《郭店楚简国际学术研讨会论文集》目录

 

Guodian and Baoshan:Legal Theories and Practices

Susan    Weld

October,1999

Introduction

We live in an age when archaeologists almost daily uncover new evidence about China's axial age,the half millennium preceding 221 B.C. during which s ome of the basic elements of the Chinese cultural order took shape. When the excavator's sh ovel uncovers early versions of the root texts of the classical canon, as in gra ve #1 at Guodian, in 1993, even non-specialists sit up and take notice, for such  discoveries tend to undermine the broad-brush skepticism of the yigu, or doubting antiquitymovement of this century and restore luster to th e Chinese tradition. More important than rediscovered classics, however, for tho se who are curious about the society that produced them, are the many legal and  religious documents found in the same cemeteries. These texts smell more of life . Like cases, contracts and court records today, they are filled with human deta il: the names and residences of the plaintiffs and defendants, the identities of  the specific spirits addressed and the exact size of the sacrifices offered to  them,the exact dates on or before which named people were to accomplish assigned  tasks, the exact amount of debt out-standing, the exact boundaries of the lands  referred to, the exact number and kind of grave furnishings laid in the tombs.  One must look to documents like these to understand the living context in which  the classics were produced and transmitted.

This paper will try to respect the integrity of the archaeological evidence foun d in the environs of the late Warring States Chu capital of Ying by focussing on  the excavated texts themselves, rather than their relationship to the received  texts, and expanding the focus beyond grave #1 at Guodian to include other writi ngs found in contemporary graves in the same cemeteries. Taken together, these t exts-including the legal documents from Baoshan, the religious records from Baos han, Wangshan and Jiudian, and the Ejunqijie, as well as the philosophical writi ngs from Guodian-reveal something of the theories and practices of government in  the kingdom of Chu at the turn of the fourth century B.C.

In the first part of each section, the paper will argue that the texts found at  Guodian can be understood to describe elements of a philosophy of law-a philosop hy concerning the four key themes of any legal philosophy: human nature, modes o f social control, the judge's ethic, access to transcendent authority a nd the le gitimacy of the state. Since the Guodian texts are not necessarily consistent wi th each-other, or even within each section or essay, as arranged; it seems prude nt to consider the ideas presented in them simply as elements of legal theo ry①. However, the paper will argue that the elements so glimps ed reflect an intelligible attitude towards law. The second part of each section  will test the legal philosophy deduced from the Guodian texts against informati on from other Chu excavated documents. This evidence suggests that the sprawling , fourth century Chu state was consolidated less by top-down mandates than by en forcement of procedural rules of royal justice, allowing for fair resolution of  disputes between individuals and families. It also shows that the appeal to tran scendent authority played an important part in ensuring the justice of legal pro ceedings and thus legitimating the Chu state. One institution throu gh which transcendent guarantee of justice was secured was meng, oath  or covenant: we have archaeological evidence of the ritual context and contents  of this institution from a somewhat earlier period in the state of Jin.

1. Elements of a Legal Philosophy in the Guodian Texts

       A. The Nature of Humans.

       The root of any philosophy of law lies in its assumptions about human nature . The essay given the title of Xing zi ming chu , or The Nature Derives  from the Mandate by the editors of the Guodian texts offers clues about these  assumptions. The sentence from which the editors took the title asserts that the  shared potential of the human xing or Nature, has a transcendent so urce:

       The Nature derives from the Mandate,

The Mandate is sent down from Heaven.[Strips 23][ZK)]

Although humans in general are endowed with Nature, this shared property is capa ble of development in any direction: it is not oriented to any particular end. Not defined in advance, the human potential of each person's Nature  is realized b oth by its internal development and by its response to influences from outside:

        Although human beings in general have an [inborn] Nature,

The Heart (xin) lacks a fixed Will (zhi);

It depends on Material Things to become active;

It depends on Pleasure to proceed;

It depends on Practice to become fixed.[Strip 1]

Thus, while the attribute of Nature is universal, in that everyone has a Nature  and all natures derive ultimately from the same source, Heaven, human Nature is  also almost infinitely responsive to its environment, infinitely malleable:

The Nature contains the qi [primal stuff of ple asure, anger and the passions;

when it is manifested on the outside, it is because Material Things seize it. [ Strip 2]

The human emotions, or Dispositions (qing) are rooted in the Nature,  the Way (dao), or process of perfecting human Nature, has to begin wi th these:

       The Way begins in the Dispositions;

The Dispositions themselves are born out of the Nature.

In the beginning, close to the Dispositions;

In the end, close to Righteousness. [Strip 3]

This sentence summarizes the essay's over-all thrust: it is not mer ely a static  exposition of a particular understanding of human nature, but a theory of how th e initially undirected Nature can reach perfection, defined in terms of the abst ract concept of Righteousness - a concept we will see reappear as one in va rying lists of the virtues in the Guodian slips.

Elaborating on the different ways that the Nature may be influenced, the essay c ontinues a few strips farther on:

In general, the Nature may be moved, encouraged, engaged, polished and sharpened, expressed, nurtured and extended.

In general,

That which moves the Nature is Material Things;

That which encourages the Nature is Pleasure;

That which engages the Nature is Purpose [or Cause];

That which polishes and sharpens the Nature is Righteousness;

That which [affects] the expression of the Nature is Circumstance;

That which nurtures the Nature is Practice;

That which extends the Nature is the Dao.

Each of these influences is further explained as follows:

       In general,

That which is visible is called a Material Thing;

That which makes one happy is called Pleasure;

The environment of Material Things is called Circumstance;

Having a reason is called Purpose.

As for Righteousness, it is the criterion of the various Excellences;

As for Practice, it is for the exercise of one's Nature. [Strips 9 14]

The Dao includes the Dao of all Things,

As to the Dao in general, the Arts (shu) of the Heart take  first place,

Thus, while the Dao comprises four Arts,

Only the Dao of humans may be followed ②.[Strips 1 415]

This compact analysis of the various ways in which human Nature may be influence d focuses on benign influences: there is no mention of the project of seeking to  coerce human Nature from outside. While Righteousness figures as a way of shapi ng the Nature by offering a standard for excellent behavior, and the language us ed to characterize its influence uses the craftsman's metaphor of p olishing or s harpening, it is presented more as a model than an external mode of coercive con trol.

The essay then explains the origins of the Classics and the important role of th e teaching of the Classics in a program designed to influence human Nature:

The Odes, the Documents, the Rites and the Music were initially produced by humans. The Odes were composed by the accomplished③,

The speeches in the Documents were spoken by the great;

The Rites and the Music were performed by the heroic.

The Sage compared the varieties of these writings and assembled them in cat egories;

He inspected their inherent order and arranged them accordingly;

He made their [ideas of] Righteousness concrete and ranked them;

He [judged] the Principle behind their Dispositions (qing) and  selected among them.

Only then did he return to teach them.

Teaching is the means whereby Virtue (de) may be aroused in the  [hearts of] the People.[Strips 1518]

In this formula, Virtue is elicited from, not imposed on, the People.

After an exposition of the key role of music in eliciting the full expression of  human Dispositions, the argument notes that in the matter of self-perfection, t he Heart is the quarry, and success should not be judged on the basis of acts or  accomplishments:

       For those who Study, seeking the Heart is most difficult;……

Although one may be accomplished,

Yet cannot reach the Heart, [accomplishment] is not to be valued. [Strip s 36,37]

Reaching the Heart involves giving full rein to the Dispositions:

       In general, human Dispositions may be pleased.

If a person's Dispositions are followed, even excess is not to  be despised;

If a person's Dispositions are not followed, [accomplishing]  even the hardest task is not to be valued. [Strip 50]

While this passage does not take a dogmatic position on the issue of the good an d evil in human Nature, it assigns a Dr. Spock-like positive value to the full e xpression of human Dispositions: perhaps an Early Chinese version of expressi ve individualism .

Finally, two sections included by the editors towards the end of the essay hint  at how this theory of human psychology affects government. Strips 5153 suggest   that a single person with a fully-expressed, noble Disposition could be enough t o establish the perfect state: the people would have faith in his words even bef ore he spoke, know how to behave even without instruction, be inspired even with out rewards, be in awe even without punishments, value him even though he lived  in mean circumstances and flock to him even despite his poverty. The person who,  by perfecting his Dispositions can achieve this kind of self-executing, m inimalist government, is said to possess the Dao

The fully-cultivated Nature of the junzi can thus form the Heart of a   perfect realm: the influence of his perfected Nature spreads to the populace thr ough his perfect performance of the rituals of everyday life:

The junzi, in holding fast to his Will,must keep an open heart;

In speaking, must be scrupulous about following up in Good Faith;

In acting as host, must present a demeanor of Solidarity;

In sacrificing, must display a complete Respectfulness;

In presiding at funeral, must express unfettered Sorrow.

The junzi can in himself become the Commanding Heart. [Strips 6567 ]

The most important way in which the texts found at Baoshan can be understood to  reflect this view of the nature of humans is the apparently free access to the king's justice to solve disputes. Unlike later collections of cases  from the impe rial period, the collection of song, or accusations included in the  Shuyu bundle includes many examples of individuals' suits against each oth er. [Strips #80, ff]. The wrongs complained of range from murder [##83,84,86, 90,95,96] personal injury [##80],and kidnapping [#89,92,93,97] to trespass [#91], other wrongs relating to property [#81,82,94,101,] and money or debt [#98,], to wrongs against official authority [#88,99],and finally, wrongs ag ainst the duty to judge fairly [#102].The presentation of all these suits in o ne collection as Records of Suits suggests that there was no distinction at  the time between crimes and wrongs like torts or property offenses. Like civil  suits in modern systems, all of these wrongs seem to have been addressed at the  initiativ e of the victim, or, in the case of murder, his or her family. This collection t herefore implies that all suits were in this sense civil: the victim, not the st ate, had ownership of his accusations. If true, the Chu legal system differed ra dically from that of the post imperial period, in which one is sometimes hard-pu t to recognize civil cases at all ,translated, as they were, into a criminal for mat of the state against the wrong-doer.

Whether this system was the result of underlying philosophical theories of law,  or simply the only practical way to keep peace in a vast territory covering popu lations of many ethnicities, is hard to say. One can say that the Courts seem to   have been forums for the individual to gain justice, to solve disputes before th ey could disturb the peace, rather than tools to enforce abstract state mandates .

B. Modes of Social Control

The theories of social control in several of the other Guodian essays seem to fl ow from the Xing zi ming chu view of human nature: rather than penal co erci on, and intrusive, top-down direction of the people, order is to be achieved in  the state by a kind of human sympathetic magic: by a junzi's  personal  modeling of virtue. In government, the ruler has a particular duty to display p ersonal virtue:

Respect Virtue and Righteousness;

Illuminate the ethical norms for the People;

This may be used to become Lord.

Anger and Indulgence reined;

Perfection in reforming oneself;

This is the duty of the Ruler of Men. [ Zundeyi , Strips 1]

Because the Nature of humans is so malleable, so responsive to both moral and im moral leadership, the ruler's personal behavior determines the resu lt of his rule:

Yu followed the Way of humans in ordering his People;

Jie followed the Way of humans in bringing chaos to his People.

Jie did not change Yu's People and then throw them into chaos;

Tang(Yu) did not change Jie's People and then order them.

The Sage's ordering of the People followed the Way of the People.  [Strips 47]

Neither purely intellectual explanation nor coercion will succeed in getting the  People to follow the Way:

The People may be caused to follow it,

But cannot be made to understand it;

The People can tread it,

But cannot be coerced. [Strips 2122].

As to what will be effective in leading the People to the Way:

Only Virtue will suffice.

The spreading [influence] of Virtue

Is faster than the transmission of commands by the Royal post:

There is nothing truer than its message.

When people meet, there are none who do not know of it.[Strips 2829]

The reason for the efficacity of the ruler's personal virtue is tha t human behav ior is less determined by command and response than by observation, imitation an d sympathetic involvement:

Inferiors, in serving their superiors,

Do not follow their orders, but rather imitate their behavior;

If the superior loves something, those below will be deeply affected. [Strips 3 637]

The essay given the title of Chengzhi wenzhi by the editors links this almo st mystical power of the ruler's personal example to the Great Norm (da chang) sent down by Heaven:

Heaven sent down the Great Norm to bring order to human relationships.

It regulates the Righteousness between Ruler and Subject;

It manifests the Family love between Father and Son,

It clarifies the Distinction between Husband and Wife……

The junzi brings order to human relationships by conforming to  Heaven's Virtue.[Strips 3132]

The location of this law sent down from Heaven is not in a text, like the ten co mmandments in the Bible, but in the heart, person and behavior of the Sage:

What did it mean when the Great Yu said:

   Wherever I dwell, my habitation is Heaven's Heart.

This means Although I dwell here, I am yet at home in Heaven's H eart .

Thus, the junzi may be seated on the dais,

But will yield to accept a place in obscurity;

He may have a place at court,

But will yield it to lodge in lowliness:

His [true] habitation is never far.[Strips 3334]

……

What did it mean, when in ancient times, the junzi said:

The Sage [embodies] Heaven's Virtue ?

This means: he scrupulously seeks within

And can perfectly accord with Heaven's Norm. [Strips 3738]

An aspect of the Sage's ability to embody the Great Norm is that he  does not nee d to depend on the trappings of power. The theme of a Sage's ability to be power ful without insisting on protocol is also reflected in familiar sections include d in the Guodian Laozi chapters:

The reason that the Rivers and Seas can lord it over the myriad valleys

Is that they are able to be below the myriad valleys;

The Sage takes precedence over the People

By putting his person behind them……[Strips 25]

In this context, however, the trope is used to describe a device for holding pow er successfully, rather than as proof of the human internal channel to a t ranscendent source of norms.

The Chengzhi wenzhi essay returns again and again to the theme stated in t he Zundeyi: coercion will not work to establish order in the state.

For this reason, if he lacks it in his person, while enforcing it in his rule,

Although he may pile on the commands, the People will not follow.

For this reason, the multiplication of fines and mutilating punishments to cow[them],

Comes from the ruler's failure to [look to] himself.

In ancient times, the junzi said:

It is by War and the Punishments that the Ruler destroys his Virtue .[Stri ps 46]

On the issue of coercion, the texts found at Guodian that coincide with chapters  of the received Laozi again tend to agree:

Weapons are not the instruments of the junzi

He uses them only when there is no alternative……

Therefore if one kills men in great numbers,

One should grieve for them with compassion;

One should mark military victory

With the mourning rites. [ Laozi C , Strips 610]

The essay assigned the title of Zhong xin zhi dao , or The Way of Loyalt y and Good Faith , demonstrates how order in the state requires the ruler to i mbue his attitude towards the people with zhong and xin. The ordinary translation of zhong as Loyalty, used in English for the  attitude of a subordinate towards a superior, does not suit its context in this  essay, here, the virtue's momentum is top-down or center-out, from  ruler to peop le, rather than from vassal to lord. For this reason, these remarks will use Chi nese transliterations to refer to the two virtues. The essay, as arranged, begin s by asserting that a ruler who enacts them will reap the love of the People:

It has never happened that

The Ruler] accumulates acts of zhong and xin

And the People do not love him.[Strips 12]

In government, Possession of zhong implies encouragement, nurturing , rather than coercion, Possession of xin implies regularity and predictability:

Ultimate zhong is like the Earth:

It nurtures growth and does not cut down;

Ultimate xin is like the Seasons:

They follow each-other with regularity

And need no contract.[Strip 2]

In these lines there is a faint flavor of what Peerenboom calls foundational  natural law : the idea that human states and rulers should model themselves on  the laws that govern the natural world. As part of the idea of rule of law  ,a ruler that models himself on the earth and the four seasons has less room f or the greed and arbitrary use of power that characterize rule by man .

Government characterized by zhong and xin does not depend  on intellectual persuasion or artificial dead-lines:

Great zhong does not explain;

Great xin does not need dead-lines.

Not explaining, yet sufficient for nurturing: such is Earth;

Not bound by dead-lines, yet dependable: such is Heaven.

That which tallies Heaven and Earth: this is what is meant by zhong and xin.[Strips 45]

The phrase translated here as dependable is literally keyao, or  something that may be demanded : zhong and xin are no t just a matter of grace, they are standards against which the Ruler's  behavior  can be measured. On one hand, they are described as that which tallies Heaven  and Earth ,and are thus rooted in something outside of the ruler and his gove rnment, on the other hand, they imply the predictable regularities of the natura l world.

Finally, this essay asserts that government by zhong and xin will ensure economic success:

Taking zhong as the Way

Ensures that the 100 craftsmen do not produce shoddy goods

And yet there is sufficient to nurture everyone;

Taking xin as the Way

Ensures that the many Things are brought to fruition

And yet the 100 Excellences are maintained.[Strips 67]

As noted above, the virtues of zhong and xin are key aspec t s of the bundle of practices required of a state under the rule of law . In  an odd foretaste of current rule of law proponents from the field of Law and Ec onomics, the essay even promises that their implementation will have beneficial  economic results.

The idea that a proper state avoids coercion and relies on example and persuasio n may be reflected in the paucity of punishments in the Baoshan record. Although , as Chen Wei has pointed out, coercive measures were clearly used to arrest, tr ansport and detain the people accused of some wrongs, especially the violent one s [Strips ##120123], it is hard to pin down the use of coercion to punish in f raction of a positive mandate. Austinian law, in the ordinary sense of a set of  commands backed by threats , is strangely absent, or at least reticent, in  this collection.

One institution that may have substituted for state coercion was that of shou, which seems to have been a way for the state to delegate control, or s upervision, of certain individuals to other members of their families:

In the ninth month, on day guihai (day 60),Qi Ke, of Caoshi qu arter to od as guarantor for his older brother Qi Shu. The zhishiren Yi Meng (or  official in charge of the matter) is seeking Shu. If Ke does not present Shu in  court, liability will result. [Strip #63, see also strip #58]

The legal device of the guarantor, which flourished in all later Chinese legal s ystems, does constitute a delegation of power, although as we see in this instan ce, the state, or its more official delegate (the zhishiren), stands  ready to step in if the guarantors fail to deliver the person under their rec ognizance . Another device to secure control without coercion may have been th e elaborate rules on registration. [Strips 117]

As to the economic aspects of the legal order visible in the Baoshan texts, the  clearest evidence of a spirit of decentralization,even divestment of power is th e case of a family whose salary fief (shitian) was sold by a successo r in interest, several generations removed from the original grantee, to pay off  debts. [Strip #152]. When this transfer was contested, with the claim that th ere was now no proper heir to the salary land, the official response was that Pa n Xu, the original grantee, did have an heir .i.e., the transf er to the credi tors was effective, and the original link between the state and that piece of la nd had been severed. On occasion, one sees examples of the state mediating econo mic disputes between individuals or groups, ordering one feudal lord to return  [money?] to the people of Deng, or another official to return precious metal t o them. [Strips ##43,44]. In many of the cases, the lack of background informa tion on the particular situation makes it difficult to understand the full impli cations, however it seems clear that the state is often a mediator, rather than  a party-in-interest.

C. The Ethic of the Moral Judge

The Guodian version of the Wuxingpian deals with the process of recognizin g, practicing and ultimately internalizing the several abstract virtues: the Fiv e Conducts of Benevolence, Righteousness, Propriety, Wisdom and Sageliness. Whil e success in achieving the first four of these is defined as Excellence, or the  Way of Man, the next step, of attaining Sageliness, is defined as the Way of Hea ven. [Strips 45] Sageliness seems to be the level of human development that  is contagious, that produces resonance in the behavior of other people. The dist inction is elaborated in sections 910:

The bronze sounds, and the jade resonates:

The metaphor for] one who possesses Virtue.

The clangor of bronze is Excellence;

The chime of jade is Sageliness.

Excellence is the Way of Humans, while Virtue is the Way of Heaven.

Only for one who possesses Virtue will the clangor of bronze be paired with

The resonance of jade. [Strips 1920]

In this passage we see a hint that the infectious state of Sageliness depends on a link with the transcendent power of Heaven, the ultimate source of the human  Nature.

While the Wuxingpian says nothing about legal statutes or mandates, it rai ses the issue of how attainment of the virtues will affect case judgments:

Distinguishing in the inmost Heart and implementing with Rectitude:

This is to be Upright.

Upright and achieving: this is to surpass.

He who surpasses and does not fear strength and power will achieve results.

To avoid allowing the lesser Way to harm the greater Way: this is Discrimination  (jian).

If there is a great crime, to punish it heavily: this is Conduct (xing).

Strips 3335]

This section touches on the duty to pronounce judgments without regard to pressu re from the powerful. Again, one of the bundle of ideas associated with the catc h-phrase rule of law is the state's willingness to enforce the law in spite of such pressures.

If one does not Discriminate, there is no Conduct;

If one does not Shield(ni), this is to fail to distinguish the Way.

In the case of a serious crime, to punish heavily: this is Discrimination(jian).