REVIEWS
| Date | 01 July 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01968.x |
| Published date | 01 July 1994 |
REVIEWS
Brian
McKnight,
Law
and Order in
Sung
China,
Cambridge: Cambridge
University Press,
1992,
xiv
+
557
pp, hb
f60.00.
When confronted with a study of criminal law enforcement in eleventh and twelfth-
century China,
I
suspect that many would be tempted to accord this book its due
scholarly respect and then to return it to the obscure corner of academe from which
it came. Medieval China would seem to be a
time
and place too far removed from
contemporary western life to impinge on either conscience or imagination.
So,
what is the importance of this book?
Sung dynasty China
(960- 1279
AD)
was a period of technological and
intellectual brilliance. Urbanisation and the rapid growth of commerce supported
not only the improvement of textiles, ceramics and other traditional crafts, but also
the development of pre-industrial machinery and even the cannons, rockets and
bombs made possible by the invention of gunpowder.
It
was also the first period in
history in which the printing press began to have a dramatic effect on the
communication of knowledge. The widespread availability of printed books,
combined with the new importance of examinations for entry into the official elite,
provided an essential catalyst For the appearance of an educated gentry class. In the
vigorous intellectual climate that also resulted, many scholar officials joined in the
wide-ranging re-exploration of Confucian thought which occurred in this period.
The most important of these individuals was undoubtedly Chu Hsi. By synthesising
the work of earlier Sung writers, he established the school of thought now known
as ‘Neo-Confucianism,
’
which remained
the
dominant intellectual tradition in East
Asia until the twentieth century.
The importance of Confucian thought
to
issues of law and government cannot be
understated. It is a philosophy that concerns the nature of human life and the
principles which guide social relations and the conduct of governance.
Consequently, the study of legal administration during the Sung transformation of
Confucianism is particularly important to understanding the subsequent
development of imperial law in China. It is also relevant to the understanding
of
contemporary Chinese law. But the connection to the present day is much harder to
trace and to comprehend. In this respect, the academic study of Chinese legal
history is markedly different from similar European studies. Most European states
enjoy a fairly continuous line
of
indigenous legal development. Where foreign law
has been imposed, it has come from within the European tradition and has, in most
cases, been easily accommodated. Therefore, in these countries, there tends to
be
a
direct relationship between indigenous legal history and contemporary law that is
rarely found in non-European countries. Outside of Europe, traditional forms of
law and government largely disappeared under the impact of colonial rule. Even in
states which suffered only partial colonisation, such as China, the collision with
western military and commercial expansion was sufficient
to
bring about the
collapse of traditional society.
In China, the Confucian-based legal system did not long survive the overthrow
of imperial government in
191
1.
Since then, successive Chinese governments have
carried out programmes of legal modernisation largely inspired by western models
of law, both capitalist and socialist. Not suprisingly, the preceding three thousand
664
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years of Chinese legal development have continued to exert an enormous influence
on the law through popular and official legal culture. As a result, the study of legal
history is, paradoxically, essential to understanding contemporary law in China
precisely because the westernised face of the law implies its own western past. But
the environment in which the imported norms and procedures of the law function
and which gives practical reality to the law is rooted in the Chinese past.
Interpreting the significance of the past is therefore a key aspect of Chinese legal
studies.
For the reader without a background in Chinese history of any kind, Brian
McKnight provides a lengthy introduction to the political, social and intellectual
background of Sung China. McKnight has previously written on many aspects of
Sung law anti governance. In this book, he draws extensively on original materials
as well as his own thorough understanding of the period to produce a detailed
account of crime and its control under the Sung. According to McKnight, the
central purpose of the book is
to
examine the response of the Sung Chinese
to
universal problems of law breaking and to identify the extent to which their
responses were shaped by the ‘particular constellation of means and goals’ of Sung
society.
In identifying the universal aspects of crime, McKnight has been forced onto
very general ground. He cautiously limits his study
to
acts which are punished in
all societies, such as theft, rape and murder. McKnight also seeks to identify the
basic elements which are universal to effective criminal law enforcement,
including the effective communication of information and the deployment of
reliable agents. Here, he relies to some extent on contemporary criminological
literature. But he makes these points in passing and the focus of his book is fixed
on the special circumstances of Sung China.
Of the many aspects of Chinese society discussed in this book, the elite’s
conception of human nature and the causes of deviance is plainly critical to an
understanding
of
Sung criminal law. Imperial officials, and the landowning classes
from which they were drawn, were fully immersed in the Confucian tradition.
There were, of course, many differences of interpretation and approach to a
philosophy that was already fifteen hundred years old. However, the dominant
perspective was much influenced by the writings of Confucius’s disciple Mencius,
who believed that although human nature was corruptible, it was in essence
inclined to the good. The Confucian sense of good or right behaviour was based on
obedience to the immanent order of society. And although this social order was
admittedly hierarchical, it demanded a respect for each individual as part of the
community. It was also integral to Confucian thought that human beings must be
educated to their better nature which, depending on the individual, they may or
may not be able
to
discern.
If human nature was innately good, then the causes of deviance were thought to
be primarily social. Among Sung scholars and officials,
it
was widely accepted
that the hardships resulting from famine, oppressive government and warfare were
the root causes of crime, especially banditry. According to McKnight, the official
responses
to
crime were conditioned by the Confucian ethos. For followers and
first offenders, clemency and leniency were prescribed in the hope of aiding the
educational transformation of criminals into law abiding subjects. But for leaders
and recidivists who had shown themselves to be beyond hope of reform,
extermination was the preferred solution.
These themes, which are used to introduce the book, come to fruition in the
second half in which McKnight examines in detail the administration of
(C)
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