Book Review

This book is a compendious consideration of three thousand years of Chinese legal traditions. But more than anything else, it surveys issues in imperial Chinese penal law from the seventh to the twentieth century. As such, it gives a remarkably sweeping panorama of the ideological, moral, and statutory underpinnings of penal law. Yet the very preoccupation with criminal traditions in Chinese legal thinking and practice leads the author to make some unfortunate generalizations about the "spirit" and general nature of Chinese law.	1
This is a useful resource for understanding the legal theory and practice embedded in the Chinese codes of the Tang (618-906), the Ming (1368-1644), and the Qing (1644-1912) dynasties. It is a handy reference work delineating the variety of punishments available in the codes and explaining how laws came to be made. It is also filled with interesting discussions of various issues like the extent to which precedents mattered in legal practice and the reasons judicial officers made extensive use of analogy in decision making. MacCormack also lucidly and convincingly illustrates how family morality, social hierarchy, and imperial power were embedded in the codes throughout the ages. He shows the extent to which Chinese statutes and judicial practice evinced a genuine appreciation for the value of human life—not only of the lives of victims but of defendants as well. All of this underlines what Ch'u Tung-tsu once identified as the "Confucianization of law" that occurred with the dawn of the imperial era. Both specialists and nonspecialists in Chinese legal history can rely on this work to acquire brief and illuminating discussions of much of imperial legal theory and practice.	2
MacCormack's analysis of the "spirit" of Chinese law calls for some rebuttal, however. For one thing, he describes the function of laws governing property, marriage, and other broadly civil affairs as largely "symbolic" rather than "practical ... By this we mean that their presence in the code is not to be explained by the fact that they are intended to be enforced, but rather by the fact that they express a certain [Confucian] message" (13; also 59-60). This is not true. At least during the Qing dynasty (1644-1912), officials calling for the promulgation of various sub-statutes governing "inheritance, marriage, property, and debts" always did so with the expectation that these laws would be enforced (this can be seen in a large number of "palace memorials" preserved in the First Historical Archives in Beijing). It is true that most officials preferred that these sorts of disputes be mediated informally. But in a study of 628 civil cases from three counties, Philip Huang has shown that magistrates upheld the written code in those civil disputes that made their way to the formal courts (P. Huang, "Law and Magisterial Adjudication," in K. Bernhardt and P. Huang, eds., Civil Law in Qing and Republican China [Stanford: Stanford University Press, 1994], 154-55; 179-80). One feels particularly anxious to correct this assertion of the "symbolism" of Chinese civil laws because it is unintentionally part of a long, erroneous, Weberian tradition of depicting Chinese law as essentially an "ethico-ritualistic" tradition in practice. MacCormack's characterization of these civil matters in Chinese law is especially problematic because it is in this nonpenal realm of law that most common Chinese encountered the formal and informal legal system.	3
MacCormack is certainly correct in describing aspects of Chinese statutory traditions as "conservative." He takes care to define conservatism by quoting Chinese scholar Wang Guowei that "conservatism is 'a preservation of the ancient moral traditions of humanity....'" Vast portions of the Tang code were simply reprinted in the later codes of the Ming and Qing dynasties. It is nevertheless easy to overemphasize the unchanging nature of Chinese law, even of Chinese penal law. The Qing, for example, did retain many of the Tang and Ming statutes and sub-statutes. But they also appended hundreds of their own sub-statutes that either contradicted or elaborated upon the earlier laws. And, for the Qing, their own sub-statutes took precedence in judgment. True, this made the code unwieldy and contradictory. But they also achieved a golden mean between respecting the legal wisdom of their imperial predecessors while adapting the code to the new realities they faced in an utterly different time. Although MacCormack is aware of these statutory distinctions, he emphasizes the "conservative" and "unchanging" nature of the Qing code without fully appreciating the extent to which the dynasty sought to deal with the phenomenal changes in the economy and society after the sixteenth century.	4
One could point to other problems in the book. MacCormack's "spirit" dwells too comfortably in the codes and in casebook collections that simply reflect elite and official ideological concerns about the social order. But this and the other criticisms in this review may stem from the dubious (and daunting) series project of determining a "spirit" that characterized fourteen centuries of Chinese law. One simply must focus on some aspects of law to the neglect of others and make generalizations that sometimes are too huge to go unchallenged. What saves this book is MacCormack's own command of the imperial Chinese codes and of penal law in particular.	5
Melissa Macauley Northwestern University

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