A Question of Intent: Homicide Law and Criminal Justice in Qing and Republican China by Jennifer M. Neighbors (review)

This book is the latest in-depth archival study in Chinese legal history from a member of what has become known for the sake of convenience as the "Californian School of Chinese Legal History" (originally led by Philip Huang, Kathryn Bernhardt and their associates, most of whom taught at or obtained their doctoral degrees from the University of California at Los Angeles). Drawing upon a large quantity of judicial records from Qing and Republican China from the 18^th to 20^th centuries, Neighbors' work revises the prejudicial views of the legal system and legal culture of imperial China held by Weber and his adherents. According to those views, imperial Chinese laws were arbitrary, situation-based and penal in nature, lacking the systematic conceptual underpinning that characterizes the 'rational' law of the 'modern' West. The Chinese legal system therefore fit the Weberian image of the absolutist state, offered in contrast to the modern Western emphasis on formality and rationality in the legal system. By demonstrating that Qing imperial law conceptualized the homicide offense in a far more sophisticated way than European law, and did so much earlier, Neighbors powerfully shows that "Weberian assumptions about not just the nature of Chinese law but also about the nature of legal modernity are faulty" (p. 123).

Chapter 1 deals with the lowest end of the homicide continuum where the killing was not intentional: guoshi sha (過失殺 negligent killing) and xisha (戲殺 killing-at-play). Although both offenses lack any element of intent on the killer's part, imperial Chinese law took the view that such ofenders should still be held responsible for the life that had been taken away. Chinese jurisprudence used the concept of foresee-ability to differentiate between the two. Victims of negligent killing were those who had lost their lives in unexpected circumstances or in an accident such as being run over by a horse that was supposedly under the control of the ofender. Victims of killing-at-play, in contrast, had died as a result of play that was known to be capable of resulting in death, such as "boxing or fencing" (p. 38). In such cases, the perpetrator could clearly have foreseen the potential loss of life during play despite such loss never being intended. Using the fine conceptual grading of foreseeability, Qing law thus awarded the lightest sentence to the perpetrators of negligent killing (strangulation subject to redemption by a fine) and a heavier sentence to those convicted of killing-at-play (strangulation after assizes). Republican-era criminal law, in contrast, simplistically classified homicide into two categories based only on the presence of intent, intentional killing and negligent killing, a categorization that forwent the criminal culpability for killing caused by recklessness contemplated by xisha under Qing law. By narrowing the scope of punishable acts, the transplanted criminal law regime in Republican China curtailed the paramount emphasis placed on human life by imperial Chinese law.

Qing law not only stressed the presence and absence of intent in dealing with homicide; it also dealt with the degree of intent and the behavioral circumstances surrounding the killing to form a sophisticated conceptual continuum of intent in homicide offenses. The Republican China criminal code transplanted from the West, in contrast, featured a simple conceptual binary division: intended killing where intent was present and negligent killing where it was absent. Such a conceptual shift also caused Republican homicide law to lose another act punishable in the Qing era: douou sha (鬥毆殺 killing in an affray). Douou sha was a "conceptual gray area between intent and negligence in Qing homicide law" (p. 95), Neighbors explains. Although killing that results from a fight is not intentional killing, the possibility of someone being killed during a fight is foreseeable, and hence those involved bear greater criminal responsibility than those whose actions result in the accidental or negligent killing described in the preceding paragraph. In Republican...