- Legal Specialists and Judicial Administration in Late Imperial China, 1651–19111
This article studies the historical origin, legal training, career patterns, professional identity and ethics, judicial philosophy, and scale of professionalization of thousands of legal specialists in late imperial China from about 1651 to 1911. It is the first extensive study in English of these early modern Chinese jurists and legal professionals who were the de facto judges in probably most of the 1,650 Chinese local governments for more than two centuries. Based on archival sources, the article offers an estimate of about 3,000 such trained legal specialists working in local Chinese courts in any given year from roughly 1711 to 1911, which means an estimated total of 30,000 for that period as a whole. The article points toward a rethinking of the received wisdom on late imperial Chinese legal culture and judicial administration, as well as their legacy on modern China’s drive for the rule of law.
Revisionist scholarship over the past four decades has seriously challenged earlier representations of the legal system in late imperial China as backward, irrational, and/or incommensurable with western or modern notions of law and justice. We now have a far more nuanced understanding of many aspects of pre-1911 Chinese legal culture and judicial practice.2 Nevertheless, more [End Page 1] research is still needed about other facets of the Chinese legal tradition. For instance, we have only relatively limited knowledge about why and how scholar-officials in late imperial China, apparently with no systematic legal education, could administer one of the most sophisticated legal systems in the world. This article, part of a larger book project, is a preliminary step to address this under-studied question by investigating the rise, training, social status, professional identity, and legal thinking of the thousands of legal specialists that had become the backbone of Chinese judicial administration by 1700.
The roughly 1,600 local administrators in Qing (1644–1911) China—ranging from county magistrates (zhixian) through prefects (zhifu) and circuit intendants (daotai) to provincial governors (xunfu)—were also technically the chief judicial officers in their jurisdictions even though most of them were appointed not for their legal knowledge but for their success in passing the civil examinations. As William Alford has noted, the resulting perception that there was neither “separation of powers” nor legal expertise among these local officials/judges has greatly contributed to the popular stereotypes in the west about late imperial Chinese law and justice.3 This issue has not been tackled in the recent series of fine studies on late imperial China, but the fact that most local Qing administrators entrusted their judicial work to legal specialists would call for a rethinking of late imperial Chinese law and society.
From early on, as will be shown, it became a nationwide practice for Qing local officials to hire different types of muyou—literally “friends in the tent or behind the curtain”—as private advisors to help perform their official duties. As early as 1847, Thomas Meadows (1819–69), a British Sinologist and consular officer, observed: Xingming muyou (in charge of “the criminal law”) and qiangu muyou (in charge of “the fiscal law”) “properly comprise the judicial advisors” and “are the only people in China who devote themselves solely to the study of the law, and in so far, they resemble our barristers and sergeants-at-law.”4 Although numerous modern scholars have likewise noticed their importance to local judicial administration, no one has yet undertaken a systematic study of them as legal specialists and of their role within the Qing legal system while the [End Page 2] few Chinese works that have discussed them more extensively did not consult the relevant archival sources.5
Qing local officials also hired other types of muyou such as zhanghao/haojian (registering), shuqi/shuji/shubing (writing), and zhengbi/zhengshou (tax collecting), but xingming and qiangu muyou were the most essential to local administration and enjoyed a much higher social status and received higher pay than the others.6 Etymologically, the Chinese compound xingming had been widely used by the first century B.C.E. to designate Legalist (fajia) philosophy...