3月3日云端圆桌论坛 - "大分流：法律，正义和帝国的比较研究"
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圆桌论坛
大分流：法律，正义和帝国的比较研究
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Roundtable 2 Legal Philosophy and Legal Practice in Early China and Roman Empire
Organized by Professor Liang Cai
University of Notre Dame
圣母大学历史系蔡亮教授组织
Time
时间：March 3, 2022, 9:30am, eastern time (北京时间2022年3月3日晚上10点半开始）kLocation
Webinar registration link/注册链接：https://notredame.zoom.us/meeting/register/tJ0sfuChrz4oG90kmL7MWlmce3MSZUZsxEBl
How Realistic Was Early Chinese Legal Philosophy?
Paul R. GOLDIN
Before the documents excavated at sites such as Shuihudi （睡虎地）, Zhangjiashan （张家山）, Longgang（龙岗） , and Liye （里耶） revolutionized our understanding of early Chinese law—that is to say, for virtually all of imperial Chinese history and much of the twentieth century as well—historians were inevitably beholden to so-called legalist texts, primarily the eponymous Shangjun shu （商君书） and Han Feizi （韩非子）, which were associated with influential Qin statesmen and hence taken to be representative of laws and institutions in that kingdom.
Over the past forty years, research on excavated texts has been truly path-breaking, and it is no exaggeration to say that we now understand more about Qin and early Han law than most Chinese literati of later dynasties. Yet the relationship between legal thought and practice remains underinvestigated. The fine translation and study of the Zhangjiashan texts by Anthony J. Barbieri-Low and Robin D.S. Yates takes it as a matter of course that the jurists responsible for drafting and interpreting these documents were “legalists” in the mold of Lord Shang or Han Fei. The influence of such theorists over the legal system is far from clear, however, as the philosophies of Shangjun shu and Han Feizi clash with the realities of early Chinese law in several important respects: for example, on the question of status-based adjustments to legal requirements and the role of the state in enforcing filial piety (xiao 孝). Even the keyword fa （法） does not seem to have been used in precisely the same way.
Clifford Ando
This session responds to the wonderful material provided by Paul Goldin, and to the questions about law and empire that the discovery and excavation of early Chinese legal documents has elicited. At some level, the Roman situation bears strong resemblance to this: codifications of imperial enactments and—for lack of a better term—collections of legal academic writing from the Roman empire have been known for a millennium, and these collections were long accorded a privileged position as sources in the recuperation and study of "Roman law." Needless to say, the interests that impelled persons to study Roman law, and the nature of the source material, collaborated to make the history of doctrine central to the discipline (rather than socio-legal study or any other form of historical inquiry). But much other material survives, including forensic oratory, fictional prose containing narratives of courtroom scenes, and documents that derive, at varying degrees and in diverse genres, from trial transcripts (as well as fictive versions of such things). What is more, commencing in the late 19th century, scholars began to recover documentary evidence from Egypt—and later the Judaean desert—in the form of potsherds and papyri. Over time, this material has gradually been exploited to produce an extraordinary contemporary efflorescence in legal history.
For various reasons, some having to do with the sustaining of ideological distinctions in historical practice, some having to do with the difficulties of the source material, and more besides, the world of Roman legal scholarship long divided between scholars of practice (who perforce worked on evidence derived from elsewhere than Rome) and scholars of theory and doctrine (who worked on textually-transmitted material that originated in the metropole). But there are also now scholars trying to figure out how new forms of history might be written that either bring these narratives together, or that surmount the distinction by other means. The readings that I provide seek to illustrate some of this work.
Paul R. GOLDIN
Professor of History,
University of Pennsylvania
Clifford Ando
Professor of history
University of Chicago
Discussant
Jan Kiely (CCS)
Professor of History
The Chinese University of Hong Kong
Liang Cai 蔡亮
Associate Professor of History
University of Notre Dame
向下滑动阅览
ALFORD, William P. “Law, Law, What Law? Why Western Scholars of China Have Not Had More to Say about Its Law.” The Limits of the Rule of Law in China. Ed. Karen G. Turner et al. Asian Law Series 14. Seattle and London: University of Washington Press, 2000. 45-64.
BARBIERI-LOW, Anthony J., and Robin D.S. Yates. Law, State, and Society in Early Imperial China: A Study with Critical Edition and Translation of the Legal Texts from Zhangjiashan Tomb No. 247. 2 vols. Sinica Leidensia 126. Leiden and Boston: Brill, 2015.
CALDWELL, Ernest. Writing Chinese Laws: The Form and Function of Legal Statutes Found in the Qin Shuihudi Corpus. Routledge Studies in Asian Law. Abingdon, U.K., 2018.
GOLDIN, Paul R. “Han Law and the Regulation of Interpersonal Relations: ‘The Confucianization of the Law’ Revisited.” Asia Major (third series) 25.1 (2012): 1-31.
HSING I-tien. “Qin-Han Census and Tax and Corvée Administration: Notes on Newly Discovered Materials.” Tr. Hsieh Mei-yu and William G. Crowell. Birth of an Empire: The State of Qin Revisited. Ed. Yuri Pines et al. Berkeley: University of California Press, 2014. 155-86.
HULSEWÉ, A.F.P. Remnants of Ch’in Law: An Annotated Translation of the Ch’in Legal and Administrative Rules of the 3rd century B.C. Discovered in Yün-meng Prefecture, Hu-pei Province, in 1975. Sinica Leidensia 17. Leiden: E.J. Brill, 1985.
LAU, Ulrich, and Thies Staack. Legal Practice in the Formative Stages of the Chinese Empire: An Annotated Translation of the Exemplary Qin Criminal Cases from the Yuelu Academy Collection. Sinica Leidensia 130. Leiden and Boston: Brill, 2016.
WELD, Susan Roosevelt. “Grave Matters: Warring States Law and Philosophy.” Understanding China’s Legal System: Essays in Honor of Jerome A. Cohen. Ed. C. Stephen Hsu. New York and London: New York University Press, 2003. 122-79.
向下滑动阅览
Ando, Clifford. “The Future's Past : Fiction, Biography, and Status in Roman Law.” Acta Classica 63, no. 1 (2020): 43–55.
Ando, Clifford, “PERFORMING JUSTICE IN REPUBLICAN EMPIRE,1-565 CE” in Legal Engagement : the Reception of Roman Law and Tribunals by Jews and Other Inhabitants of the Empire. Edited by Berthelot, Katell, Dohrmann, Natalie B., and Nemo-Pekelman, Capucine. (Rome: École française de Rome, 2021),
Ando, Clifford, Ex Imperio Libertas: Freedom and Republican
Empire, “” Libertas and Res Publica in the Roman Republic. Edited by Balmaceda, Catalina.Boston: BRILL, 2020.
Bryen, Ari Z, Judging Empire: Courts and Culture in Rome's Eastern Provinces (September 10, 2012). Law and History Review, Volume 30, Issue 3, August 2012, pp 771 811, Available at SSRN: https://ssrn.com/abstract=2494520
Bryen, Ari Z, “Martyrdom, Rhetoric, and the Politics of Procedure.” Classical Antiquity, vol. 33, no. 2, University of California Press, 2014, pp. 243–80, https://doi.org/10.1525/ca.2014.33.2.243.
Humfress, C. (2014). Laws’ Empire: Roman Universalism and Legal Practice. In C. Rapp & H. Drake (Eds.), The City in the Classical and Post-Classical World: Changing Contexts of Power and Identity (pp. 81-108). Cambridge: Cambridge University Press.
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