MCLC: Chinese Studies Research Group: Feb 2 Meeting

[Denton, Kirk]

MCLC LIST
From: Melissa Dale <mdale3 at usfca.edu>
Subject: Chinese Studies Research Group: Feb 2 Meeting
***********************************************************

Officials on Trial: Administrative Law in Qing China
 Dr. Nancy Park
Lecturer, Department of History
California State University, East Bay

In the more than 50 years since the publication of Derk Bodde’s and
Clarence Morris’s pioneering study of Qing law and society, there has been
a steady stream of research on imperial Chinese law, particularly of the
Qing dynasty (1644-1911).  Much of this research has been devoted to the
study of crime and punishment, resulting an explosion of scholarly studies
of luridly intriguing topics such as adultery, murder, smuggling,
corruption, banditry, rape, sorcery, and the like. These and other works
have offered profound insight into the nature and scope of the imperial
Chinese system of criminal justice and their value cannot be denied.
Nonetheless, crime and punishment were not the sole focus of the Chinese
legal system.  In fact, criminal rules, regulations, procedures, and
policies made up a relatively small fraction of the body of imperial
Chinese law.  Even within the Qing Criminal Code (Da-Qing lüli), the legal
compilation that was at the heart of the criminal justice system, the
majority of provisions were non-criminal in nature.

Similar to other compendia of imperial Chinese law, the Qing criminal code
encompassed provisions dealing with crime and punishment, as well as
provisions focusing on the private concerns of individuals that in the
American legal system might be categorized as “civil law.”  Also included
were regulations of primary relevance to military officers, which might be
characterized as “military law.”  However, by one estimate, the majority
of provisions of the Qing criminal code – more than half – were not
criminal, civil, or military in nature, but might best be described as
falling under the purview of “administrative law.” [1]
<https://mail.google.com/mail/u/0/?shva=1#13c936617ddae905__ftn1>

Broadly defined, administrative law is the body of law that delineates the
powers and regulates the activities of administrative agencies of
government.  It can include procedures for government decision-making, as
well as policies to establish, maintain, and enforce high standards of
conduct.  In the Western legal system, administrative law is considered to
be a subcategory of “public law,” because one of its functions is to
regulate the relationship between individuals and the state. It is
important to note that the Qing legal system did not recognize
“administrative law” – or “criminal,” “civil,” and “military” law, for
that matter – as a discrete branch of law.  However, the body of Qing law
did include rules, regulations, policies, and procedures of primary
relevance to the bureaucracy and its members.  Some of these laws applied
exclusively to members of the bureaucracy, while others applied equally to
officials and commoners, or had a commoner analog.

For the purposes of this article, Qing “administrative law” refers to the
corpus of laws related to the structure and functions of Qing government.
Many of these laws described operational aspects and responsibilities of
various government agencies and officials, focusing on such areas as
taxation and tariffs, mining and manufacturing, trade and transport – in
short, any of the countless activities that made up the day-to-day
business of government.  Other laws served to enhance the discipline,
effectiveness, and integrity of officials and other members of the
bureaucracy.  There were provisions that defined the parameters of proper
conduct, establishing recommended standards for physical fitness,
appearance, and similar requirements.  There were also provisions for
dealing with improper standards of conduct or performance, and for
intentional disregard or failure to comply with prescribed standards of
official behavior. 

My paper discusses the Qing system of administrative law, highlighting the
policies and procedures for the regulation of official misconduct.  As in
the criminal system, some of the basic objectives of the Qing
administrative system were to discover the truth, acquit the innocent,
punish the guilty proper, and prevent and deter further wrongdoing,
thereby providing for the public order.  However, because the special
status of officials in Qing state and society, they were subjected to
rules, orders, proceedings, and consequences that were different from
those of their commoner counterparts.  Examination of the nature and
sources of Qing administrative law, and how the law was applied in the
context of actual cases of official wrongdoing, will provide insight into
the dynasty’s unique point of view towards law, politics, and the
bureaucracy.

________________________________________
[1] <https://mail.google.com/mail/u/0/?shva=1#13c936617ddae905__ftnref1>
William C. Jones, trans., The Great Qing Code (Oxford:  Clarendon Press,
1994), p. 6.

-- 
Melissa S. Dale, Ph.D.Executive Director & Assistant Professor
Center for the Pacific Rim
University of San Francisco
2130 Fulton St., KA-180A

San Francisco, CA  94117-1080
(415) 422-2590 <tel:%28415%29%20422-2590>