The Annals and Legal Cases
Legalism emphasized a strictness in rewards and punishments that was easily assimilated into the Annals' praise-and-blame tradition. In deciding legal cases (chueh-shih ) on the basis of precedents (li ) in the Annals, Han Confucians had to employ not only the Annals' historiographical standards but also its behavioral standards as well. One Han casebook, now lost, was reputed to contain 13,472 cases decided according to classical precedents.
Tung Chung-shu himself produced a legal tract entitled Kung-yang Tung Chung-shu chih-yü (Tung Chung-shu's judgments of cases according to the Kung-yang Commentary ), which reportedly included descriptions of 232 actual legal cases decided according to precedents in the Annals. Only a few of these descriptions have survived. Tung's tract was probably one of the earliest casebooks composed in imperial China and was directly linked to the Former Han New Text agenda. On one case, Tung Chung-shu observed:
At the time, there were those who questioned the verdict saying: "A had no son. On the side of the road, he picked up the child B and raised him as his own son. When B grew up, he committed the crime of murder. The contents of the accusation [against BI included [the fact that] A had concealed B [after the crime]. What should be the judgment regarding A?"
Tung Chung-shu passed judgment saying: "A had no son. He restored [B] to life and raised him [as his own son]. Although B was not A's natural son, who would think of seeing [B] as anyone but [A's] son? The Poetry [Classic] says: 'The mulberry-tree caterpillar has little ones, but the wasp raises them.' According to the intent of the Annals , a father must cover up for his son. A accordingly concealed B. The verdict: A does not deserve to be punished."[12]
Tung Chung-shu's use of classical precedents for legal judgments was not an isolated development. During the Former and Later Han dynas-
[11] Bodde and Morris, Law in Imperial China , pp. 29-38.
[12] Pan Ku, Han-shu , vol. 3, p. 1714 (chüan 30). For the allusion to the Poetry Classic see Shih-ching yin-te , 46/196/3. Chinese peasants believed the silkworm abandoned its young, which were then raised by wasps. Hence this expression was included in the Poetry Classic. See also Ch'eng Shu-te, Chiu-ch'ao lü-k'ao , pp. 170 -77, and Shen Chi-i, Han-lü chih-i , 22.4a, on Hah dynasty uses of the Annals to settle court cases. For a discussion see Hsing I-t'ien, "Ch'in-Hah re lü-ling hsueh," esp. p. 66. Cf. Bodde and Morris, Law in Imperial China , pp. 144-45. A different but analogous case is discussed in Ebrey, "Family in the Sung Dynasty," p. 234.
ties Confucian scholars mastered both classical studies and the legal applications that derived from such studies. Han Confucians thus studied these two disciplines together for use in government appointments and careers that required both classical and legal expertise. Such renowned Later Han classicists as Ma Jung and Cheng Hsuan followed Tung Chung-shu's lead in using legal studies (lü-ling chih hsueh ) to illuminate classical passages (ming ching-i). The degree to which the conjunction of classical and legal studies was required for career advancement in the Han imperial erudite system remains a problem for future research, but it is at least clear that until the Sung these two avenues of study were not independent of each other.[13]
It was assumed that Confucius's praise-and-blame position encoded in the Annals could be used "to make legal judgments through analogy" (chueh-shih pi ), which would provide standards for later criminal cases. Hihara Toshikuni points out that Han Confucians made the intentions of an act the major criteria for judgment. The Kung-yang chuan, in evaluating Confucius's historical judgments on certain explicit political acts, focused on the intentions of the actor, not simply on the consequences of the act.[14]
For example, in the case of Duke Yin succeeding to the throne of Lu in 722 B.C. , the Kung-yang interpretation stressed that his accession to the throne was not officially acknowledged in the Annals. Normally, when a ruler came to power, Confucius used the phrase "succeeded to the throne" (chi-wei ) to acknowledge the event. But this phrase was not used for Duke Yin:
Why does the text [of the Annals] not state that Duke [Yin] "succeeded to the throne"? In order to give full expression to the Duke's intention. Why so? The Duke intended to pacify the state and [eventually] restore it to Hsuan [reigned in Lu 711-694 B.C. ]. Why restore it to Hsuan? Hsuan was the younger [of the two], but of nobler birth. Yin was the older, but of lower birth. The difference in their relative status was slight. People in the state did not know [whom the late Duke Hui, r. 768-723 B.C. ] had elected as his [successor]. Yin was grown-up and, besides, a worthy man. The great officers brought him forward and established him as ruler.
If Yin, under these circumstances had rejected [their decision to] establish him as ruler, then he would have had no assurance that Hsuan [at a later date] would be certain to be established as ruler. Furthermore, supposing that Hsuan were established as ruler, it was feared that the great officers
[13] Ch'eng Shu-te, Chiu-ch'ao lü-k'ao , pp. 31-32, 165-70. Hsing l-t'ien, pp. 87-91, notes that the combination of legal and classical studies received less emphasis after the fall of the Han dynasty in A.D. 220. See also McKnight, "Mandarins as Legal Experts."
[14] Hihara, "shunju[*] Kuyogaku[*] no Kandai reki tenkai."
would be unable to assist so young a ruler. Therefore, that Yin allowed himself to be established as ruler was to all intents for the sake of Hsuan.
Because Hsuan was of more noble birth than Yin, he should have taken the throne, but circumstances (Hsuan's youth) prevented proper succession. The Kung-yang chuan, however, covered up as much as it revealed about Duke Yin's reign. The duke remained in power for eleven years, but in 711 B.C. he was assassinated by Hsuan, who, according to the Annals, formally "succeeded to the throne" without waiting for Yin to abdicate in his favor. The Kung-yang account did not explictly implicate Hsuan in Yin's death, but the Ku-liangCommentary did:
What is meant by the statement that [Duke Yin] did not choose to become duke? He intended to resign the title and hand it over to Hsuan. Was it correct to resign the title and hand it over to Hsuan? The answer is that it was not correct. The Annals gives full expression to a man's good qualities, but does not do so with regard to his evil qualities. Since Yin was not correct, why does the Annals give full expression [to his intention]? The Annals seeks thereby to condemn Hsuan. Why condemn Hsuan? Since Yin intended to resign [in favor of Hsuan], and Hsuan assassinated him, it is obvious that Hsuan was evil. Since Hsuan was the one who assassinated Yin, and Yin was the one who [intended to] resign [in favor of Hsuan], it is obvious that Yin was good. Because he was good, how can he [be said to] have been incorrect in this respect [of wishing to cede the throne to Hsuan]? The Annals values righteousness, but does not value [mere expressions of] favor. It seeks to extend the correct principles and does not seek to extend corrupt ones.[15]
Hence the Ku-liang account gave a different judgment on the meaning of the phrase "succeeded to the throne":
According to the correct norm, the succession of an assassinated ruler is not indicated by the phrase "succeeded to the throne." Why is this so? The answer is that when the late Duke [Yin] did not die a natural death, his son or younger brother could not bear [to perform the ceremony of] succession. When the phrase "succeeded to the throne" is used in the case of succession of an assassinated ruler, use of this phrase indicates that the successor was an accomplice in the assassination itself. Why is this so? The answer is: when the late lord did not die a natural death, [for his successor] to take up the position in full accordance with ritual is to show lack of affection for the late lord.
[15] Ch'un-ch'iu ching-chuan yin-te , 1/Yin 1/1 Kung, and l/Yin 1/1 Ku. Cf. Malmqvist, "Gongyang and Guuliang Commentaries," pp. 68-69.
The Kung-yang chuan did refer obliquely, however, to the crime committed by Duke Hsuan in its discussion of Duke Yin's death:
Why does the Annals not record the burial [of Duke Yin]? In order to commiserate with him. Why so? [He was] assassinated. Why is the burial of an assassinated lord not recorded? The Annals does not record the burial of an assassinated feudal lord, unless the assassin has been punished. [The Annals considers that unless this has been done], there are no [true] subjects and sons.[16]
Full sympathy was accorded by both the Kung-yang and Ku-liang commentaries to Yin's intention to cede his throne to Hsuan, the proper successor, when the latter was of age. In addition, the crime of murder by Hsuan, the successor, was noted. Chao Fang, a later commentator on this issue said in a work on the Annals admired by eighteenth-century New Text scholars that the assassination of Yin by Hsuan was a key to understanding Mencius's meaning when he wrote:
There were instances of ministers who murdered their rulers, and of sons who murdered their fathers. Confucius was fearful and compiled the Annals .[17]
Niida Noboru notes that in Confucian judgments the intentions of the perpetrator of a crime were not totally divisible from its consequences. Nevertheless, good intentions, as the above case demonstrates, had precedence over even mistaken actions that resulted in horrific crimes. It was the judgment in a particular case, not the law, that determined justice. According to Tung Chung-shu, the Annals determined justice by elucidating the participants' intentions in each case. On another case, for example, Tung made clear the priority of good intentions over the consequences of an act:
A is B's wife. The latter hits his [own] mother. A sees her husband hit his mother, and she kills him as punishment [for the sake of her mother-in-law]. That is similar to the act of King Wu [founder of the Chou dynasty], who killed the tyrant Chou [r. ca. 1154?-1122?, last of the Shang dynasty kings] in the name of divine vengeance.[18]
[16] Ch'un-ch'iu ching-chuan yin-te , 23/Hsuan 1/1 Ku, and 22/Yin 11/4 Kung. Cf. Malmqvist, "Gongyang and Guuliang Commentaries," pp. 86, 94.
[17] Chao Fang, Ch'un-ch'iu shu-tz'u , 4.1 lb.
[18] Hihara, "Shunju[*] Kuytgaku no Kandai teki tenkai," pp. 1-16. See also Huang Yuan-sheng, "Han-tai Ch'un-ch'iu che-yü chih yen-chiu," pp. 1-16, and Escarra, Chinese Law, pp. 383-87, and for Tung's case see Su Yü, Ch'un-ch'iu fan-lu i-cheng, 3.18b. Cf. Ch'eng Shu-te, Chiu-ch'ao lü-k'ao, pp. 230-31, 271-73, 409, for legal uses of the Annals through the Sui dynasty (581-618), Hulsewe, Remnants of Hah Law, vol. 1, pp. 51-52, and Niida, Chügoku hoseishi[*] kenkyu[*] , pp. 609-19. Niida takes issue with Hihara's portrayal of Han legal judgments based on the Kung-yang chuan as strictly subjective. For Hihara's reply see his "Shunju[*] Kuyogaku[*] no ronri shisò," 2-3.
Legal judgments made with reference to classical precedents (chueh-shih pi ) constituted the body of law to be used as classical experts saw fit. By analogy, if a king could be killed for his crimes by his successors, then so could a wife justifiably kill her husband in cases where the latter failed to fulfill his filial duties to his mother. The Mencian theme of regicide could thus be applied by analogy to a family crime.
We find already in Han times a tendency to draw analogies between historical events and contemporary legal problems. Use of history as a casebook revealed the integral links between classicism, moral didacticism, and historical analogism from the early empire on. To be sure, T'ang and Sung Confucians, as Robert Hartwell points out, stressed the operation of social institutions of the more recent past. Their use of classical models from the Annals and Rituals of Chou (Chou-li ), however, was remarkably similar in spirit, if not completely in content, to the New Text use of historical precedents for determining legal judgments during the Han dynasties.[19]