up his friend, who was lying drunk on the floor, in order to resume drinking. However, he drunkenly stumbled and fell on top of his friend, crushing him to death. The Liili Guan %, Bureau of Legislation), a special branch within the BOP that drafted legislation and handled difficult cases, deduced the principles of xisha from precedents. It determined that the statute typically dealt with playful but injurious wrestling, not fatal accidents stemming from innocent actions. Crimes of xisha warranted that the death penalty be administered by strangulation, deeming xisha analogous to the crime of dousha (4, killing in a fight). BOP officials responsible for this case argued for the application of xisha, basing their argument on a precedent in which the defendant Yang Hongxi inadvertently caused an associate's death by trying to pull him up from the ground against his will. The Bureau of Legislation pointed out, 32 27 XAHL, supra note 9, at 3-4. 33 See also 25 XAHL, supra note 9, at 19-2 1; 32 XAHL, supra note 9, at 1-2. 2005] COLUMBIA JOURNAL OF ASIAN LA[ W however, that the precedent had found xisha applicable because both cases involved wrestling, behavior similar to a struggle. Since this was the standard laid out for the application of xisha, the court could not apply it to the case at hand because no such struggle had occurred.34 Although it was not common practice to come to a decision on this basis, the officials employed rather sophisticated reasoning skills to resolve the case. Clearly, judicial officials from the Qing dynasty developed and utilized several different reasoning methods. A careful examination of cases from the period demonstrates how widely and proficiently officials employed such methods as analogy, deduction, and inference in distinguishing cases. Officials used these methods to explain the relationship between past and present cases, and to justify final judgments. IV. INSTITUTIONAL CONTEXT OF PRECEDENTS Qing dynasty judges seem to have been particularly well practiced in refining and expanding the reasoning skills necessary to invoke precedents properly in decision-making. The obstacles China faced in further developing a case law system were not a lack of judicial reasoning skills or improper reasoning methodologies; rather, comparison with contemporaneous common law jurisdictions demonstrates that the real impediments lay in the Chinese political and legal system as a whole. Generally speaking, imperial China enjoyed a long history of written law.35 This history developed within a political system based on the centralized authority of a monarch whose objective was the elimination of any potential threat to the absolute authority of the throne. The codified legal system helped ensure a meticulous and strict legislative process. Any new legislation and any legislative revisions to statutes, sub-statutes, or circulars were subject to final ratification by the throne. Furthermore, the emperor oversaw the judicial process, with the exclusive power to decide capital cases and overrule trial decisions by questioning the accuracy of legal reasoning, or even the rationality of the controlling law. Accordingly, maintaining a formal system of case law that recognized the binding force of precedent was impossible, since such a system would have curtailed imperial authority.36 Neither statute nor the 34 31 XAHL, supra note 9, at 18-19; cf MacCormack, supra note 7, at 178-79. 35 For a brief narrative, see tL-[,,q *M4.,6i -AX [Yang Yifan, An Important Area of Misunderstanding in the Study of the Genealogy of Chinese Law], FP [ [SOC. SCI. IN CHINA], No. 6, 2002, at 82-85, 89-90 tbls. I-IV. 36 The lack of binding force behind Qing cases as precedents has been contrasted with modem [19:1 QING CHINA AND CASE LAW throne formally sanctioned the de facto case-law system established by judicial officials, and this cast the monarchy and judicial officials into a constant state of tension.37 To defuse charges of usurpation, judicial officials were reluctant to expressly articulate the various methodologies of using precedents in adjudication. Since, according to the Code, invocation of case law was prohibited unless a prior case was circulated or enacted as a sub-statute, judges easily avoided unwanted results otherwise required under a stare decisis legal regime. In fact, it was common practice for a superior judge to simply avoid a precedent he disliked by citing the Code prohibiting reference to case law, and then finding another basis for his ruling.38 As a result, it was easy in practice to ignore prior decisions for no reason, even those issued by the same authority. Such judicial practice prevented further development of skills necessary to reason by precedent. This system revealed the hierarchy of legal authorities: statute, sub-statute, general circular, and then prior cases, if at all.39 In this context, precedent is relegated to a marginal position in the hierarchy as a rather shaky and uncertain authority. By contrast, in medieval England the social and political status of the legal profession, as well as developments within the legal community, actually encouraged the development of a case law system. By definition, a common law system encourages judges and lawyers to take a leading role in developing precedent. The English legal community began to develop as an entity independent from administrative offices as early as the end of 1 3 th century and, by 1340, it was regular practice to draw new judges from the pool of Westminster attorneys who argued in the royal court.40 Lawyers enjoyed high social status and were limited in number, thus ensuring the exclusive nature of the legal profession. 41 Young lawyers underwent a common training regimen, so lawyers had a shared common law. See, e.g., MacCormack, supra note 7, at 175. However, even in England, a strict principle of stare decisis was not fully established until the 2 0 th century. Even in 1869, a lower- level English judge could decline to follow a superior court's precedent. See RUPERT CROSS & J.W. HARRIS, PRECEDENT IN ENGLISH LAW 24-26 (4th ed. 1991). 37 Typical prefaces to collections of earlier cases acknowledged this point. See, e.g., 04MR [Shao Shengqing], Preface to WM [A NEW EDITION OF CASE PRECEDENT] (1833). 38 Case Precedent as a Legal Source, supra note 7, at 85. See, e.g., CIRCULATED REGULATIONS, supra note 27, Vol. 1, at 10, 36, 67, Vol. 2, at 5, Vol. 3, at 59, Vol. 6, at 61. 39 This system and the specific practice of disregarding earlier cases could also be viewed in light of the traditionally pragmatic spirit of the law, which affected all levels of the hierarchy. The pragmatic attitude towards the law invites further consideration in another article. See 3E13, it' $q 5 -8:E dP[M-J 1 Pflil [WANG ZHIQIANG, THE ROLE OF WRITTEN LAW IN ANCIENT CHINESE JUDICIAL ADMINISTRATION] (forthcoming 2006). 40 J.P. DAWSON, THE ORACLES OF THE LAW 11 (1968). 411d. at3, 16,31. 2005] COLUMBIA JOURNAL OF ASIAN LAW background upon which to draw as they developed their trade.42 In addition, judicial independence enhanced the authority of judges and the weight of their rulings.43 The Chinese legal community's historical context stands in stark contrast to that of medieval England. The lawyer families that were once popular in the Han dynasty (202 B.C. - 220 A.D.) declined in popularity in later periods. Although examinations were required in the Tang (618 A.D. - 907 A.D.) and Song (960 A.D. - 1276 A.D.) dynasties to test legal knowledge,44 legal officials and intellectuals considered themselves part of an elite group, the roots of which lay in classical Confucian beliefs; membership in this legal community was quite different from that of England, where one became part of the community by virtue of his profession. During the Qing dynasty, a special and distinct group of legal secretaries emerged. These were intellectuals who had failed the civil service examinations but were nonetheless employed as consultants in the legal field, forming a close professional network.45 In actuality, these legal secretaries were dependent upon other officials who had passed civil service examinations. The life of a Qing legal secretary also began with a traditional Confucian education, and was heavily influenced by orthodox ideas.46 Because the emperor sat at the top of this Confucian hierarchy, the supreme legal authority of the monarchy permeated practitioners' conceptions of the law. Imperial China also lacked the adversarial system characteristic of England and other common law countries. Such a system leaves more room for judges, prosecutors, and attorneys to argue positions and learn about each others' opinions, and so makes it easier for the ratio decidendi to be articulated and clarified in the process of reaching a decision. In contrast, the Qing judicial system offered a so-called "obligatory 42 J.H. Baker, English Law and Renaissance, in THE LEGAL PROFESSION AND THE COMMON LAW 466-68 (1986). 43 J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 166-68 (2002). 44 &- V ,W4 " JAhiU" L5W- " FZ-P" Vl[I]it [Huo Cunfu, On Similarities and Discrepancies between "Long/infengsui Judgments" by Zhang Zu and "Jiayi Judgments" by Bai Juyi], ,$-I±J_5 JR [LEGALITY & SOC. DEV.], No. 2, 1998, at 45-46; *1M,54JU ] Irt1 at " -i [Ji Huaiyin, Legal Examination Before Nomination of Civil Officials in the Song Dynasty], P Jr-49 [J. HE'NAN U.] No. 4, 1992. 4 5E ±~lk, L '- [Wang Zhenzhong, A Case Study of Network of Legal Secretaries from Shaoxing in North China of Nineteenth Century], Rll-*4R [FUDAN J.], No. 4, 1994. 46 lhl-, 9*-1 f [Zhang Weiren, Legal Education in the Qing Dynasty], in XI ,P IM ]fZM [THE PATH OF CHINA'S LEGAL EDUCATION] 222-23 ('Ji7t- [He Weifang ed.], 1997). [19:1 QING CHINA AND CASE LAW review. ' 47 The accused were presumed to have no knowledge of the law and hence had no right to argue legal issues. A given decision generally reflected the depth of analysis, not between party opponents, but within the judicial system itself. This analysis arose from dialogues between provincial and central officials, or between inferior and superior officials in the BOP, or even among such judicial organs as the BOP, the Bureau of Legislation, and the Dali Si (t , Grand Court of Revision). The depth of argument generally corresponded to the gravity of the case.48 Since superior courts treated civil cases as petty matters, they rarely cited precedents in these decisions. Thus, the restricted nature of proceedings in criminal matters, the government's relative monopoly on legal learning, and its dismissive attitude toward civil matters all played a role in obstructing the further development of the case law system. 49 V. CONCLUSION Examination of case records from the Qing dynasty, in conjunction with methodologies used to reference these recordings and place them in their historical context, reveals the role of precedent in the Qing dynasty legal system. This insight into the history of the case law system in imperial China may also provide inspiration for current discussions regarding legal reform and the role that case law may play in modem China. Does the existence of a Qing dynasty case law system, however embryonic it may have been, support the view that China has the traditional context and cultural experience necessary to construct a modem case law system comparable to that of common law countries? A general survey of China's own historical use of precedents in its legal tradition does not produce a clear answer. A more detailed comparison of the differences between the case law system in pre-modem China and the doctrine of precedent in the history of common-law countries is necessary. 41 William P. Alford, OfArsenic and Old Laws: Looking Anew at Criminal Justice in Late Imperial China, 72 CAL. L. REV. 1180, 1227 (1997). 48 Voluminous compilations exist of judgments on civil affairs, namely panyu (PJ iT, judgment record), by officials at different levels. For more details, see A 11hiAiA R 0) 4Ar [Judgment Records in the Qing Dynasty], in CHINESE LEGAL HISTORY: RESEARCH ON BASIC HISTORICAL DOCUMENTS, supra note 10, at 739-58. However, compared to collections of precedents in criminal cases, almost every single collection of panyu in the Qing dynasty consisted exclusively of the judgments of an individual official rather than collective rulings, while reference to prior civil judgments rarely occurred. 49 This idea was contributed by Chen Li (iJ), Ph.D. Candidate, Columbia University, Department of History. 2005) 344 COL UMBIA JOURNAL OF ASIAN LAW [19:1 In the traditional Chinese judicial process, exemplified by the Qing dynasty, prior cases represented a rather mature source of law upon which judges could rely when written law was absent or ambiguous. Given the fact that prior cases were widely collected, disseminated, invoked, analyzed, and distinguished by Qing judicial officials, such a regular practice may be equated with the Western conception of case law. Furthermore, Qing practice could also boast of comprehensive methods of analogy, deduction, inference, and distinction. Nevertheless, given the unique institutional context of modem China's legal reform, this background in Qing tradition cannot, by itself, suffice to revive the case law system. Significant differences in institutional conditions warrant the exploration of alternative approaches to Chinese judicial reform, approaches that take into consideration the ways in which case law may be incorporated into the future of China's legal system.