2005 Annual Meeting: Border-Crossing Sessions


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Session 192: Negotiating Legal Boundaries: The Politics of Trials in Qing and Modern China

Organizer: Sei Jeong Chin, Harvard University

Chair: William C. Kirby, Harvard University

Discussant: Eugenia Y. Lean, Columbia University

Keywords: trials, practice of law, politics, legal actors, negotiation, legal history of China.

This cross-temporal panel will examine various trials in which interpretation and implementation of law were contested and negotiated within the specific political and social contexts of Qing and Republican China. Close analysis of trial procedures problematizes the general assumption that the judicial institution in China was simply an instrument of state power. Trials were, rather, a field in which various legal actors contested the interpretation of legal texts through various formal and informal channels. Despite a recent shift by historians from the analysis of legal codes to the examination of judicial procedure, the practice of trials has yet to receive the attention it deserves. Examining the practice of trials in their political and social contexts will shed new light on how different forms of politics at different levels of society had a decisive effect on trial procedure and outcomes. Dan Shao explores trials in which nationality law was contested for political purposes to understand historical changes in the practice of nationality law beginning in the late Qing. Tom Buoye conducts research on trial records from Shandong to analyze how the rhetorical techniques of county magistrates influenced the final decisions in autumn assizes during the Qing. Sei Jeong Chin will examine how trial publicity shaped the practice of law in Republican China by exploring the New Life case of 1935. Janet Theiss examines the complex bureaucratic and ideological context for a 1740 slander case in which a woman from an elite family accuses her family head of maligning her chastity. Taken as a whole, this panel will allow for a comparative discussion of the historical changes in legal practice during the Qing and the Republican periods.

Chinese by Definition: The Making and Practice of Nationality Law, 1909–1980

Dan Shao, Ohio University

Before 1909, no one in the Qing Empire could answer one of the most frequently asked questions about one’s identity nowadays: what is your nationality (guoji)? The Qing court issued the first Chinese law of nationality in 1909, as a response to the rising number of disputes between Western powers, which allowed naturalization, and the Qing government, which forbade overseas Chinese to acquire foreign nationality. However, three years later in November 1912, the newly established Republican government promulgated its nationality law and regulations. The Beijing government in 1914 and 1915 modified the 1912 version. In 1929 the Nationalist government issued another version. Nevertheless, the four Republican versions differed little from each other, and all were based on the principle of Jus sanguinis, which was translated "xuetong zhuyi" (the right of blood). The 1929 Nationality Law remained in effect until the ROC government revised it in 1990 and 1991. The PRC government issued its new Nationality Law in 1980, also based on Jus sanguinis. Chinese Nationality Law has evolved and scholarly debate has also shifted its focus. Despite all the changes in the law, the principle of Jus sanguinis has remained unchanged. How did the Chinese interpret "the right of blood"? What can we learn from the practice of Jus sanguinis about the Qing-ROC transition, and about the subjectivity and objectivity of the imagined national blood lineage? In this paper I will use three cases to examine how being Chinese in blood was defined legally when different boundaries needed to be drawn for political reasons. The three cases include one from 1920s Xinjiang where British and Russian colonial authorities competed with the ROC for sovereignty, a trial for treason in the late 1940s in which the ROC had to define the internal boundaries of nation to include people who had rejected the constructed nation-state of the ROC, and a trial of overseas Chinese in the Philippines for promoting communism by the ROC government in Taiwan in the early 1970s. The ways in which Nationality Law was practiced in these cases reveal that the national blood lineage, though imagined, has been applied as objectively and defines Chinese identity legally with concrete consequences that still have impact on historical borderlanders in Taiwan, Hong Kong, and Macau at the turn of this century.

Punishment, Pathos, and Imperial Prerogative: Rhetoric and Representation in Capital Case Records

Thomas Buoye, University of Tulsa

In Qing law the trial and review of sentencing reached the height of centralization under the control of the emperor. While county magistrates were responsible for the initial investigation, trial, and sentencing of all capital crimes, their statutory duty was to report the crime and cite the relevant laws and punishments. The desire for empire-wide uniformity in the administration of criminal justice was the underlying rationale for restricting the discretionary power of local judicial officials. The autumn assizes provided the institutional framework that guaranteed the emperor primacy over the review of capital crime. While the judicial system was designed to limit the discretionary powers of local officials, as the primary authors and "editors" of the case records, local officials had opportunities to shape the final disposition of the cases through their presentation of the facts, construction of the narratives, and selective quotation of depositions. Paradoxically, the institutional structure that was designed to limit the direct influence of lower level officials provided opportunities for district magistrates to influence the final deposition of a case in subtle and indirect ways. The highest level judicial officials, as well as the emperor who presided over the autumn assizes, were almost entirely dependent on the written reports of their subordinates. Given that the reporting system only allowed the county magistrate space to report the facts and recommend a preliminary judgment based on a specific law, experienced county magistrates and their legal secretaries resorted to evocative portrayals of criminals to influence higher level officials who were adept at detecting inconsistencies in case records and well-versed in the law and legal procedures. This paper will examine trial records of downwardly mobile men from Shandong province during the Qianlong reign in order to demonstrate the rhetorical techniques that county magistrates used to present a poignant portrait of rural society in distress and to evoke sympathy for capital criminals at the highest levels of judicial administration.

Politics and Principle in the Conduct of a Mid-Qing Slander Case

Janet Theiss, University of Utah

This paper examines the interplay of factional politics and the Qing state’s moral agenda in the handling of a 1740 slander case involving an elite Zhejiang family. The case was initiated by a junior daughter-in-law of the Fei family, who took her elder brother-in-law, the family head, to court for falsely accusing her of adultery, illegally divorcing her, and confiscating her property. The Fei family boasted several generations of high-level officials, including the accused’s father, a governor and protégé of the controversial Tian Wenjing. After the magistrate refused to hear the case, the plaintiff took her suit to the provincial governor who expressed outrage at this slandering of a chaste woman and forwarded the case up to the Board of Punishments and Board of Rites, which had to approve the removal of the degree titles of the accused before they could be tried. With the assent of the Qianlong Emperor, the case finally went to trial, ending in a verdict that vindicated the plaintiff, but mitigated the guilt of her male relatives by blaming the slander on the machinations of an old family retainer. The early Qianlong years were marked by both the politics of the regnal transition and the height of the dynasty’s commitment to making the bureaucracy an effective tool for its civilizing mission, especially for the promotion of chastity. My paper explores the implications of the family’s bureaucratic connections and the ideological climate for the decision to try this politically-charged case and its carefully balanced final verdict.

Media on Trial: The New Life Case in Shanghai, 1935

Sei Jeong Chin, Harvard University

In July 1935 Du Zhongyuan, publisher of the periodical New Life Weekly, faced prosecution in Shanghai for publishing an allegedly disrespectful article on the Japanese emperor. This trial was a political one, in which the Shanghai municipal government as well as the Nationalist government came under pressure from the Japanese embassy to punish the publisher as a warning to other anti-Japanese activists. The New Life case gained national and international publicity through the Shanghai news media and became an important political event. The trial generated a media spectacle that had little to do with law enforcement. The news media covered the trial and mediated all public discussion concerning the case, which meant that the media had a significant effect on the strategies of the legal actors involved. Consequently, the news media gained considerable political power to decide who could speak on what subject throughout the legal procedure. My research shows that the accused, local party leaders, local elites, the judge, and the Shanghai municipal government each attempted to create publicity in the news media through formal and informal channels. This case lends insight into the complex ways in which media publicity shaped the practice of law in Republican China.