Reviews
The Apocryphal Empire

Laura Skosey. The Legal System and Legal Tradition of the Western Zhou. UMI 1996.

University of Chicago Law School

The root question here is: Did Jou (the thing that ended in 0771) have a legal system in a recognizable sense, something with a place of its own in Jou society, or was there instead merely a praxis of royal judgements, all verdicts being rendered ad hoc by the Jou King or his high officials? Skosey concludes that Jou had not only a legal system, but a legal tradition: "ideas which underlie what makes up the law, the way in which law is conceived, and the nature which is attributed to it." Law in Jou should thus be not only systematic, but itself a feature of society, consciously conceived and discussed as such, and functioning apart from the will of the Jou ruler or his immediate representatives.

The case is not proved. It rests on doubtful handling of the archaeological sources included, and the inclusion of dubious text sources. There is also the question of how Skosey's picture fits with the larger evolution of Chinese law, insofar as it can be glimpsed from reliable sources. This last point takes us beyond this author's work, into the question of what a carefully considered history of early Chinese law might look like.

1. Core Archaeological Evidence

Particularly in an atmosphere such as obtains in China, which from the classical period until the present day is intensely concerned to validate the authority of received tradition, with a consequent rash of fraudulent textual claims and forged physical objects, the most important question about archaeological evidence is provenance. Do we know the history of a given bronze vessel, from the time it came out of the ground until this moment? This is the first question that will be asked by any art-savvy person. It turns out that many of Skosey's 25 inscriptions are on unprovenanced vessels, and that the present locations of some those unprovenanced vessels are also unknown. The certification history is gone, and the object itself is also gone, so that all information from the original archaeological context is lost, and no chance of recovering it by new laboratory testing now exists. We have in some cases only a rubbing of the inscription. This is perilous territory, where much depends on connoisseurship and interpretation. Skosey herself notes, in criticism of a previous study, that as interpreted by Fvng and Hu in 1986, a certain inscription "is contradicted by virtually all available bronze inscriptional evidence" (p20). Is it the interpretation, or the inscription, that is at fault? Skosey includes this inscription (in her spelling, the Shi Qi ding) in her own corpus, so she evidently feels that the inscription is all right, and that the problem lies with the interpretation of Fvng and Hu. This is not the only possible conclusion.

In addition to inscriptions proper, Skosey notices a group of four vessels providing pictorial evidence for law. Three of the four are provenanced (and their provenances are different tombs or hoards, a further reassurance). The category is thus reasonably firm. They all depict men with the lower left leg amputated. They unambiguously establish the use of this particular mutilation (ywe). No legal inferences made from these pictures need take us beyond the idea of a Jou praxis of royally decreed punishments or disablements, of indeed the idea of permanently hampered captives. We may take the existence of ywe mutilation as proved for the Jou period. The circumstances in which that mutilation occurred remain open.

The Ying Yi

How much more can the Skosey material safely give us? Of her 25 vessels with inscriptions, only five are provenanced. Of these, four are from hoards rather than from tombs; indeed, all four are from the same hoard, uncovered in 1975 at Dungjyatsun. Dungjyatsun (34° 29´ N, 109° 18´ E) is NE of the old Jou capital, within the Jouywaen area, about 30 miles NE of the Jou capital. Several other hoards have been found in the same area; Rawson judges them to be familial rather than governmental in nature. The cultural context of this find is noted by Skosey (p13f): it was the Cultural Revolution, a time of intense theoretical interest in validating the Marxist theory of slavery as one stage in the inevitable evolution of society. One vessel in particular, the Ying Yi, was seized upon at the time as "the perfect vehicle by which to validate the Chinese Communist and Marxist repudiation of slave and feudal societies" (p14). Was this a misreading, or was the culture here meeting one of its own expressed needs by supplying a compliant vessel? Skosey does not precisely say. A curious if not wholly unknown feature, that the vessel's inscription begins on its belly but continues (in the middle of a sentence) on its lid, is mentioned but not evaluated, as is the fact that, of known yi, this is the only Jou specimen (there are many from Spring and Autumn) to possess a lid in the first place (p380). The Ying Yi purports to record a speech of Bwo Yang Fu, pronouncing sentence in a case of false accusation and oathbreaking. A Bwo Yang Fu occurs in the Gwo Yw text of c0300, where he is made to predict the demise of the Jou Dynasty. Inscriptions recording speeches of persons known to the book texts, perhaps especially persons figuring in such obviously emblematic stories as this one, are intrinsically dubious. Various details of the inscription (such as the levying of a fine of 300 lye of metal, by some scholars interpreted as silk) are found in other inscriptions, but in different social contexts.

The find is thus presumably genuine, but this particular vessel within the find might be problematic. How then should one proceed? One cautious way would be to extract the implications of the safer part of the corpus, as a context for evaluating any more suspicious part of the corpus. This Skosey has not done. But a sample may at least be taken. Below is a list of the legal terms in her summary list on p447-457 which are attested by at least one of the five more or less provenanced vessels (with or without other support in her corpus), including the Ying Yi. Terms occurring only in the Ying Yi are marked by boldface; it will be seen that they include 68% of the whole. Much of Skosey's case thus rests on this one vessel.

The reduction of a sentence of 1,000 lashes to 500 lashes in the Ying Yi would still seem tantamount to a death sentence. But more generally, it can be said that these inscriptions do not imply a proactive legal structure with a bureaucratic basis. Even if we include the Ying Yi terms, they appear to be adjudications ad hoc. Of the five inscriptions, the Jou King himself presides in one. In three others, he is in the background with his officers presiding. In the remaining one, the officers alone are mentioned. Any officers presiding are mentioned by names (in honorific form), not by titles that would imply a permanent bureaucratic function. All petitioners are presumably persons from within the Jou territory proper, except for one case said specifically to have been brought for resolution by an envoy from the ruler of Wei.

Not once is any law explicitly referred to, or is any previous case cited as a guide to present decision. All five cases involve disputes about land, or are resolved in part by transfer of land. The basic term of relation between the Jou and everybody else was allocation of land. It makes sense that land, and the promises made in return for receiving the land, were of continuing relevance to the granting authority.

If we accept the evidence of these five test vessels as valid, the late Jou picture that they give us is that of a punishment system, deriving its authority from the Jou King. That royal authority was sometimes exercised by his high officers who are not yet officials in the bureaucratic sense, and in charge of procedures which are not yet standardized. The procedures did not rely on codes, or on case records apart from a previous oath which may be a part of a specific res gestae. Cases were judged separately, on their own merits, and as far as this sample goes, they were chiefly concerned with with title to land. Jou here is acting as monitor of rights which Jou itself had previously conferred. The result is a vertical obligation system, without being a criminal law system. A feudal overlord is exerting its function as the overlord, over the limited area defined by the original underlord relationship. This is as far as the inscriptions seem to take us.

2. Text Sources

To the corpus of 25 legally relevant bronze inscriptions, Skosey adds two long texts from the book tradition. Such a step raises obvious issues of compatibility and authenticity, and this Skosey knows. She is herself severe with authors who contaminate the contemporary evidence of Jou inscriptions with the retrospective imaginings of later forged book texts. Of one earlier study she says (p25):

"A primary methodological flaw is that equal treatment is often accorded [to] received texts of different periods with early bronzes. More specifically, rather than focusing on the date of composition of received texts, the authors look to the period in which the narrative of a particular piece is set and from that extrapolate what the law of the period described was like. For example, the authors accept various Eastern Zhou chapters of the Shangshu as being representative of legal practices in the (mythical) Xia dynasty (21st-16th centuries BCE). Likewise, they attribute the late Springs and Autumns chapter of the Shangshu, the Lu Xing, to the reign of King Mu, thus viewing it as reflective of legal practices of the tenth century BCE. . . With this type of methodology used consistently throughout the book, it is difficult to arrive at any conclusions which can be said to reflect accurately Western Zhou law." (p25)

This is admirably put. We may note that properly speaking, it casts doubt on all the Shu texts, no one of which, and no group of which, have a plausible scenario of transmission from Jou to their first appearance in the 04th through 02nd centuries, which are in a variety of styles, none of them precisely equivalent to the language of the bronze inscriptions. Skosey promises rigor:

"Second, there is no single, in-depth treatment of Western Jou law that uses sources faithfully, that is, which uses only those sources that are incontestably datable to the Western Jou. Consequently, I have been quite conservative in my use of sources" [p33]

She then proceeds to treat the Shu texts Kang Gau and Jyou Gau as "incontestably contemporary" (p8) and devotes the pages of her "Sources" chapter devoted to them (p115-117) simply to a summary of their contents, without a word in defense of their authenticity. She does note, of the Kang Gau:

The majority of the document, however, serves to expound several legal principles. Some of these crop up in bronze inscriptions, while others are only seen here. A particularly interesting example of this latter group is the distinction made between crimes committed out of negligence and those committed intentionally. . ."

but she does not appear to notice that these second-order concepts such as the negligence/intent distinction imply a late stage in legal evolution, and thus a late date. Nor is that distinction all that the two Shu texts contribute to her picture of early Jou. Her list of key concepts on p447-457 gives references to her sources. Overlooking cases where she finds a different meaning in the same term in the inscriptions as against the book texts (though such differences already suggest a different language and a different cultural matrix), we note, among the terms attested solely by the Kang Gau and/or the Jyou Gau, the following:

This looks like the lexicon of a functioning civil law system, which has publicly known law codes, and which of its own initiative apprehends those who offend, not against the ruler, but against other people. It is doubtful if the authority of the Kang Gau and Jyou Gau will suffice to establish this situation for the very early Jou, especially since such a situation is not visible in the much later Jou as described by the inscriptions.

Another feature of the Shu documents is that they include interfamily disputes within the purview of the law, and accept responsibility not only for punishing, but also for educating, the public. They also take a very advanced view of filial piety and its counterpart, fraternal subordination:

In the view of the Kang Gau and the Jyou Gau, law is not merely comprehensive, it is socially constitutive. This view is upheld in a different way in the admittedly late Shu document Lw Sying, which implies that the legal system is autonomous, the ruler having no role in it. It also specifies that the wise and uncorrupt functioning of the legal system makes punishments, which once were merely terrible, into "an instrument of good omen." This portrays, not merely a legal system, but a reformed legal system. That concept can be safely attributed only to the time in which it first appears, and that is the 04th century, earlier, but not more convincing, than the first quotations from the Kang Gau and the Jyou Gau.

3. Legal History

It is not enough to dismiss one Shu text (as Skosey dismisses the Lw Sying), or to cast doubt on two more (as I have done above with the Kang Gau and Jyou Gau). One must reinstall them at their proper places in the record, in order that they make their proper contribution to our understanding of the record. It is accordingly clear, not only that the Lw Sying does not describe the end of King Mu's reign (the late Jou inscriptions are unaware of any such dramatic change as the Lw Sying proclaims, and continue to judge cases as before), but that it reflects issues which were current in a quite different time.

That time is time attested by the earliest chapters of the Gwandz (GZ 1, 2, 3, and 7), the middle ethical essays of the Mician school, the middle chapters of the Analects (LY 12-13, 2, 14-15), and the later layers of the Dzwo Jwan. Nothing in any of these texts makes sense unless it is realized that they are all talking about the same thing, and sometimes directly engaged with each other in arguing about that thing (as in the Analects/Gwandz social policy debate noted in The Original Analects p257). This is also the period when legal processes are first firmly attested (for Chu, by the Baushan 2 texts of c0316). The first archaeological evidence and the first securely datable text evidence thus coincide: all are within the 04th century. The openly contemporary statecraft texts are debating current political theory issues, including the place of law in society. In this context, the archaizing texts (the various Shu and also the archaizing Dzwo Jwan, which purports to document law codes in earlier centuries) may be seen as trying to establish some kind of ancient pedigree for what, on all other evidence, was a contemporary innovation.

It would seem, in conclusion, that Skosey, though she makes some of the right methodological moves, has still been deceived by some of the more skillfully done archaizing texts, and that the more dubious part of her evidence will need to be reassessed against the less dubious part, before its information on the nature and extent of Jou legal practice can be properly evaluated.

For the student in search of a history of Chinese law who was disappointed to find the first or Shang chapter of that history contaminated, in K C Chang's 1980 treatment, by the mixing of spurious text sources with genuine inscriptional sources, this 1996 attempt to write Jou legal history will come as a disappointment. But not as a new disappointment. On the contrary, it will be more of the same old thing: the inability of Sinologists, whether eminent or incipient, to give up their cherished but spurious texts, and to go instead where the hard evidence is trying to take them. The same acceptance of dubious sources also lies at the root of Vandermeersch's failure to write the more general history of legalist thought in China.

And the worst of it is that, so far, the field has nothing better to show for itself, on this subject, than these examples. Looked at in its relevant context, the context of what has been done with classical and Near Eastern legal history, the Sinological record is simply pathetic.

E Bruce Brooks
Warring States Project
University of Massachusetts at Amherst

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