The ultimate purpose of all law is its enforcement. Law that cannot be enforced is “law in books” and law that can be enforced is “law in action.” After the creation of law, the procedures, subjects, objects, effects, and social consequences of its enforcement constitute the fundamental structure of the culture of justice. In traditional Chinese society, everyone from the emperor down to the county magistrate was an adjudicator. Although the vertical power structure featured a division of judicial responsibilities, judicial power was never truly independent from administrative power. The administration of justice by the executive officials became the dominant mode of judicial power. As the state ideology was primarily dominated by Confucianism, the assessment and cultivation of ethical and moral character was the paramount goal for social elites. Knowledge of law was long positioned the lowest in the dynastic knowledge system, dismissed as “inferior learning.” Elites looked down upon legal studies, and the intellectual class engaged in legal practice was marginalized, unable to enter the social mainstream. Judicial auxiliaries, such as private advisors and the community of law practitioners termed as “Songshi,” were all excluded from the orthodox system. The scarcity of official judicial resources, coupled with the active role of these auxiliaries, led to various instances of judicial injustice. The legalization and loss of control over interrogation by torture often exacerbated this injustice, undermined political rule, and contributed to a cyclical pattern of dynastic crisis.

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The Culture of Justice

  • Renshan Zhang

摘要

The ultimate purpose of all law is its enforcement. Law that cannot be enforced is “law in books” and law that can be enforced is “law in action.” After the creation of law, the procedures, subjects, objects, effects, and social consequences of its enforcement constitute the fundamental structure of the culture of justice. In traditional Chinese society, everyone from the emperor down to the county magistrate was an adjudicator. Although the vertical power structure featured a division of judicial responsibilities, judicial power was never truly independent from administrative power. The administration of justice by the executive officials became the dominant mode of judicial power. As the state ideology was primarily dominated by Confucianism, the assessment and cultivation of ethical and moral character was the paramount goal for social elites. Knowledge of law was long positioned the lowest in the dynastic knowledge system, dismissed as “inferior learning.” Elites looked down upon legal studies, and the intellectual class engaged in legal practice was marginalized, unable to enter the social mainstream. Judicial auxiliaries, such as private advisors and the community of law practitioners termed as “Songshi,” were all excluded from the orthodox system. The scarcity of official judicial resources, coupled with the active role of these auxiliaries, led to various instances of judicial injustice. The legalization and loss of control over interrogation by torture often exacerbated this injustice, undermined political rule, and contributed to a cyclical pattern of dynastic crisis.