Black's Theory on the Behavior of Law Revisited IV: the Behavior of Qing Law

Abstract

Black's theory on The Behavior of Law (1976) predicts and explains the behavior of law with five social variables: stratification, morphology, culture, organization, and social control. This research project tested one aspect of Black's theory—the relationship between law and culture—with historical data from the Qianlong reign (1736–1796) in the Qing dynasty (1644–1911) of China. The research question posed was whether and to what extent the cultured people in Qing-China were subjected to a different and more favorable judicial process in speech crime prosecution cases? Two hypotheses were tested: (1) The judicial process was compromised in favor of the cultured. (2) The emperor and the officials were more involved and invested more judicial resources in the processing of cultured cases.The testing of Black's theory was achieved by the analysis of 68 speech crime case files from emperor Qianlong's reign for evidence of favorable treatment of the cultured. The testing was conducted with the cultural status of the speech crime defendants as an independent variable, seriousness of crime as a control variable, and the Qing judicial process as a dependent variable. The concept of law was operationalized as Confucian ethics, emperor's justice policy, Qing law, and judicial practices. The concept of culture was operationalized as education-official standing, i.e., the cultured being officials, gentry, and scholars and the less/non-cultured being students, commoners and eccentrics.The findings of this research show that the cultured were afforded a more protective judicial process. Specifically, the judicial process was compromised in favor of the cultured and the emperor and officials devoted more judicial resources (time and effort) in the processing and disposition of the cultured cases. The findings provided for a first confirmation of Black's theory of law in China, i.e., that the cultured people were treated to more law in the Qing courts.