Law, Justice, and Empire in Comparative Perspective Series: "Legal Philosophy and Legal Practice in Early China and the Roman Empire"
About the Event:
This roundtable will examine and discuss the following statements from Paul R. Goldin and Clifford Ando.
How Realistic Was Early Chinese Legal Philosophy?
Paul R. Goldin
Before the documents excavated at sites such as Shuihudi 睡虎地, Zhangjiashan 張家山, Longgang 龍崗, and Liye 里耶 revolutionized our understanding of early Chinese law—that is to say, for virtually all of imperial Chinese history and much of the twentieth century as well—historians were inevitably beholden to so-called legalist texts, primarily the eponymous Shangjun shu 商君書 and Han Feizi 韓非子, which were associated with influential Qin statesmen and hence taken to be representative of laws and institutions in that kingdom.
Over the past forty years, research on excavated texts has been truly path-breaking, and it is no exaggeration to say that we now understand more about Qin and early Han law than most Chinese literati of later dynasties. Yet the relationship between legal thought and practice remains underinvestigated. The fine translation and study of the Zhangjiashan texts by Anthony J. Barbieri-Low and Robin D.S. Yates takes it as a matter of course that the jurists responsible for drafting and interpreting these documents were “legalists” in the mold of Lord Shang or Han Fei. The influence of such theorists over the legal system is far from clear, however, as the philosophies of Shangjun shu and Han Feizi clash with the realities of early Chinese law in several important respects: for example, on the question of status-based adjustments to legal requirements and the role of the state in enforcing filial piety (xiao 孝). Even the keyword fa 法 does not seem to have been used in precisely the same way.
For various reasons, some having to do with the sustaining of ideological distinctions in historical practice, some having to do with the difficulties of the source material, and more besides, the world of Roman legal scholarship long divided between scholars of practice (who perforce worked on evidence derived from elsewhere than Rome) and scholars of theory and doctrine (who worked on textually-transmitted material that originated in the metropole). But there are also now scholars trying to figure out how new forms of history might be written that either bring these narratives together, or that surmount the distinction by other means. The readings that I provide seek to illustrate some of this work.
This session responds to the wonderful material provided by Paul Goldin, and to the questions about law and empire that the discovery and excavation of early Chinese legal documents has elicited. At some level, the Roman situation bears strong resemblance to this: codifications of imperial enactments and—for lack of a better term—collections of legal academic writing from the Roman empire have been known for a millennium, and these collections were long accorded a privileged position as sources in the recuperation and study of "Roman law." Needless to say, the interests that impelled persons to study Roman law, and the nature of the source material, collaborated to make the history of doctrine central to the discipline (rather than socio-legal study or any other form of historical inquiry). But much other material survives, including forensic oratory, fictional prose containing narratives of courtroom scenes, and documents that derive, at varying degrees and in diverse genres, from trial transcripts (as well as fictive versions of such things). What is more, commencing in the late 19th century, scholars began to recover documentary evidence from Egypt—and later the Judaean desert—in the form of potsherds and papyri. Over time, this material has gradually been exploited to produce an extraordinary contemporary efflorescence in legal history.
About the Speakers:
Speaker: Paul R. Goldin
Professor of History, University of Pennsylvania
Speaker: Clifford Ando
Professor of history , University of Chicago
Discussant: Jan Kiely (CCS)
Professor of History
The Chinese University of Hong Kong
Chair: Liang Cai
Associate Professor of History, University of Notre Dame
About the Series:
This roundtable is the second in a series titled, Great Divergence: Law, Justice, and Empire in Comparative Perspective. The series is sponsored by the Liu Institute for Asian and Asia Studies, Department of History, Notre Dame International, Hong Kong Baptist University Jao Tsung-I Academy of Sinology 香港浸會大學饒宗頤國學院