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Remnants of Ch'in Law: Introduction (4) 
作者:[A.F.P. Hulsewe] 来源:[] 2008-07-29
摘要:By way of conclusion I should Iike to make a few remarks....

    The Yun-meng texts also throw new light on the Ch’in system of conscription.It is well known that under the Ch’in and the Han all men, except the holders of the higher degrees of aristocratic rank,were obliged to perform two kinds of service:military service and 1abour service.During the Han period the former took two years:one year’s training in the men’s place of origin.and  one year’s garrison service, either in the capital or on the frontier.Labour service was,at least theoretically,one month each year.

    Here the Ch’in texts provide additional information.They show e.g.that young men were enrolled (傅) already in their l5th year,whereas formerly it was assumed that their names were entered in the service registers at twenty,if not at twenty three years of age. Failing to enter young men in the rolls was a punishable offence:in the same way, the responsible officials were punished if they did not remove the names of“old”men from the lists.On the other hand officials were punished if they mobilized more than one person from the same household at the same time; this is an additional indication that households were small and that they usually did not count more than five persons. As regards the men,once they had been called up,they were bastinadoed if they did not answer the summons or if they ran away from the work site. Like the hard labour convicts,their main task consisted in contruction work, including the building of pise walls;if these collapsed within one year,they had to rebuild them,but this extra work was not counted as labour service,and the Controller of Works and the men in charge were punished.

These are some of the aspects of the Ch’in laws that I believe to be important, but there surely are many other points which trained jurists will discover and discuss.But these texts also present other facets;one of these,the influenc of the Ch’in state on the economy in so far as this is reflected in these texts I have discussed in a separate study. Another question which merits close study is the organization of Ch’in society,especially as regards the position of the farmers,as well as the related problem of slavery.These problems should be approached sine ira et studio -- which is far from always the case at present -- avoiding preconceived notions and dogmatic formulae,where the answers are already implied in the questions.The documents should be allowed to speak for themselves,as they do in Wilbur’s study,now forty years old,but stilI unsurpassed.


    By way of conclusion I should Iike to make a few remarks.

    The first is that I am convinced that the beginnings of codified law in China lie much farther back than is usually assumed.These beginnings will have coincided with the growth of the large,increasingly centralized and bureaucratic states in the 8th and 7th centuries before the beginning of our era.In principle I see no reason why the state of Ch’in should have lagged far behind -- a view which is often encountered.And this brings me to my second point:the so-called backwardness of Ch’in.

    The complexity and the sophistication of the Ch’in laws and regulations hardly bear witness to this backwardness,or to its semi-barbarian condition.These traits are always attributed to Ch’in,because of its position on the fringe of the Chinese culture area and of the fact that part of its population consisted of recently subdued“barbarian”tribes.To me,this view seems fallacious, or at least subject to strong doubt.As regards the“barbarian”tribes both Maspero and Prusek have stressed that the tribes were of the same stock as the Chinese of the nuclear area and that they differed only from these by being culturally less advanced;they were not completely alien nomads from the northern steppe. And secondly,those who believe the Ch’in to have been backward, usually overlook that this state occupied the original homeland of the Chou,who were anything but backward. It is therefore not logical to assume that this area lapsed into barbarity once the Chou king had fled East in the 8th century B.C.,when we observe that in a comparable situation a millennium later North China remained Chinese in spite of its occupation by nomadic tribes (real aliens,this time) during several centuries after A.D.317,when part of the cultural elite had fled to the Yang-tzu region.

    It is not logical to postulate that the Ch’in because of their "backwardness" were obliged to model their laws on those of the states farther East. All these laws were after all the written form of the ancient customary law, and this will not have been greatly different for the different groups of the same cultural community.New elements,however,may have come into being in the rule connected with the exercise of power in the new bureaucratic, and above all centralizing,states,and in this field Ch’in may well have produced original solutions.

    The texts translated in this volume show that in the 3rd century B.C.the state of Ch’in aimed at extending its influence over all spheres of the life of its inhabitants. Although also the ancient customary law was all-embracing, here the ideas of the School of Law definitely played a determining role.Collective responsibility,for instance,is a general trait of primitive law,but its systematization is the work of the Legalists.It is not without reason that Shang Yang is credited with the idea of organizing all families in groups of five,whose members were to be held responsible for the misdeeds of other members of the same group.Dr.Momiyama is probably right when he traces these measures to the military organization,for it is in a miliary context that the groups of five are mentioned in the Book of Lord Shang and in the military 70th chapter of the Mo-tzu.I believe that the relative newness of the idea of group-responsibility is shown by the need that was apparently felt to explain the relevant terms.

    I may leave it to the reader to find other points of interest:Legal, social, historical or linguistic;as regards the latter,the way in which loan characters are used in these manuscripts of the 3rd century B.C.may be of some value to all those who are interested in ancient texts and their transmission.

It is only a few years ago that a chance discovery brought to light these remnants of Ch’in law,but already the Chinese archaeologists have presented us again with another valuable find.We can therefore continue to hope that further additions to our knowledge of the laws of Ch’in will eventually be turned up by the searcher’s spade.


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