Shang or Later Civilization?

Kwang-chih Chang. Shang Civilization. Yale 1980

Law is a feature of many civilizations, and students of civilization in general may thus validly wonder whether the Shang period of China possessed a recognizable system of law. Some of those students may turn to the work here under review for an answer. We evaluate the book on just one point: the adequacy of its answer to that question.

K C Chang

Suppose we were looking for a history of Chinese law. The Shang people at some point adopted a cultural complex including the horse, the chariot, the art of bronze casting, and the art of writing. The latter detail is the one important for our investigation. It means that the Shang period is the earliest textually attested period in Chinese history. We would therefore expect the first chapter of the history of Chinese law to deal with Shang. No history of Chinese law has yet been written, and we must therefore seek its individual chapters in various places. One place to which one might reasonably turn for the Shang chapter is David Keightley's summary The Ancestral Landscape (2000). That book contains no mention of Shang law. But its subtitle ("Time, Space, and Community in Late Shang China") may suggest a disposition toward the schematic rather than the seamy side of civilized life, so that the lack of any reference in the book to law may not be decisive. Did the author omit the data on Shang law, or were there no data on Shang law to be included? That is the question, one which the reader may hesitate to decide. It is tempting to query the author directly, but authors are busy people, and the polite student may hesitate to intrude. That student will instead seek for a positive statement about Shang law in some other book.

Thus might we come to "Shang Civilization" by K C Chang, another recognized leader in Shang studies. "Shang Civilization" does contain an Index entry for "law;" it refers to pages 200-01. This review is confined to what is on those two pages.

"Leopold Pospisil sees in legal decisions four attributes whose coexistence defines law: authority, intention of universal application, obligatio, and sanction. Shang data on legal decisions are so rare as to be nonexistent . . . "

[We will take up the data in a moment. Chang continues]:

". . . but each of the four attributes is manifest in available data in some fashion. But first let us consider the parties involved in such decisions. All we can see are the king and the authority he represented, on the one hand, and his subjects, on the other. His subjects were those of his people addressed in the Shu ching documents and those who bodily bore the consequences of his sanctions apparently because they failed, or were regarded as having failed, their part of the obligatio. / In T'ang shih, of Shu ching, we see the obligatio attribute most clearly, with obligatio defined as "that part of the legal decision that defines the rights of the entitled and the duties of the obligated parties" [here a footnote to Pospisil]. On the king's part, he demanded that the people "obey the words I have spoken to you." . . ."

That would seem to solve it. But there is one tiny problem. The document in question purports to be a stenographic record of a public speech of Tang, the first Shang King. But the chariot/writing cultural complex abovementioned had not yet been introduced into Shang at that time. The divination records which prove the existence and use of writing do not begin to exist until (get this) the 21st of the line of 29 Shang Kings. Unless one can think of some way of doing stenography without writing, the Tang Shr document is thus an impossibility, and relying on it as evidence for Shang is a piece of naïveté. It is the use of a text by someone who does not understand the nature of that text.

The Tang Shr document thus cannot be a transcript; it must be a later production. How much later? For starters, we may note that the Tang Shr scenario, in which a sovereign delivers what amounts to a constitutional address to the multitudes of his people, is very likely to be a legal-history fiction of the 04th century, the period when populism (the idea that the people are constitutive for the state) first came to be discussed. It is hardly any wonder if concepts such as obligatio were in the air at that time, since from many 04th century documents we know that the legal system of early China was already under construction, and was relatively far advanced. In the 04th century. To accept the idea that obligatio existed a thousand years earlier is to give altogether too much credence to the theory propaganda of the 04th century. It bespeaks an attitude which is uncritical in the extreme.

Another Source

Having, as he imagines, established the existence of Shang law from the Shu documents, Chang proceeds to take the next step, and look at Shang documents. Even this he does not do at first hand. He quotes Ch'en Pang-huai. Ch'en has found, among these thousands upon thousands of Shang bone divination records, exactly five which in his view relate to Shang legal procedures. In sum, these are:

1. A litigation between two parties is presided over by a judge, who is regarded as fair.
2. The King asks a minor official about an imprisonment; the official responds.
3. A criminal is sentenced to die; execution is stayed and the criminal remanded to custody.
4. A criminal is sentenced to die, but is pardoned by the King.
5. An official applies for exemption for a criminal sentenced to labor (grinding grain).

This sounds somewhat promising, albeit scanty. Chang however goes on to comment, and we give him full credit for his candor:

"In each case, however, Ch'en's reading of the relevant passage depends on uncertain interpretation of one or two characters. A better understanding of the legal system of the Shang can only be achieved with the discovery of some texts with codified legal rules: after all, we find that, according to To Shih in Shu ching, "the fathers of the Yin dynasty had their archives [ts'e] and statutes [tien]." The oracle records were probably a part of the archives, but no trace of the Shang statutes has been found."

From Ch'en's five documents, then, it seems we are back to zero. Yet upon that zero, Chang erects a conclusion that Shang archives, containing written Shang law, must have existed.

He does this by utilizing a second Shu document, the Dwo Shr. This purports to be a speech by the Jou King to the officers of the recently defeated Shang. The Dwo Shr is based on the the idea that retaining the Mandate of Heaven is based on beneficent treatment of the people; that is, it is once again based on populism theory, and to repeat, there is no evidence for populism theory before the 04th century. Suppose we waive the obvious inference that the Dwo Shr also is retrojecting features of its own time back into the Shang Dynasty (in the Dwo Shr called the Yin Dynasty), a thousand years earlier. Let that pass for the moment. Does the Dwo Shr imply Shang legal archives, along with the known Shang divination archives? It does not. It claims that Shang had records of events, not that it had records of law cases, or copies of statutes. That is, the Dwo Shr makes precisely the same claims about supposed early records as do the Mician advocacy texts, yet another set of writings from the 04th century, which insist that records of Heaven's doing, or of a vengeful spirit's punishment of its oppressor, were kept in the various states. Now, the Dwo Shr and the Mician ethical writings, like the Dzwo Jwan, are at bottom moralizing texts. They attempt to reduce human affairs to a matter of transhuman judgement and influence. It is doubtful if history actually happened this way, and it cannot be shown that anybody before the 04th century even thought that it happened this way. The emergence of that moral view of history is precisely part of a thought revolution that characterizes the Chinese 04th century. Nothing as deeply tinged with that view as the Tang Shr, or the Dwo Shr, or the majority of the other purportedly early Shu documents, can possibly be earlier than the 04th century.

Then insofar as the case for Shang law rests on the Shu, it rests on nothing at all.

Back to Square One

So where are we? The Shu are worthless, and all we have left to look at are the genuine Shang documents: the oracle bone divination records. Seeming signs of legal procedure in the oracle texts are exceedingly few, and those few are open to challenge as misreadings. Still, what if they are correct readings? We need an expert reader of Shang oracle bones, and we need that reader's opinion, not only on the five bones picked out by Ch'en, but on the entire corpus of oracle bone inscriptions. Let us then reconsider our first reluctance to bother a busy man, and query David Keightley directly. This the present reviewer has done. The answer came back in a single sentence: "The Shang did not posses law codes or formalized legal procedures."

Back at the beginning of the 18th century, Yau Ji-hvng prefaced a short discussion of inauthentic texts both ancient and recent with these words:

"Many spurious books have been produced in both ancient and modern times. Can a scholar who does not distinguish between genuine and spurious be called a scholar? He must clearly distinguish them. To make that distinction is the first duty of scholarship."

By that test, Chang flunks the first duty of scholarship. I have elsewhere defined Chinese archaeology as something done with a spade in one hand and a copy of the Dzwo Jwan in the other. On the basis of Chang's work, it seems that I must now amend that characterization. For earlier periods, Chinese archaeology is something done with a spade in one hand and a copy of the Shu in the other.

Archaeology is potentially useful to history, precisely because it helps us to get behind the sometimes perilous text record. But mixing archaeology, including the inscriptions discovered by archaeology, with the perilous text record gives a perilous result.

In rigorous mathematical terms, garbage plus X, whatever the X, equals garbage.

As far as our topic of early law is concerned, then, we have archaeological evidence for mutilating punishments in the Shang, but that is absolutely all we have evidence for. The possible first chapter of a responsible history of Chinese law is thus either blank or fraudulent. We must judge these two pages of Chang's work to be, at best, receptive to something that is completely fraudulent. Better they had been blank.

And as to the possible second chapter of our history of Chinese law, the Jou chapter as it has been written by others, the verdict must be the same, and for some of the same reasons - the contamination of the real archaeological evidence with the fake text evidence (see the review of Skosey, elsewhere on this site).

The error of Chang, then, is not idiosyncratic. It is endemic. As an index of how far the infant science of Sinology had progressed in the 20th century, Chang's two pages are anything but encouraging. They are damning.

E Bruce Brooks
Warring States Project
University of Massachusetts at Amherst

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21 Oct 2012 / Contact The Project