'Stare Decisis' in Han China? Dong Zhongshu, the Chunqiu, and the Systematization of Law
Norman P. Ho
Peking University School of Transnational Law
Tufts Historical Review, Vol. III, No. 1 (2010)
Dong Zhongshu’s (179-104 BC) pivotal role in the establishment of Confucianism as the official ideology of Han China has been intensely studied by scholars, but his importance as a judge and legal theorist has garnered significantly less attention, especially in the West. This paper first explores, in the context of his broader legal philosophy, Dong’s practice of using the Spring-Autumn Annals (the Chunqiu) to decide cases, attempting to show that Dong viewed the Chunqiu as an alternative and superior source of law to Han codes. Second, while most of the scholars researching this topic have criticized Dong’s practice as overly subjective and out of place with a stable rule of law system, this paper argues that Dong’s use of the Chunqiu should be instead seen as giving more stability, consistency, and flexibility to the Han legal system. In legal terms, Dong’s adherence to the principles of model behavior through the historical events and personages of the Chunqiu can be interpreted as a premodern awareness and concern for respecting precedent (akin to notions of stare decisis) in court decisions. It is hoped this paper also has modern applications to debates involving rule of law and legal institutions in China, showing that principles of precedent and case law are not necessarily new or alien concepts in China’s broad legal tradition, but perhaps potential resources that can enrich and clarify points of contention experienced in China’s civil law system.
Number of Pages in PDF File: 17
Keywords: China, Chinese law, Chinese legal history, legal philosophy, Confucianism
Date posted: July 18, 2012