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The Concept 01 Doubt in T'ang Criminal Law Wallace Johnson Doubt in Western law ln the West those of us who are accustomed to the common law tradition of the English-speaking world or to the civillaw of the European nations agree that no one can be convicted of a criminal offense unless his/her guilt is established beyond a reasonable doubt. If the evidence is not sufficient to overcome this legal barrier to conviction, the verdict must be in favor of the defendant. Thus the usual outcome of a criminal trial is a verdict of guilty or not guilty. Only in Scots law is the third decision of 'not proven' possible. But even in such cases the defendant suffers no punishment, so that, in effect, the verdict of 'not proven' is the same as 'not guilty'. The second concept, that of doubt as to what law is applicable or what a law actually means, is somewhat more familiar to us. lndeed, such questions are often the principal reasons put forward for review of any particular case. But in Chinese law, at least in the earlier part of the imperial period, provisions for both doubtful crimes and doubtful cases were actually written into the codes. Doubt in Chinese law prior to the T'ang dynasty The earliest teχt known to me in which provision is made for doubt as to whether a person actually committed a crime or not is found in the Book of Documents (Shu ching 書經). ln the 'Lü hsing' 呂 ft'J chapter of that work the following statement occurs: 271 17. In doubtful cases of the five punishrnents there is condoning; in doubtful cases of the five redernption fines there is condoning. May you investigate it. You should ascertain and verify and (have the rnultitude =) act in concert with public opinion; you should (hairfinely =) rninutely rnake investigation. If (the guilt) is not ascertained, you should not (listen to =) deal with (the case). You should all stand in awe of Heaven's rnajesty. -18. When the punishrnent of black-branding is doubtful and rernitted, the redernption-fine is 100 hu的1 weights (of bronze); but one exarnines and verifies the crirnes. When the punishrnent of nose-cutting is doubtful and rernitted, the redernption-fine is double (i.e: 200 huαn); but one exarnines and verifies the crirnes. When the punishrnent of leg-cutting is doubtful and rernitted, the redernption-fine is the (sarne) double plus the difference (between single and double) (i.e. 300 huan); but one eχarnines and verifies the crirne. When the great punishrnent (i.e. death penalty) is doubtful and rernitted, the redernption-fine is 1000 hu仰 but one exarnines and verifies the crirnes.1 Further, the Book of Rites (Li chi 禮記) states: 'When a crime is doubtful, consult the multitude of people. If the multitude have doubts, then release the accused.,2 The second concept is that of doubtful cases. And here the earliest reference comes from The Book of Lord Shang (Shαng-chün shu 商君書) : Whenever governrnent officials or people have questions about the rneaning of the laws or rnandates, to ask of the officers presiding over the law, the latter should, in each case, answer clearly according to the laws and rnandates about which it was originally desired to ask questions, and he should, in each case, prepare a tablet of the length of 1 foot 6 inches, on which should be distinctly inscribed the year, rnonth, day, and hour, as well as the iterns of law about which questions were asked, for the inforrnation of the governrnent officials or of the people.3 Here the question is not one of doubting whether a person has committed a particular offense but rather of understanding what the law means. In the recently discovered texts from Ma-wang-tui in the People's Republic of China, a whole section of the Ch'in laws seems to be either questions that the official (in whose tomb these documents were found) asked of his superiors or those which he answered for officials beneath him or the common people.4 Bernhard Karlgren, The Book of Documents (Stockholm, 1950), p. 77. S是raphin Couvrel汀，此 ， Li ki ou Mémoires sur les biens仰nces et les cérémonies (paris, 1951), 1, 305-6. 3 J. J. L. Duyvendak, tr., The Book of Lord Shang (London, 1928), p. 328. See also the general discussion in Katrina C.D. McLeod and Robin D. S. Yates...

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