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Chinese Legal History: Jacob and the Kang Gau

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  • E Bruce Brooks
    To: CGC Cc: Synoptic, WSW On: Chinese Legal History: Jacob and the Kang Gau From: Bruce One of the documents often relied on in writing the history of Chinese
    Message 1 of 1 , May 1, 2009
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      To: CGC
      Cc: Synoptic, WSW
      On: Chinese Legal History: Jacob and the Kang Gau
      From: Bruce

      One of the documents often relied on in writing the history of Chinese law
      is Shu 37, the Kang Gau, ostensibly a charge by Jou-gung on behalf of the
      young King Chvng (to whom he was acting as regent) to Chvng-wang's uncle,
      Kang-shu, who is being put in charge of the conquered Shang population,
      circa 01050, and it is supposed by credulous persons that the document
      itself is a transcript, and itself dates from that year. The credulous
      approach leads to an accurate picture of Chinese law - only, that picture is
      skewed about 600 years out of plumb. Herewith one of a series of notes
      designed as correctives.

      THE KANG GAU

      The Kang Gau document is interesting for its introduction of, indeed its
      insistence on, the doctrine of intentionality. The writer takes time to
      insist that those who commit inadvertent crimes are not to be punished. It
      seems to me that a similar point was reached in the evolution of Greek law
      at about the time of the rumored Solonic reforms, as they may be glimpsed in
      eg the speeches of Demosthenes (I think I found a reference to this in
      Raphe's book The Justice of the Greeks, but lost it before I could write it
      down, and couldn't recover it - lousy index).

      One of the curious details about the Kang Gau is that it contradicts itself,
      and in so doing signals the presence of an interpolated segment. The
      document starts out by insisting that the laws of Shang are good, and that
      the previous rulers of Shang were sagely, and ordering Kang-shu to follow
      their precedent. So far so nice. Then comes an inserted section (Legge
      15-19), in which the laws to be followed are not those of Shang, but rather
      those of King Wvn (of Jou), and all miscreants are to be put to death. The
      doctrine of intentionality is not exactly cancelled, but it is overshadowed
      by hatred for wrongdoers. The miscreants themselves, robbers as well as
      murderers, are excoriated in severe terms. Reading across that juncture is
      like hitting one of the violent and interpolated diatribes in the Epistle of
      Jacob (curiously called "Epistle of James" in and around Lincolnshire; I
      follow Patristic and Continental usage in keeping to the Greek original).

      The tone suddenly changes. "All who of themselves commit crimes, robbing,
      stealing, practicing villainy and treachery, and who kill men or violently
      assault them to take their property, being reckless and fearless of death -
      these are abhorred by all. The King says, O Fvng, such great criminals are
      greatly abhorred, and how much more detestable are the unfilial and
      unbrotherly - as the son who does not reverently discharge his duty to his
      father, . . ."

      So you see, not only is authority transferred from Shang to Jou tradition,
      but the central concern is transferred from the usual and universally
      recognized interpersonal crimes to the typical Sinitic obsession with family
      subordination. "You must resolve to deal speedily with such according to the
      penal laws of King Wvn, punishing them severely and not pardoning them."

      At section 20 the previous mild tone returns, and the happiness of the
      people again comes convincingly into view, and the laws of Yin (Shang) are
      once again the reference standard. It is all pretty obvious, to any
      reasonable literary sensibility, that we have had a minor key intrusion into
      an otherwise straightforwardly sunny E-flat piece.

      JACOB

      And as with the Epistle of Jacob (whose literary affinities in the original
      layer are to earlier documents than those of the violently angry
      interpolations), so with the Kang Gau: there is external confirmation. The
      quotes from the Kang Gau in 04c texts are all from the original layer. The
      first demonstrable external knowledge of the interpolated middle section of
      the Kang Gau comes around the second decade of the 03rd century, a time of
      great cultural upheaval, and thus suitable for a rethinking of the relative
      value of Shang and Jou traditions.

      I regret that I am not able to show "rough margins" in the Kang Gau, whereas
      the Epistle of Jacob - remarkably for a document whose Greek is universally
      praised - gets into grammatical and semantic trouble at many of the
      interpolation margins. Historical and textual parallels are only parallel to
      a limited extent.

      COMPARATIVE LEGAL HISTORY

      The doctrine of intentionality does not seem to come from below, as do many
      of the legal criticisms or suggestions made in the course of the classic
      debates of the Chinese 04c and 03c. As far as the Kang Gau is witness to it,
      the notion apparently comes from above: from those who knew the law as the
      judges and not (eg Mwodz 17) as the judged. The people's cry is for
      fairness. The magistrate's concern is for accuracy.

      But accuracy about what? The revolution of the period is in the
      interiorization of these general concerns: the res gestae is not in the
      details of the crime, but in the inclination of the heart of the accused.
      The whole phenomenon of interiorization in the 04c - to which Waley and
      others have perceptively pointed - looks like being essentially an elite
      matter. But together with its various allomorphs, such as the question of
      intrinsicity, it is a very important one, and the main thought currents of
      the 04c only come clear if it is taken into consideration.

      Is there a comparable development at the Greek end? Do Greek people develop
      a savable soul somewhere along in here, or do they continue in a more
      pristine condition?

      Bruce

      [E Bruce Brooks
      Warring States Project
      University of Massachusetts at Amherst]
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