- Writing and Law in Late Imperial China: Crime, Conflict, and Judgment
For the past two decades, historians have been fruitfully mining the legal case records first made available in Chinese archives in the late 1980s. Although this material has greatly expanded our knowledge of traditional Chinese law, society, and culture, using these case records entails no small degree of frustration. While case records bring us tantalizingly close to the lives of everyday people, the voices with which they speak are never direct. Rather, they must be read through veils of narrative manipulation on the part of those who came to the magistrate's yamen seeking redress for their grievances, the scribes or litigation specialists who composed their plaints, and judicial officials who edited plaints, testimony, and their own decisions before passing a case report along for consumption in the higher courts. Each of these stages involved the strategic shaping of language and appeals to normative values in order to achieve the desired outcome for any given case.
This pathbreaking conference volume addresses this aspect of legal writing directly by making the textuality of case records the primary object of analysis. In what amounts to a conversation among seven historians and five literary scholars, the articles explore not only the constructed nature of legal case records as literature, but also the role played by law in literature as well as in religious rituals. As Robert Hegel states in his introduction, the volume has no single analytic or theoretical approach other than "a humanistic concern for the contexts in which judicial procedures occurred and were described in writing" (p. 19) along with an awareness of how deeply law was embedded in its social context. While this objective makes for an admittedly disparate collection of chapters, it also presents an enticing vista onto new and quite promising research.
Along with Hegel's introduction and a retrospective conclusion by Jonathan Ocko, the text is divided into three parts, each of which explores specific narrative structures, tropes, and discursive elements found in legal writing, primarily from the sixteenth through the nineteenth centuries. The first section, "Rhetoric and Persuasion," offers essays by Maram Epstein on the portrayal of filial sons in legal cases, Janet Theiss on the image of the shrew and its implications for values of masculinity, Yasuhiko Karasawa on the relation between oral and written cultures, and Hegel on the use of rhetorical questions to exemplify ethical positions. The next section, "Legal Discourse and the Power of the State," presents essays by Thomas Buoye on the role of filiality and the judicial impulse toward leniency in legal reasoning; Pengsheng Chiu on the discourse on insolvency and negligence in the service of long-distant merchant interests; Mark McNicholas on poverty tales, [End Page 126] fraud, and political crime; and Paul Katz on indictments made to the courts of the underworld. Finally, "Literature and Legal Procedure" includes essays by James St André comparing the rhetorical strategies employed in case records and popular legal fiction, Daniel Youd on moral ambiguity in late imperial literature, and Katherine Carlitz on popular concepts of justice as reflected in three diachronic literary treatments of a single case of mass murder.
While scholars of British and American law have been exploring the relationship between law and literature for some time, this volume is the first to bring together scholars using a similar perspective on traditional Chinese legal writing. If the suggestiveness of the work here is any indication, the Chinese context is well suited for this sort of analysis. In his own chapter, for example, Hegel begins by reminding us that judicial officials, from the magistrate upward, all edited and refined case reports in a manner that underscored their competence as administrators in the eyes of superior officials. Magistrates, in particular, were motivated by career considerations to portray their jurisdictions as law abiding and harmonious until such harmony was disrupted...