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The Book of Hard Cases By Steven Mufson
The Book of Hard Cases
Steven Mufson on the discovery of the Dead Sea Scrolls of Chinese law.
In 1983, in the Hubei province of central China, a group of workers stumbled across an ancient tomb while unearthing material for a brick-making factory. The tomb belonged to a Han Dynasty official who had died two millennia earlier. The crypt had been tightly sealed, and contained hundreds of well-preserved documents written on bamboo strips. In the head compartment of the tomb lay an intriguing bundle of 227 strips that had been placed inside a bamboo casket, suggesting its importance to the official. The bundle, which appeared to have originally been bound together with cords, bore the title The Book of Hard Cases.
The book was a curious collection of 22 legal cases. Nineteen dated from either the Han Dynasty (206 b.c.- a.d. 220) or its immediate predecessor, the short-lived Qin Dynasty (221 b.c.-206 b.c.). Of the remaining three cases, two dated from what the book called "former times"the so-called Spring and Autumn period (771 b.c.-401 b.c.)and one appeared to be fictional. The subject matter of the cases was a hodgepodge, ranging from government corruption to slavery, from the crime of adulterating royal food to the sexual freedom of a widow. The cases had been contentious enough that high-ranking legal authorities had reviewed and ruled on them, yet some lacked information about the verdict. In their succinct, compact style, the cases resembled introductory abstracts to modern U.S. Supreme Court cases. But they were also written with careful attention to detail and with passages of realistic dialogue from the parties involved, including officials, laymen, and slaves.
It was not immediately clear whether The Book of Hard Cases was simply an idiosyncratic personal document or something more authoritative. But over the past two decades, archaeologists and others have found remnants of several other, virtually identical, editions of the book among dozens of Chinese tombs from the same era. The Chinese government has issued a transcription of the document, and scholars of several nationalities are wrestling with its significance. The existence of multiple ancient copies, however, leads many to venture that the book was an official or semiofficial reference work for magistrates in the early years of the Han Dynasty.
Susan Roosevelt Weld, a scholar of Asian legal history at Harvard Law School, is one of a few researchers to have translated The Book of Hard Cases into English, a project that she is on the verge of finishing in book form. She notes that The Book of Hard Cases is particularly interesting because it dates from a crucial transitional moment in Chinese legal history, when the leaders of the Han Dynasty were attempting to moderate a famously rigid and draconian system of law enforced in the Qin.
By some measures, the Qin Dynasty had been a great success. It managed to unify China after a period dominated by warring feudal states, and distinguished itself with its intense concern about the stability of the state. But in some ways this concern became an obsession. Dogged in its efforts to achieve order, the Qin imposed a uniform code of written laws to be strictly interpreted by government officials and to severely punish those who violated them. A network of magistrates investigated and prosecuted cases, torture was common, and collective punishments were often inflicted on entire families.
But despite their authoritarian, top-down, and uncompromising idea of the law, Qin officials were forced to confront the inevitable: situations where broadly worded statutes required flexible interpretation in order to be applied to specific, real-world conflicts; and cases where initial judgments by the authorities seemed to beg for review by higher officials. (In keeping with its desire to maintain order, the Qin was concerned with at least the appearance of fairnessreason enough to review some of the cases decided by local magistrates.) Cases from the Qin Dynasty are the most heavily represented in The Book of Hard Cases.
Weld suspects that "hard" cases like these would have been of great interest to magistrates in the Han Dynasty, which envisioned itself as a kinder, gentler version of the Qin. Having overthrown the Qin, the Han repealed some of its predecessor's sternest laws, moderating severe punishments, lightening tax burdens, and loosening restrictions on conscript laborers. The Han also strove to restore some elements of the Confucian practice of using moral principles, examples, and persuasion in governing. As the Australian scholar Simon Leys explains, Confucius, who lived three centuries before the Qin, "had a deep distrust of laws" because he felt they invited people "to become tricky," rather than to behave virtuously. The Qin had brutally tried to silence that line of thought by burning thousands of Confucian texts and executing hundreds of Confucian scholars.
The use of case-law collections similar to The Book of Hard Cases is by no means rare in Chinese history. Such compilations were important to the operation of the later imperial Chinese justice system, as well as the Supreme People's Court in contemporary China. Many of the cases in The Book of Hard Cases were decided by the highest legal powers in the empire, and as such would have been legitimate sources of law for Han magistrates. Other cases, though not sources of authoritative law in that regard, might have commanded respect simply by virtue of having been selected for inclusion in the volume. The Book of Hard Cases, Weld notes, "shows that China had already, at the dawn of its long dynastic era, evolved a 'case-law' style of reasoning to unify justice in the sprawling empire."
There is no firm documentary evidence that The Book of Hard Cases was an official state document, compiled and distributed for the purpose of establishing binding precedent. It's possible that it was more of an educational tool. But there is one reason to suspect that the cases served as at least semi-official precedents for Han magistrates, Weld suggests: The balance of cases seems to serve the concerns of a budding dynasty, like the Han, that still put a premium on measures of social control and on the strength of the state, even as it allowed for greater leniency in other contexts.
The cases in The Book of Hard Cases that endorse the strictest interpretation of the law (and the least leniency) often concern government officials accused of corruptionusing convicts for work on their private homes, accepting bribes from defendants' family members, stealing from public grain supplies. Similarly, the book promotes the strict application of laws governing social control, including laws requiring the registration of newly freed slaves and the conscription of people for military service.
The first case in The Book of Hard Cases, for instance, describes a tribesman named Wuyou who fled after a conscription order had been served on him. Even though it was later established that Wuyou thought he had paid an annual tax exempting him from conscription, the legal authorities ordered that Wuyou be sliced in two at the waist. The book includes several other cases like Wuyou's, in which liability was imposed strictly even though the accused had not necessarily acted in bad faith.
But many of the cases intimate a willingness to remedy abuses of the state against lowly individuals. The security of the state could not be bought at any cost. Consider the saga of Jiang the musician, who was falsely accused of conspiring with another man to steal an ox. It was a classic instance of forced confession, extracted by government investigators overly eager to solve the case. After being beaten, convicted, and sentenced to hard labor, and after his family was sold into servitude, Jiang was able to appeal his verdict and sentenceand win.
In Jiang's case, a commandant of justice re-evaluated the confession of a thief named Mao who had changed his account four times before finally fingering Jiang. During the appeal, both Mao and Jiang noted that they had been tortured during the investigation. Jiang withdrew his confession, and Mao renounced the bit of his confession that implicated Jiang. Judging from the detail and language of the report, the commandant was clearly moved by the severe scars on their backs. "We have examined Jiang and find on his back thirteen rope marks as wide as a finger, and smaller overlapping rope scars in groups of five, stretching from shoulder to waist, so many that they could not be numbered," his ruling said. In the end, the commandant ordered local authorities to redeem Jiang's family and guarantee the musician a government job and enough money to live on for the rest of his life.
The commandant also reprimanded the officials who tortured Jiang and Mao, noting that they "have all erred in their judgment; let their faults be investigated."