Chinese Legal Thought in the Han-Tang Transition

Abstract

This article explores and analyzes the fourth century Chinese legal official and legal scholar Liu Song’s (d. 300) theory of adjudication through a full translation into English (the first translation of its kind) of his famous “Memorial on Adjudication,” which urged judicial and legal reforms during the reign of Emperor Hui (r. 290–306) of the Western Jin dynasty (265–316). This article argues that Liu believed that written law should reign supreme over other factors (e.g., societal needs, public opinion) in adjudicating cases. He was also one of the first major Chinese legal thinkers to explicitly set forth what we would today call the “legality principle.” But while Liu’s theory of adjudication was centered on written law, it was also motivated by a desire to control the power and discretion of judicial officials and preserve the authority of the emperor. Liu’s theory of adjudication is significant in the history of Chinese legal thought as it runs counter to the so-called “qing-li-fa” (QLF) theory of adjudication, which has strongly influenced contemporary theoretical accounts and descriptions of traditional Chinese law as a whole. This article also briefly considers Liu’s theory in a comparative legal theory perspective, arguing that Liu’s theory is different from key Western theories on adjudication—namely, Hart’s and Dworkin’s theories of adjudication with respect to hard cases. Finally, this article also briefly discusses the relevance of Liu Song’s legal thought to 21st century Chinese law, given the current Chinese leadership’s penchant for using traditional Chinese political and legal philosophy as sources and justifications for government and administration. This article suggests that Liu Song is a figure whose legal thought could be equally palatable to rule of law reformers and more conservative party officials in China today.