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Guodian
and Baoshan:Legal Theories and Practices Susan
Weld October,1999 IntroductionWe 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 antiquity”movement 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 2—3］[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 4—15］ 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 15—18］ 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
51—53 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 65—67 ］ 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 4—7］ 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
21—22］. 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 28—29］ 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 6—37］ 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 31—32］ 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 33—34］ …… 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 37—38］ 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 2—5］ 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 4—6］ 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
6—10］ 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 1—2］ 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 4—5］ 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 6—7］ 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 ##120—123］, 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 1—17］ 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 JudgeThe 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
4—5］
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 9—10： 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
19—20］ 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 33—35］ 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). In the case of a minor crime,
to shield ［the offender］: this is Lenience(ni). …… The meaning of Discrimination
is selectivity: In ［treating crimes］
seriously, to be sparing; The meaning of Lenience is
concealment: In the case of small
offenders, to sustain. Discrimination is the method
of Righteousness； Lenience is the method of
Benevolence. Firmness is the method of
Righteousness； Flexibility is the method of
Benevolence. “ Neither harsh nor negligent, neither rigid nor soft ”: ［These lines from the Shi］
express my meaning.［Strips 37—41］ In terms of legal philosophy, these passages from the “ Wuxingpian ”
offer a j udge-centered ethic. Unlike the French civil law tradition, in
which a deep-seat ed suspicion and fear of the power of judges, learned
when the Parlements of jud ges opposed reform at every step during the 17th
and 18 th centuries, led
to adoption of Napoleon's Code Civile, to be mechanically appl ied by
courts working like “ vending machines of the law ”, this essay relies on the judge's individual discretion in deciding how to treat each
case. A legal system empha
sizing judicial discretion is a form of decentralization of state
power-and perh aps an aspect of the ideal of minimizing long-distance
state interference, the k ind of minimal control that we glimpsed above in
the kind of government attainab le by the junzi. ［“ Xing zi ming chu ”, Strips 51—51 ］④. The other Guodian text that
focuses on fixed lists of abstract virtues, given th e title “Liu de”by the
Wenwu editors, divides the functions of government into the three areas of control, social harmony and economics as
follows: In performing Rites and Music, In ordaining Punishments and
Laws, In teaching these to the
People and causing them to be oriented to them: Unless Sagely and Wise, none
can succeed. In arousing Family Feeling
between father and son, In harmonizing the great
ministers, In pacifying the ［?］among
the four neighbors: Unless Benevolent and
Righteous, none can succeed. In bringing the People
together, In entrusting (assigning) his
lands, In making these sufficient to
sustain the People's needs, in life a nd death: Unless Loyal and Faithful,
none can succeed. ［Strips 2—5］ This essay portrays Rites, Music, Punishments and Laws as part of an
inevitably “top-down” part of
government: to be ordained by the Ruler. The “ Liu de”ide al
of government requires the ruler to embody the six named virtues in order
to succeed, while there is a
place in this ideal for both xing and fa, coercive and
top-down modes of social control, their effectiveness dep e nds on the
ruler's personal virtue. More important, the gathering a nd settling o f
the population, (ju renmin), and the dividing up of state lands (ren
tudi), requires the Ruler to practice the “ rule of law ”virtues of zhong
and xin. These two, as attributes of a Ruler, imp l y a degree of
power-sharing that seems less “
patrimonial ”, in Weber's term, than the usual portrayal of Early chinese states. To the
extent that the zhong/xin pair was key to the allocation of power by
covenant (meng) during the formation of the independent states of
the Eastern Zhou, they m ig ht even hint at an idea of “ social contract ”. In another passage, the “ Liu de ”uses the six virtues in a quite different way, to
characterize social roles applicable to everyone in the ideal society: Righteousness is the virtue of
the Lord；…… Loyalty is the virtue of the
Minister；…… Wisdom is the virtue of the
Husband；…… Good Faith is the virtue of
the Wife；…… Sageliness is the virtue of
the Father；…… Benevolence is the virtue of
the Son. Therefore: the Husband acting
as Husband, The Wife, as Wife, The Father, as Father, The Son, as Son, The Lord, as Lord, The Minister, as Minister: These six each enacting
his/her role: ［evil?］ will have nowhere from whence to spring.［Strips
23—24］ In these passages, social control is again to be achieved, not by mandate ,
but by each individual's perfect performance of his or her
role. The cha racters used to
represent the bad consequences of individual's failing to fulfil
their social roles are
unfamiliar. The editors of the Wenwu Guodian do not offer an explanat ion,
but the first character of the pair occurs three times in a different
binom e on Strips 42—44. If we follow Qiu Xigui's understanding of the f irst
graph, as a Chu regional variant of the verb duan, to
judge or adj udicate, the binome can, following the usage of duan
in the Baoshan s trips, be taken to stand for the adjudication, or perhaps
even the exorcism of evil: Filial Piety(xiao) is
the root: When those below can cultivate
this root, One may control evil. The flourishing of the People
requires Husband and Wife, Father and
Son, Lord and Subject. Only when the junzi
makes these six clear. Can evil be controlled. ［Strips
41—43］. The Guodian miscellany to which the editors give the title of “ Yucong No.2 ”,
includes a series of statements tracing the development of human
qualities, fav orable and unfavorable, to their source in the Nature.
Among these, we find: Dislike is born from the
Nature； Anger arises from Dislike； Imposition comes from Anger； Poison, from Imposition； Villainy from Poison. ［Strips
25—27］…… Strength is born from the
Nature； A Firm Stance arises from
Strength； A djudication/Control is based
on that Stance. Weakness is born from the
Nature； Doubt arises from Weakness； Defeat is rooted in Doubt.［Strips
35—37］ These chap-book statements sketch a decentralized ethic of adjudication：
the co nt rol of the bad that naturally occurs in society depends on the
personal qualitie s of the individual judge, instead of subordinating the
judge's dec isions to a central power or abstract rules of behavior. The same graph read by Qiu
Xigui as duan in the “ Liu de ” essay ap pears frequently in the Baoshan legal documents.
In one case, a plaintiff' s suit for
return of a group of his workers is referred to a delegate for decision.
Wh en the delegate fails to rule in his favor the plaintiff appeals to the
king ［ Strips 15—16］. The suitor in another
case complains of the defendants: “judgi ng
illegally(bufa) in my ［older brother's］ case”.［St rip 102］. In
the “Case of the Murdered Brother”, as untangled by Chen Wei, the official to
whom the case was delegated states:“His Majesty referred the suit of Shu Qing t o me:
commanding me to adjudicate everything…… ”［Strip 135 verso ］. Successfully adjudicating
such disputes could take time; in one case, a part y im prisoned because
of counter-claims by his opposite party has time to break out o f jail and
flee, in another, the prisoner dies before his case comes to judgment .
［Strips 137,123］. These cases suggest that the
state's duty to adjudicate was taken s eriously, and was not merely a
means to enforce top-down mandates. D. Access to Transcendent Authority and Legitimacy of the StateAn important element of the
legal philosophy deduced from the Guodian texts is t heir assertion that
the Nature of each individual human is ordained by Heaven: “The Nature derives from the
Mandate; the Mandate is sent down by Heaven ”(supra,
Section 1.A). This idea is not just a statement about the genetic
origins of human Nature, but an assertion that each human being
can, and indeed must, make an
ongoing effort to look within to discover and conform to He aven's
Mandate. Certain passages in the “ Cheng zhi wen zhi ”essay present the oblig ation to “ look within ”as
the root of the Ruler's sense of solid arity with the People: If the Ruler does not follow
his Way, It will be difficult to get
the People to follow it. It is for this reason ［that
we say］ The People may be led by
Respect, but may not be repressed/coerced; They may be directed, but may
not be dragged along. Therefore the junzi
does not value luxuries, But instead his Solidarity
with the People (yu min you tong). ［Strips
15—17］ Reciprocity is the key to a favorable relationship between the Ruler and
the People: If he is rich, but divides his
wealth with the lowly, The People will want his
wealth to increase. If he has high rank, but is
able to yield/entrust ［power to the worthy］, The People will wish to
further elevate him. If he returns to this Way, The People will respond to him
in proportion to his generosity/sincerity. Can he fail to carefully
consider this?…… Let him turn his inquiry
within, And he will be able to know
others. ［Strips 17—20］ This seems like a common-sense rule of human interaction, but the essay
goes dee per to assert that the method works because the grundnorm,
the princi ples sent down by Heaven, are located in the human
heart. Each human therefore has
an internal channel to the divine: What did it mean when, in
ancient times, The junzi had a saying: “The Sage ［embodies］ the Virtue of Heaven?” This means that only by
scrupulously seeking within Can one perfectly accord with
Heaven's Principle.［Strips 37—38］ The Guodian stricture that humans must“ seek within ”
looks like strong proof of
the immanent nature of its normative theories, proof confirming the
arguments of Hall and Ames
that Chinese thought lacked the idea of transcendence and that
Western readings of Chinese texts are too often infected with
Western transcend ental assumptions. However,iterations of both
Christianity and Islam include sim ilar inner “
channels ”to the divine: an individual, autonomous route for comm
unication with the divine through prayer or meditation offers access to
the ulti mate authority whatever the condition of the church and the ulama.
The “ Cheng zhi
wen zhi ” essay, as noted above,
credits Heaven with taking action to make
Principle available to humans: Heaven sent down the Great
Principle To bring order to human
obligations. ［Strip 31］ The argument begun on Strip 37
continues on the same strip, explicating a passag e cited from the “Kangao”. The
words cited occur, with some differences, in re ceived versions of the Book
of Documents. The passage has been influe ntial in the evolution of
Chinese jurisprudence, for it makes a clear-cut distin ction between the
laws inherited from the Yin dynasty, governing such ordinary c riminal
matters as theft and murder, and the norms imported by the Zhou,governin g
human relationships. The “ CHeng zhi wen zhi ” interprets its version of the passage as follows: What does it mean when the “Kanggao” says: “For those who do not return ［to this Norm］ The Great Execution; King Wen made Punishments, That these be mutilated
without pardon.” This means: for those who do
not［huo? hasten to? conform to?］ the
Great Principle; King Wen's Mutilating
Punishments are the most severe.［Strips 38—39］ Citation of this text in the context of the arguments against coercion in
the rest of the essay suggests that coercive punishment is only legitimate
when it enf orces laws with a divine source: the rules defining the
correct relationships be tween Father and Son, Ruler and Subject, Husband
and Wife. The pale reflection o f this idea in the jurisprudence of
imperial China was to allow relational facto rs to simply modulate the
draconian tariff of punishments otherwise prescribed b y law. The essay named “Tang Yu zhi dao ”
by the Wenwu editors deals with rules of s uccession and the legitimacy of
the state. In an age of dynastic rules of succes sion, which emphasized
the patriline as the vehicle of legitimacy, the decision to entrust the ruler-ship on the basis of worth rather than
blood relationship p resented a clear-cut conflict in moral obligations: The Way of Yao and Shun Was to Retire and not Bequeath
［power to descendants］. ［Strip 1］ Yao and Shun, in their
practice, Loved their relations And honored the worthy. They loved their relations,
and so ［obeyed］ Filial Piety； They honored the worthy, and
so retired⑤［in their favor］ The ［true］ method of
Filial Piety: to love the People of the world； The ［?］ of Retiring: the
age does not suffer from Virtue concealed. Filial love is the crown of
Benevolence； Retirement, the acme of
Righteousness.［Strips 6—7］ This conflict is explored through the lives of the Sage kings Yao and Shun.
Yao, born of a king, measured
up to his royal fate in personal virtue, so his legiti macy was recognized
by the spirit world: The (spirit luminaries, shenming)
all followed him; And Heaven and Earth assisted
him.［Strip 15］ Yao, in turn, measured Shun, a product of the “ grass huts ”on
the lowest edge s of society, against the standards of personal morality: He heard of Shun's Filial
Piety, And knew that he would be able
to nurture the world's aged； He heard of Shun's Fraternal
Love, And knew that he would be able
to serve the world's elders. He heard of Shun's kindness to
his younger brothers, □□□ the
Lord of the People. ［Strips 22—23］ The essay, as arranged, ends with a warning of the consequences of failing
to en trust the realm to a sage: The “ Ode of Yu ” says: “The Great Illumination fails； The Ten Thousand Things all
cry out……”［Strip 27］ The failure of ming,
the sacred blessing of human ruler-ship, corresp onds to a loss of
legitimacy: the lack of a Sage at the helm thus ends in the wi thdrawal of
legitimacy by the numinous powers. The puzzle of assigning blame
for the state's descent into chaos in bad
times, an d the problem of how the moral person should act in such
times, are the topics o f the essay given the title of “ Qiong da yi shi ”, or “ Misery
and Success D epend on the Age ”. It is
in this piece that one can sense a growing doubt in t he justice, in the
responsiveness of the spirits to human behavior. One list of
heroic figures includes those who began as peasant, potter, convict
laborer, mil itary conscript, butcher, manacled prisoner and slave and
rose to prominence bec ause of their recognition by the eminent. Another
list includes humans and thing s lost to history because their virtue was
never recognized. The assertion of an
unbridgeable divide between Heaven and humans casts doubt on
the very project of the state, as well as the optimistic belief
noted above in the capacity
of the individual to achieve perfection: There is Heaven and there is
Humanity； Between Heaven and Humanity
there is a divide. Only if one investigates the
divide between Heaven and Humanity, Can one know how to act. If there is one with the Human［raw
material］, Who lacks the Age； Even though Worthy, he cannot
Act. If he has the Age, What difficulty can there be?［Strips
1—2］ It is in this essay that we can glimpse something of the contemporary
turbulence in religious
beliefs； the violent unpredictability of life in the Warring Stat es
presented a challenge to the confident theory of human Nature and its
perfect ion, as sketched above, as well as the magical efficacity of
personal example. W hile the evidence from Baoshan, summarized below,
indicates that Chu medicine an d law were still based firmly on a belief
in access to responsive spirits, socie ty was clearly beginning to wonder. The Baoshan texts show none of
this doubt in an attentive spirit world. On one h and, when direct
testimony in court proved contradictory, the practice was to ha ve the
opposing parties testify under oath: In the fifth month, on day guihai,
the responsible official in charge
of the case made them testify under oath: (weizhimeng). In al l,
211 people took the oath and all testified as follows:“ In truth, in lig ht of what we have know and have heard, Zhou and Cheng participated with
Shu Qing in his ki lling of Xuan Mao ”.［Strip
137］ On the other hand, Shao Tuo, the grave's owner, seems to have put h is
faith in d iscovering the spiritual source of his worsening health, and
offering the correc t prayers and sacrifices to persuade those powers to
cure him. The elements of legal
philosophy sketched above are coherent on the ideal level, in that the kind of human beings described by the theory of
human Nature could not be
successfully controlled by the simplistic use of harsh punishments. The v
ery malleability of the human Nature described in “ Xing zi
ming chu ” suggest s, on one hand, that
a state could try harsh methods to mould behavior, but sinc e Heaven was
the transcendent source of both the Nature and the ethical Norms, a
believing ruler might worry that such methods might offend Heaven.
More practic ally, such methods of social control are presented as simply
much less effective than
others based on teaching, leadership and personal example. The distinction between
control of the population by statute as opposed to perso nal example is
reminiscent of Durkheim's hoary division of societie s into those that achieve cohesion by enlisting the group's emotional
participat ion in the pu nishment of criminals (“ mechanical solidarity ”) and those that hold together because of the civil laws that allow for reliable horizontal
relationships amon g citizens (“ organic
solidarity ”). Government leaders, past
and present, are often
susceptible to a naive hope that problems may be solved by simply “ pass ing a law ”.
The theory of law from the Guodian essays, cited above, requires m ore of
the ruler: 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. ［“ Cheng zhi wen
zhi ”, Strip 4］ In fact, one of the salient things about the Baoshan legal documents is the
lack of a clear reference to
statutory mandates. In light of the legal philosophy sk etched above, this
absence is suggestive. “ The
best comparison to this Chu Sta te might be of Austinian positive law”, the most familiar kind to modern observ er, Shao Tuo's
legal world seems to have been based on suits, contr acts and disp ute
resolution. “Perhaps the shaky English
kings of the tenth to the thirteenth
centuries”, striving to control their restless barons and assert
royal legitim acy by offering a judicial forum with a fairer “ common law ”
than the b aron's rough justice “ can
shed light on this side of Chu law.” (作者为美国哈佛大学法学院讲师) 注 释： ①This
paper will rely most heavily on the “lost” boo ks from Guodian, avoiding difficult questions
of how to interpret the texts that have
“received” counterparts. ②An alternative understanding of this dao is “spoken, or expou nded”； however, since the message of this essay concerns
the process of perfec ting the human Nature, the more active sense of the
word seems apt. ③This translation reads you wei weizhi, you wei yan
zhi and you wei ju zhi as characterizing the human actors who
produced the Class ics: heroic, performers of great deeds. An alternate
understanding would take the you wei to mean purposeful, as in “The Odes were compos ed purposefully”, or more generally, “The Odes were compositions wi th Purpose”. ④As Mark Lewis notes, theories of minimalist
government, judicial discreti on and decentralization of state power are
at the heart of the policies of the e arly Han political figures
identified by Sima Qian as adherents of “Huang-Lao” thought. Writing
and Authority in Early China (SUNY-New York Press:
Albany, 1999),340—351. Interestingly, aspects of this “school” of
thought are reflected in the “Zouxianshu”, or “Book of Hard Cases”, recently excavated
from an early Han grave. ⑤The graph translated bere as “retired” is
transcribed as read by the W enWu editors as a form of shan, a
short form of shanrang: t
he practice of a ruler retiring from power in old age and giving the
throne up t o a chosen successor from another kin group. Guodian
Chujian, n.2, p. 158. While this does seem to be the general sense of
the term in “Tang Yu
zhi dao”,
the editors of Guodian Chujian yanjiu vol.1, Wenzibian, read
the graph as bo, in the sense of retiring, abandoning the en
terprise of ruler-ship, kicking over the traces of public service. Chuci,
“Jiu ge”, “Si gu”, as
cited in HYDZD,823.
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