- Judicial Reasoning in the Southern Song
This essay is an attempt to study the reasoning of the judgments (written during the first half of the twelfth century) collected in the Qingmingji 清明集 (Enlightened Judgments), which appeared towards the end of the Southern Song (1127–1279). The edition of this work published in 1987 has an added value, since it contains in appendices decisions from Song magistrates, such as Huang Gan 黃榦 (1152–1221), not reported in the collection itself.1 Sources such as the Songshi 宋史 (History of the Song Dynasty) also contain accounts of legal cases but do not give the judgments delivered at first instance, being primarily concerned with issues of sufficient importance for debate by the court and central authorities.2
Most of the cases in the QMJ are those which in the West are termed “civil,” but some “criminal” cases are also included. There is a problem in applying the Western distinction between “civil” and “criminal” to traditional Chinese legal material, since a dispute classified as “civil” in the West may appear to be treated as “criminal” in China, in that it involves offences entailing punishment. Nevertheless, it is useful for the purposes of exposition, to term Chinese cases dealing with disputes over property, inheritance, marriage, and [End Page 107] the like as “civil,” and those dealing with serious offences such as homicide, assault, theft, arson, and the like as “criminal.”3 For our purpose (the study of reasoning) the distinction between “civil” and “criminal” should not be pressed too far. In the first place, a number of cases which deal with predominantly “civil” matters also disclose the commission of “criminal” offences, and, in the second, even the predominantly “criminal” cases share some of the features of the reasoning found in “civil” cases. Perhaps the main difference is that the notion of renqing 人情 (human feeling) characteristically appears in “civil” and not “criminal” cases.4
The judgments in the QMJ are those given by officials in actual cases, although they might well have been rewritten with a view to publication. The compiler may have intended the book to be a training manual for future magistrates, providing them with models of legal writing.5 We cannot rule out the possibility that some rhetorical flourishes or literary embellishments may have been introduced. The point has to be born in mind, when we try to assess the language in which judges describe the behaviour of the parties or express their decisions. Obviously, mere rhetoric or literary conceit has to be discounted. Yet, the extravagance of language sometimes deployed, or the profusion of different terms utilised to achieve the same general effect, [End Page 108] does not, on the whole, appear to be empty. Judges, albeit forcefully, are still intending to make a substantive point.
The authors of the judgments, when identified, occupy varying positions in the official hierarchy. Some are district magistrates, but many are higher ranking supervisory officials acting as prefects or circuit commissioners. All these officials, even when acting in a judicial capacity, saw their role not simply as to interpret and enforce the law. They were equally concerned to “educate” the parties and the wider public, to make clear to them the right way to behave, especially in the context of their family relationships. Sometimes, indeed, the judgments as given in the QMJ look more like moral disquisitions than applications of the law. One has to remember, however, that the exhortations may represent the final stage of a long and complex process. This process involved two different procedures conducted by different officials, one concerned with the establishments of the facts and the other with the identification of the relevant laws. The officials responsible for identifying the relevant laws would make their results known to the official who had heard the case and he would then take them into account when formulating his final judgment.6 His decision would have taken full account of the law, even though the final version made scant reference to it.
Song magistrates belonged to the educated elite, whose way of thinking about the world was conditioned by the Neo-Confucian doctrines prevalent at the time, in particular those advocated by Cheng Yi 程頤 (1033...