Friday, February 27, 2015

Ho on Criminal Law in the Tang Dynasty

Norman P. Ho, Peking University School of Transnational Law, has posted Understanding Traditional Chinese Law in Practice: The Implementation of Criminal Law in the Tang Dynasty (618-907), which is forthcoming in the UCLA Pacific Basin Law Journal 32 (2015).  Here is the abstract:    
The Tang dynasty (618-907) is regarded as one of China’s most powerful and cosmopolitan dynasties – its achievements in the areas of literature, culture, economic development, and empire-building have influenced subsequent dynasties. The area of legal development is also not an exception – the Tang Code, a penal code which was promulgated in its finalized form in 653 and is the oldest imperial Chinese legal code to survive to the present-day in its entirety – is regarded as an apex in the development of traditional Chinese law. Indeed, the Tang Code served as model penal code for later Chinese dynasties, and the philosophical spirit animating some its provisions continues to influence modern Chinese criminal law today. Given the importance of the Tang Code and the Tang dynasty more generally, it is not surprising that much has been written about the Tang Code and Tang law. Most scholarship, however, has tended to focus on the history of codification and, more specifically, the Tang Code itself – for example, studying its various provisions, the philosophical bases and justifications behind its various provisions, and so forth. Less scholarship has been done to understand how the Tang Code was actually implemented and applied in society and to answer questions such as whether the application of justice (as mandated by provisions of the Tang Code) was applied consistently. Drawing on and introducing various selected historical sources (many of which have never been translated to English), this Article attempts to address these questions and to discuss the implementation of law in traditional China as viewed through enforcement of criminal law and criminal procedure (as set forth in the Tang Code) in the Tang dynasty. This Article argues that the Tang Code seems to have been applied inconsistently in criminal law cases and that there appears to have been discrepancies between what the Tang Code required and how criminal law was actually implemented and enforced in Tang society. Officials tasked with deciding criminal law cases still appear to have had substantial discretion in implementing the Tang Code. These inconsistencies and discrepancies are perhaps a testament to the diversity of approaches for governance and regulation in the Tang, which is not surprising given the geographic size and diversity of the Tang empire. Finally, given the current Chinese leadership’s proclivity for citing what it considers politico-legal models in the Chinese past, it is an especially important time to enhance and better our understanding traditional Chinese law – this Article is ultimately based on the premise that we can only arrive at a full understanding of traditional Chinese law by looking at the application of historical statutes and legal provisions in practice in actual cases, and not simply focusing on the statutes and legal provisions in a vacuum.

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