::: * Journal for Legal History Studies
*  Printer Friendly    Font Size  Font Size Small Font button Font button in the font Font Size Large Font button   

第27期 Issue: 27 period
Date: 2015/06

Articles Chen, Den-Wu From Yin-Lü (Music) to Fa-Lü (Law)—On the Xun-zi’s On Yue (Music) and theDevelopment of Chinese Legal Thought
Kishimoto Mio Moral Ethics, Agreements, and Subsistence: An Essay on Equitable Principles in Civil Justice during the Ming-Qing Period
Li, Xue-Mei “Forbidden” and “Punishment” in the Ming- Qing Faith inscriptions
Chan, Chao-Chin The Development of Confession in Criminal Procedure in Late Qing Dynasty and Early Republic of China: Focus
Wu, Hao-Jen How the Descendants of Chinggis-Khan abloished the death Penalty: An observantion on the Legal Sociology and the History of Mongolia
Articles & Replies Review Chen, Chung-Lung From the syetem of annual laws calibrate in Ch’in Dynasty to discuss the meaning of the “second year” within “The second year laws” in early Han Dynasty
Zhou Dong-prhg, Li Qin-tong The analysis of “Zhongqizhongzui, Qingqiqingzui”in the Tangminglv
Lau Nap-yin Anatomy of Data and Questions in the Study of Song Legal History

 


From Yin-Lü (Music) to Fa-Lü (Law)—On the Xun-zi’s On Yue (Music) and theDevelopment of Chinese Legal Thought


Chen, Den-Wu

Abstract


The Original of the Chinese law is a major issue of the Chinese legalhistory. The traditional scholars mainly focus on two aspects to explain— “ritual punishment” (Li-Síng) and “military punishment” (Pin- Síng). Nomatter which one among the two explanation should not ignored the important of Yue (Music).

This article argues that “music” plays an important role in theconstruction including the ancient political, social or cosmic order. Music often affected with the rise and fall of the imperial court. In the normative social order, the music should have equally important ceremonial function, and thereby affecting the conduct of Chinese Law.

The originally Lü means “music”. Lü is used to make music “instruments”. In the ancient times, Yue (Music) was one of an important ritual or religious activities, and with the coordination of social order and the cosmic harmony function during that time. In order to coordinate with such a harmonious state, Lü has its rule, and then derivative to other systems. Therefore, it let the significance of Lü extends from the “Music” to the “Law”.

In the pre-Qin Confucian thoughts, Xun Zi’s On Music inherited the musical thought since the Western Zhou Dynasty and then developed intospecific and complete music theory. For his comprehensive critique of the 從「音律」到「法律」──兼論荀子〈樂論〉與中國法思想的開展 31 Confucian counterattack Mozi’s Criticism Music thought. His musical thought and theory was inherited by Liji.Yueji, and then was completely absorbed by Yueshu in Historical Records. Therefore, the music theory of Xun-zi has the significance of past and future, even most can reflect on the Confucian spirit. Analysis Xunzi’s music theory can also understand his views on the relationship between “music” and “punishment”.

Keywords: FaLü (Law), YinLü (Music), Xun-zi, Mo-zi, Yue Lun (On Music), Confucianism

top

Moral Ethics, Agreements, and Subsistence: An Essay on Equitable Principles in Civil Justice during the Ming-Qing Period

Kishimoto Mio

Abstract


Scholars have long been arguing over the main basis of magistrates’ judgements in civil justice of Ming-Qing China. This article analyzes Ming-Qing officials’ way of thinking focusing on the three elements that guided their consideration----that is, “lijiao (moral ethics)”, “qiyue (agreements)”, and “shengcun (subsistence)”----, instead of long discussed “qing (human considerations), li (moral principles), fa (laws)”. Chapter 3 and 4 of this article respectively deal with lawsuits concerning land disputes and wife-selling. Through the analysis of these cases, this article argues that the relative importance of these three elements were different according to the kinds of disputes. In the land disputes, the qiyue element had priority, while in the wife-selling cases, the lijiao element was more emphasized. In any case, however, Ming-Qing officials used to take these three elements into consideration in order to pass the judgements that they thought equitable.

Keywords: civil justice, moral ethics, agreement, subsistence, equity

top

“Forbidden” and “Punishment” in the Ming-Qing Faith inscriptions


Li, Xue-Mei


Abstract


There are a large number of informal and formal laws among the Ming-Qing Faith inscriptions. Thereinto, the nongovernmental proscriptive steles demenstrate that choushenyishi (酬神議事) and yanxiliyue (演戲立約) is an important path to generate the informal laws. Apologetic action to pray to God is the most powful and informative punishment which civil society can imagine to violators. Meanwhile,governmental proscriptive steles contain a few of rules to forbidden some behaviors, such as illegal worship, blasphemy, self-sacrifice for God and embezzlement of temples’ property. It reveals the conflict and adjustment between realities and prohibitions about belief. at the same time, it also reflexs the close connection among divine constraint, prohibition law and proscriptive steles. All of above are indispensable means to govern society. Consequently, legal steels not only have the literature property that commonly existing in all steels , but also possess institution features, that other inscriptions do not have. Furtherly, the independence of lagal steels can be proved.

Keyword: Faith inscriptions, Divine punishment, prohibition law, Proscriptive Steles

top

The Development of Confession in Criminal Procedure in Late Qing Dynasty and Early Republic of China: Focus on Norms and Thoeries


Chan, Chao-Chin


Abstract


Except of translations of foreign legal structures and theories by the Legal Affair Bureau (Xiu Ding Fa Lu Guan), the Qing government also employed foreign scholars to assist in legislating. This article, which focuses on norms and theories, tries to discuss the development of the idea of confession in the criminal procedure. In norms, we can discover the development of the idea of the confession in the three criminal procedure codes, which the two formers were legislated in late Qing dynasty but were not in practice and the later one in early Republic of China, contra the formers. In theories, there was lots of Japanese theories form the scholars or judges as we know today. But time is dynamic. Even though it was the reception from Japan in that time, it still appeared different faces by times. To summarize it, I would like to tend to discuss the influences of reception in criminal procedure law form Japan in different period and re-think about the development of the idea of the confession during these period.

Keywords: zhao-gong (recognition), zi-reng-gong-ci (confession as recognition), confession (confession as identification), norms, theories

top

How the Descendants of Chinggis-Khan abloished the death Penalty: An observantion on the Legal Sociology and the History of Mongolia


Wu, Hao-Jen


Abstract


A relatively unfamiliar country to Taiwan, Mongolia, with its expansive territory and sparse population, is not only economically underdeveloped compared to Japan, Korea and Taiwan, but also politically untransformed until the early 1990s, when it finally began to undergo democratic transition from a one-party state. Be that as it may, Mongolia was the first East Asian country to abolish the death penalty. This paper aims to inquire into why and how Mongolia abolished the death penalty. In terms of why the death penalty was abolished, this paper argues from the perspectives of both the Mongolian legal sociology and history and the East Asian geopolitical history that Mongolia made the decision more out of its own practical and strategic concerns for transitional justice and national self-salvation than a pure respect for the international human right standards as well as the two major human right Covenants. In terms of how, the paper analyzed the process through which the Mongolian elite adroitly utilized legal interpretations to achieve the end at the lowest political cost by combining international, constitutional and criminal laws into one coherent argument. Last but not least, the paper discusses what lessons Taiwan might learn from Mongolia’s grand strategy of including human rights as an inseparable part of its national values.

Keywords: Mongolia, the abolition of death penalty, transitional justice

top

From the syetem of annual laws calibrate in Ch’in Dynasty to discuss the meaning of the “second year” within “The second year laws” in early Han Dynasty


Chen, Chung-Lung


Abstract


The early studied about“The second year laws”focused on the“second year”means the Han Emperor, the Hue Emperor or the Empress Lu?
Although most scholars considered the“second year”refers to the Empress Lu, but why put the year before the law? The answer is in the Calendar
List. The subtitle of“The second year laws”include two forms of laws. Most important of all are the words the“second year”, which means the
time. Why they used the time lined in front of the law? The theses try to give a reasonable explanation.

This article argues that“The second year laws”as a title related to the law calibrated which applied in the beginning of Han. There was a situation that the local officials must go to the central government tocalibrate the laws every year to made sure the correctness and completeness of the laws.“The second year laws”in the Tomb N.o.274, could be the family scripture or asked someone to script. But the script was not picking by random, it was basically on the laws which implement onEmpress Lu era. The tomb owner could be the official of the Jialing County, so the copyist found the laws of the certain year before the family buried the tomb owner. For the provision that the laws must be calibrated back to the central government, the Supervisor, though it had excerpts while in the script, but we can give highly expectation the correctness of  the laws.

Keywords: Han Dynasty, The second year laws, calibrate

top

The analysis of “Zhongqizhongzui, Qingqiqingzui”in the Tangminglv

Zhou Dong-prhg, Li Qin-tong

Abstract


“Zhongqizhongzui, Qingqiqingzui” was proposed Sun Xingyan (Qing Dynasty) when he wrote “reprint of the prologue of the law of Tang”. It is believed that 80 years before Xue Yunsheng, who was commonly thought to be the first one to raise this idea. This proposition is correct in an all point view. However, in some aspects, such as family salt, and the power of the emperor, it is different from this tendency. From Tang Dynasty to Ming Dynasty, the law has evolved with the character for many reasons: Zhu Yuanzhang’s experience; the economic situation of Ming Dynasty; the change of economic and political is in coherent with many criminal policies of our time, which can be viewed as a great treasure from ancient China for the criminal policies and legalization today.

Keywords: “Zhongqizhongzui, Qingqiqingzui”, Sun Xingyan, the law of Tang Dynasty, the law of Ming Dynasty, comparison between the law of Tang Dynasty and the law of Ming Dynasty, criminal policies

top

Anatomy of Data and Questions in the Study of Song Legal History

Lau Nap-yin

Abstract

The study of history is a discipline that trains us to find out questions of importance, and then to analyze and answer them.

Importance here means being important to the people in the past, not necessarily to us at present. Most of the important questions can be found in edicts, memorials to the throne, and legal cases, as people do not go to court for matters they considered unimportant. Concerning these sources, three points are to be heeded. First, their types must be differentiated. Usually the most carefully formed are the legislative data that they must be used first. Second, their nature must be clarified. Even of the same type as legislative data, laws and ordinances are different in nature, and thus varying in focuses. Third, whatever data at hand, researchers must first find out their internal logical structure and connections. Usually legislative data are sufficiently self-explanatory that we ought to “discover” instead of “create” their meanings. Reading data “out of context” should always be avoided.

In analyzing and answering questions, four points must be noted. First, a big question must first be broken down into medium questions and then into small questions in order to reveal how complex the big question isand how to cut into it. Questions concerning daily-life such as what property right a person may have can be analyzed by a common-senseapproach, and quite often by asking the six old historical questions: what /which, who / whom, when, where, why, how. Second, all major termsmust be clearly defined. Due to a mix-up of “concubine” with “maidservant”, some historians argued that concubines of the Song dynastybecame more and more like commodities, while others argued that they were more and more like family members. One way to tell them apart is to compare their rights and duties with those of a wife. Third, the differences between legislation and enforcement of law should always be born in mind. In the study of illegal temples, for example, we should never assert that legislators had not clearly defined what is illegal on the ground that legal enforcers had always failed to abolish certain illegal temples. There are numerous causes, such as corruption, that could have hindered the abolition. Forth, to see whether a ruling is based on law, the judgment on the offender and that on the defender must be weighed separately. Especially in disputes between family or clan members, the rights of the defender might be protected in full accordance with the law, but the crimes of the offenders might not be punished to the same degree. As such, law is stable and predictable to the defender but not necessarily to the offender.

Keywords: Study of the Song legal history, historical sources, important questions, research methodology

top

中國法制史學會、中央研究院歷史語言研究所主編

back top