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A note on civil cases in early China.
Civil cases usually involve disputes over property. They are "civil" because they seek remedies for individuals, as opposed to criminal cases that punish crimes in order to preserve the public order. Generally speaking, historians have overlooked the existence of civil litigation and arbitration in early China, tending to see law there as restricted to the criminal and the administrative. For instance, the preeminent Japanese legal historian, Oba Osamu [TEXT NOT REPRODUCIBLE IN ASCII.] (1927-2003) cites approvingly the judgment of Tanaka Kaoru [TEXT NOT REPRODUCIBLE IN ASCII.], who characterized the unique legal system of China as the luling [TEXT NOT REPRODUCIBLE IN ASCII.] system, which divided the laws into two types: the lit concerning the punishment of criminals and the ling corresponding to administrative laws. (1) Neither Oba nor Tanaka seriously considered the possibility that civil law may have existed in early China. The famous expert on Han law, A. F. P. Hulsewe (1910-1993), shared the same view, writing:
It is characteristic for the whole of traditional Chinese law as embodied in the codes that it is solely concerned with public matters, being administrative and penal. Private law, pertaining to the family and to trade and commerce other than the state monopolies, remained outside the field of regimentation by public authorities and continued to be ruled by custom and usage. (2) However, the discovery of newly excavated legal documents is changing academic views, and forcing the reexamination of transmitted materials; increasingly, it appears that civil cases were common in early China and that the legal system indeed had its civil as well as penal and administrative codes. It is true that there was no term equivalent to "civil case" in the classical Chinese language. That does not mean that there was no such concept, however. In fact, in the second century A.D., Zheng Xuan's [TEXT NOT REPRODUCIBLE IN ASCII.] (127-200) commentaries to the ...See the full content of this document
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