2012 Conference

China and Inner Asia Session 352

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Legal Knowledge, Popular Culture, and Politics of Judicial Reform and Continuity in Qing China, 1651-1911 - Sponsored by the Society for Qing Studies

Organizer: Li Chen, University of Toronto, Canada

Chair: Thomas Buoye, University of Tulsa, USA

Discussant: Madeleine Zelin, Columbia University, USA

This panel utilizes new sources and offers new perspectives on important aspects of Chinese popular culture, judicial practice, legal tradition and modernity in the Qing dynasty from 1651 to 1911. Li Chen reexamines private legal advisors’ crucial role in Qing legal knowledge production and judicial administration. He shows that Qing law and justice, not just an instrument of imperial control, was a crucial site of dynamic negotiation between different social groupings seeking to maximize their interests or articulate competing visions of justice and social norms. In his study of “grave destruction” cases in nineteenth-century Taiwan, Weiting Guo’s paper provides a valuable example for that while advancing our understanding of how popular religion combined with specific economic interests to shape the strategies of individual litigants and official responses, as well as judicial politics and legal culture. As more people used or abused the judicial system for all kinds of purposes, the judicial system itself was in trouble, especially after the relaxation of prior restrictions on capital appeals around 1800. Shiming Zhang’s study of the “Adjudicative Bureaus” shows both the successes and challenges of that new agency to deal with the daunting task of clearing the judicial backlog before the late-Qing reform. Daniel Asen’s paper on the “modernization” of forensic science and the coroner’s office as part of the late-Qing legal reform vividly captures the complexities of that process when dynamic institutional and intellectual transformation took place where many indigenous values and institutions had to be re-invented to be considered compatible with Western/modern ideas.

Contestation over Knowledge and Justice: Private Legal Advisors, Judicial Administration, and Challenges to Imperial Control in Qing China, 1651-1911
Li Chen, University of Toronto, Canada

While many historians of Chinese law know the importance of legal advisors (xingming muyou) in Qing judicial administration, few have systematically studied the concrete evidence of how these legal experts or professionals actually shaped the daily operation of Qing law and justice. This paper will reexamine the available evidence of their specific roles on different levels of the Qing judiciary. It will argue that the vast majority of Qing legal cases were very likely handled by these private legal advisors, and that they were clearly the most popular and influential authors of Qing legal treatises and handbooks which guided both legal training and judicial practice during the Qing. Moreover, their increasing domination over the judicial system from the county up to the provincial courts also explained why the Qing Imperial Court was anxious to reign them in. The rise of tens of thousands of these private legal professionals nationwide who were the de facto judges in virtually all local governments but were outside the official disciplinary regime presented an unprecedented challenge to the imperial government’s traditional monopoly over the meaning of law and justice in theory (legal publications) and in practice (judicial administration). Part of the paper will also investigate what measures the Qing Court adopted in an attempt to keep these private legal professionals under control, and why those measures were doomed to fail. This study illuminates important aspects of Qing judicial administration, legal culture, and imperial governance.

“Grave Destruction” Cases in Nineteenth-century Taiwan: Geomancy, Judicial Politics, and Litigation Strategy
Weiting Guo, University of British Columbia, Canada

In recent years, scholars have noticed the importance of religion in Chinese legal culture, yet they fail to explore the practice and ideology of grave and geomancy (fengshui) in legal practices. To fill this void, this paper examines the magistrate adjudication of “grave-destruction” (hui fen) in nineteenth-century Taiwan. It argues that these “grave-destroying” behaviors did not merely result from desires to plunder valuables or exploit economic resources, but were also caused by ideologies of geomancy, dispute resolution strategies, and judicial politics. Since the state enforced strict punishments for grave-destroying behaviors in order to maintain the cult of ancestral worship and geomantic beliefs, some lawsuit petitioners tended to claim that their ancestral tombs had been ruined by their opponents, in hopes of making them subject to serious punishments. However, despite these rigid laws, many people violated this regulation by destroying their opponents’ ancestral graves, hoping to bring supernatural disasters upon them, forcing them to surrender their interests over lands, or acquiring good geomantic positions in order to get better fortunes and cosmic forces. Moreover, even though county magistrates were required to report instances of grave violation to their superiors for scrutiny, they frequently concealed these cases or distorted the facts in order to avoid judicial reviews. By examining the dynamics of “grave-destruction” cases in Taiwan, this paper points out that grave and geomancy had formed an important venue in Chinese legal culture in which ordinary people and local officials negotiated local governance and manipulated geomantic ideologies.

Institutional Constraints and Innovations: A Case Study of the Adjudicative Bureaus (fashenju) in Late-Qing China
Shiming Zhang, Renmin University of China, China

With the sharp empire- wide increase in cases that resulted from the Jiaqing reign (1796-1820) emperor lifting the prohibition on appeals to Beijing, the longstanding scarcity of governmental resources in the Qing dynasty went from bad to worse. In order to mitigate this embarrassing situation, provincial governors drew upon resources from the traditional judicial administrative system and instituted temporary, informal “Adjudicative Bureaus” (Fashenju). Because the Adjudicative Bureaus proved to be more efficient in reducing the case backlog, and their internal staff and adjudicative procedures steadily developed and matured, this ad hoc institution evolved into a specialized branch of the traditional judicial system. A case study of the Adjudicative Bureaus shows that although the late Qing judicial reforms borrowed many elements of the Western legal system, the process of legal reform also drew upon important resources and inspirations from the indigenous tradition. This study thus historicizes both the changes and continuities of the late-Qing legal reform.

Reinventing the Coroner: Legal Reform and Forensic Science during the New Policies Reform Period, 1908-1911
Daniel Asen, Rutgers University, USA

The New Policies reform period (1901-1911) saw institutional changes in many areas of late imperial governance. During the second half of the decade, Qing officials laid foundations for a modern court system and drafted new legal codes. This paper explores an understudied aspect of the reforms: a short-lived attempt to modernize the system of coroners carried out in 1908-1911. During these years provincial officials established new training institutions and instructed coroners in rudimentary medical science. More radically, the reforms attempted to elevate the office of the coroner from a “mean” occupation to a specialized position with corresponding social status and official rank. This reform reflected anxieties about the status of the Qing legal system vis-à-vis those of Japan and the West. Yet, this attempt to improve the quality of coroners by raising their official status – not just instructing them in new kinds of scientific knowledge – drew on older ideas about the ways that the low status of yamen functionaries impeded sub-bureaucratic governance and the social measures, not just specialized training, that would be necessary to make them reliable experts. This case demonstrates the complex motivations and resources that shaped reform efforts during a period of dynamic institutional and intellectual transformation. Ultimately, by valorizing scientific expertise while leaving late imperial forensic institutions intact, the reforms embodied conflicting imperatives that would continue to throw into question coroners’ status and expertise after the fall of the dynasty.