Skip to content

Revisiting the A.D. 28 Case from Juyan 居延: How Was Civil Justice Different from Criminal Justice in Han China?

Pages 51 - 79


East China Normal University, Shanghai

1 This article is based on my dissertation (University of California at Berkeley, 2010), and my current research is supported by the National Social Sciences Fund of China. — Juyan was the northwestern frontier of the Han dynasty, located in today's Inner Mongolia, PR China.

2 Michael Loewe and Denis Twitchett (eds.), The Cambridge History of China, Vol. 1: The Ch'in and Han Empires, 221 B.C.—A.D. 220 (Cambridge: Cambridge University Press, 1986), p. 525.

3 Michael Loewe, The Government of the Qin and Han Empires (Cambridge: Hackett Publishing Company, 2006), p. 120.

4 In the English scholarship, Philip Huang was the first to argue for the existence of civil justice in pre-modern China; see Huang, Civil Justice in China: Representation and Practice in the Qing (Stanford: Stanford University Press, 1996). Indeed, as early as 1904, Asai Torao 浅井虎夫 already argued for the existence of civil laws embedded in the penal codes of pre-modern China (Asai, Shina hōseishi [Tokyo: Hakubunkan, 1904]), and this argument was accepted by 楊鴻烈 (Yang, Zhongguo falü fada shi 中國法 律發達史 [Shanghai: Shangwu yinshuguan, 1930]). Asai and Yang's views were overlooked, but recently scholars have become increasingly interested in this civil aspect of traditional Chinese law;

5 A. F. P. Hulsewé, “A Lawsuit of A.D. 28,” in Wolfgang Bauer (ed.), Studia Sino-Mongolica (Wiesbanden: Franz Steiner Verlag, 1979), p. 29.

6 Professor Hsing I-tien (Xing Yitian) 邢義田 argues that the thirty-six strips included just a small part of the complete case concerning the dispute between Li and Kou En. See Hsing I-tien, “Handai shuzuo wenshu yongyu ‘ta ru mou mou’ ji ‘Jianwu san nian Hou Lijun zhai Kou En shi’ jiance dang'an de goucheng” 漢代書佐文書用語 ‘它如某某’ 及 ‘建武三年候粟君責寇恩事’ 簡冊檔案的構成, Lishi yuyan yanjiusuo jikan 歷史語言研究所集刊 70.3 (1999), pp. 559–588.

7 In the report, the five statutes were referred to by their conventional abbreviations. Therefore, the details of the statutes are unknown. My translation of these abbreviations follows Hulsewé, “A Lawsuit of A.D. 28,” pp. 24–25 (slightly modified).

8 Ibid., p. 29.

9 Zhang Jianguo 張建國;, “Juyan xin Han jian Li jun zhai Kou En minshi susong ge an yanjiu” 居延新漢簡 粟君責寇恩事民事訴訟個案研究, Zhongwai faxue 中外法學 (5/1996), pp. 15–21.

10 Xu Shihong 徐世虹, “Han dai minshi susong chengxu kaoshu” 漢代民事訴訟程序考述, Zheng fa luntan 政法論壇 6 (2001), pp. 122–130. I agree with her on the conclusion that this case is a civil-criminal combined case, but I disagree on her approach and pre-assumption.

11 Momiyama Akira 初山明, Chūgoku kodai soshō seido no kenkyū 中國古代訴訟制度の研究 (Kyōto: Kyōto daigaku gakujutsu shuppankai, 2006), pp. 154–158.

12 Juyan new strip no. E.P.T.52.417, p. 256; see Juyan xinjian 居延新簡 (Beijing: Wenwu chubanshe, 1990) [hereafter JYX]. In this context, Qing Qing 請 should be taken as a loan word for qing 情. This occurs quite often in Qin and Han strips. Buqing 不請 (情) literally means “not the real situation”; hence I translate the phrase as “false testimony.” — Juyan strips were found during two separate excavations. The first was conducted in the 1930's by a Sino-Swedish joint archeological team, which yielded 10,272 strips. The publication of those strips was difficult in a turbulent age. The first major publication that includes 2,555 strips is the Juyan Han jian jia bian 居延漢簡甲編 (Beijing: Kexue chubanshe, 1959). The complete collection of strips was published in the Juyan Han jian jia yi bian 居延漢簡甲乙編, 2 vols. (Beijing: Kexue chubanshe, 1980). Revisions were made by Xie Guihua 謝桂華, Li Junming 李均明 and Zhu Guozhao 朱國招 in the Juyan Han jian shiwen hejiao 居延漢簡釋文合校 (Beijing: Wenwu chubanshe, 1987) [hereafter JY]. Meanwhile, Lao Kan 勞享朵 published about 10,000 strips in his Juyan Han jian 居 延漢簡 (Taipei: The Institute of History and Philology Special Publication, 1960). The second excavation was conducted during 1972–1974 by a Gansu archaeological team, which yielded 19,400 strips. These strips were published in the Juyan xinjian. Also see note 82 below.

13 This is in the context of offering testimony. See Zhangjiashan Hanmu zhujian (ersiqi hao mu) 張家山漢 墓竹簡(二四七號墓), ed. Zhangjiashan ersiqi hao Hanmu zhujian zhengli xiaozu 張家山二 四七號漢墓 竹簡整理小組 (Beijing: Wenwu chubanshe, 2001) [rev. 2006] [hereafter ZJS].

14 In modern Western courts, a failed complaint would typically leave the complaining party with empty hands or at most, subject to court costs. False accusations would be adjudicated separately or in a counter-suit. There is no indication in the text that Kuo En ever made an official complaint against Li. The charges against Li were leveled by an official at the county level.

15 Whether the contract was oral or written is not clear from the text.

16 We can further argue that, if that was indeed the case, paying Kou En the claimed debt would constitute punishment. It would be very odd to base that punishment on “dishonesty in administration.”.

17 According to Xu Shihong, wuzhuang 毋狀 was a generic term, meaning “not capable” or “without achievements.” See Xu, “Juyan Han jian zhong de ‘wuzhuang’ yu ‘zhuangci’” 居延漢簡中的 ‘毋狀’ 與 ‘狀辭’, Chutu wenxian yanjiu 出土文獻研究 4 (1998), pp. 52–56.

18 Throughout this article the symbol □ stands for a missing character.

19 I am not confident about how to render the phrase buli gugui 部吏故貴. However, since the other two persons (Zhang Tan and Yang Bao) are both identified by their official titles first followed by their full names, I assume guli here is also an official title and Gu Gui a full name.

20 To understand this case, we first need to briefly review the organization of the military on the northwestern frontier at that time. According to Michael Loewe, there were four levels of military organization: commandant headquarters (duweifu 都尉府); companies (houguan 候官); platoons (hou 候); and sections (sui 遂). A commandant controlled perhaps four companies. Each company consisted of several platoons. Each platoon consisted of several sections. See Michael Loewe, Records of Han Administration, 2 vols. (Cambridge: Cambridge University Press, 1967), I, p. 384.

21 We should not be hasty in deciding if this is a civil case since the existence of civil justice is the issue that this article sets out to demonstrate. By contrast, we can readily identify a case as criminal, since criminal cases are well-studied. Thus, if the case was different from what we know about in criminal cases, then the case should be considered, at minimum, non-criminal, leaving the matter of what specific kind of non-criminal case it was for later.

22 Juyan strip nos. 229.1–229.2, p. 371. Professor Xu Shihong briefly studied this case and asserted that it reflected the practice of “compulsory execution” (Xu, “Han dai minshi susong chengxu kaoshu,” p. 129), but I think we shall pay more attention to this fact: the defendant successfully delayed payment, forcing the plaintiff to repeatedly complain to the authorities to request repayment of the debt. I will discuss the significances of this fact in details later.

23 “Shou Ziyuan” 受子淵 is a little bit difficult to render. I think the word “Shou” here should be Ziyuan's surname. We know that Ziyuan is a name because the following sentence says that Ziyuan got money from His Honor Yang. I tend to take Shou as his surname since it follows a pattern, i.e., the way this file addresses Zhang Yu, Zhang Zong and Zhao Xuan. When a figure first occurs, he is identified by his full name, and only then identified by the given name. Thus, I believe that Shou Ziyuan is the full name of Ziyuan and hence Shou is his surname.

24 The phrase Yi pi hu ma 譯牝胡馬 is hard to render. Yi means post, pi means female, and huma means horses from the northern steppe. It seems that this particular horse was a female horse that originated from the northern steppe and was put into service at a specific post.

25 JY strip nos. 229.1–2, p. 371.

26 The text is not clear on how many months worth of salary was garnished.

27 Based on the context, ji 記 should be a type of official notification. As our evidence shows, in the Juyan strips, there are zhaji 札記 (letters), shiji 市記 (market records), and fuji 府記 (a type of document from the commandant headquarter). See Shen Gang 沈剛, Juyan Han jian cihui huishi 居延漢簡語詞彙編 (Beijing: Kexue chubanshe, 2008), 54, 68, 147.

28 According to Li Junming, guan here refers to houguan 侯官. See Li Junming 李均明 Qin Han jiandu wenshu fenlei jijie 秦漢簡牘文書分類輯解 (Beijing: Wenwu chubanshe, 2009), p. 111;

29 JY strip no. 285.12, pp. 480–481.

30 In addition, we can find the same practice in JY strip nos. 282.9 a–b, p. 472; JY strip nos. 213.41a–b, p. 333; JYX strip nos. E.P.T.51.225a–b, p. 192; and JYX strip nos. E.P.T. 52.88 a–b, p. 233.

31 Coincidentally or not, these are very similar to the five statutes in the case of Li vs. Kou En.

32 This contrast can also be observed in modern legal systems. For instance, in California, the Small Claims Court ($7,500 and below) will not collect the money for the winning plaintiff. The court merely orders the losing defendant to pay. It is the responsibility of the winning plaintiff to pursue the civil judgment. For example, if the winning plaintiff A encounters the unwilling debtor B, A can ask the court for more help, if he is unable to collect the debt on his own. Usually, the court then entitles A to garnish up to 25% of the amount over the federal minimum wage that B earns. For details, visit These striking similarities between the practices of modern California's Small Claims Court and how the authorities handled Zhang Zong's case that took place in 15 B.C. at Juyan surely suggest the non-criminal nature of the latter.

33 JY strip no. 19.1, p. 29.

34 See p. 18 for details concerning the statutes.

35 See pp. 22–26 for the survey.

36 Or the fragmentary report is simply a summary of a case document.

37 JYX strip no. E.P.T. 52.21, pp. 228–229.

38 This was perhaps related to the Han merit system. For a review of the system, see Gao Heng 高恆, “Handai shangji zhidu kao” 漢代上計制度考, in Qin Han jiandu zhong fazhi wenshu jikao 秦漢簡牘中 法制文書輯考 (Beijing: Shehui kexue wenxian chubanshe, 2003), pp. 320–340;

39 See strip no. 1366 in the “Shiwen” 釋文 section of the Juyan Han jian jia bian, II, p. 57; cf. Loewe, Records of Han Administration, II, pp. 10–11 (my translation follows Loewe with slight modifications). Please note that JY strip no. 259.1, p. 429, mistakenly renders tu (徒) as xi (徒), and this mistake can be identified by checking plate 100 no. 1366, again in Juyan Han jian jia bian. In addition, we perhaps can recover more fascinating details of this Wang Jin vs. Dongmen Fu case by consulting the most recently published Jinguan 金關 strips. However, this will be the theme of an independent article.

40 This also represents a contrast between civil and criminal procedures; the criteria used to determine whether or not to take on a civil case were different from those concerning criminal cases. I will discuss this issue in the next section.

41 In addition, gender was not a problem. Women could also initiate suits concerning debts against military officers. For instance, JYX strip no. E.P.T. 52.201 records a group of women collectively suing two officers over debts (Wang En and others vs. Xu Guang and Wang Gen): “Female Wang En and others (females?) demand debts of 440 cash and 5 shi of millet from houshi [assistant officer to the company head] Xu Guang and section head Wang Gen …” (女子王恩等責候史徐光,隧長王根,錢四百四十,粟五 石 …). Neither was gender an issue in criminal cases since women could make criminal accusations. While this is not a point of contrast, it is still worth noting.

42 There were twenty degrees of ranks in Qin and Han: from the highest, chehou 徹侯 to the lowest, gongshi 公 士. These twenty degrees of ranks have been well-studied. The classic work on the subject Nishijima Sadao's 西嶋定生, Chūgoku kodai teikoku no keisei to kōzō: Nijittō shakusei no kenkyū 中国古代帝国の形成と構造: 二 十等爵制の研究 (Tōkyō: Tōkyō daigaku shuppankai, 1961). Nishijima argued that during the Han dynasty, the orders of honor were not ranks of nobility, because the ranks were not only granted to the nobles but also generally extended to the commoners. He classified the ranks into two categories: 1) ranks for ordinary people (ranks below wudafu 五大夫); and 2) ranks for officials with salaries above 600 shi (ranks above wudafu). Nishijima also pointed out that having social ranks was fairly common to people in the Han dynasty, because there were many channels for them to acquire and increase their orders of honor. For instance, people who had military honors or donated grain to the state could be rewarded with social ranks, and people who were forced to emigrate from their native place to other places could be compensated with orders of honor. The emperor also often granted orders of honor to all his mature male subjects to celebrate certain ceremonials of the royal family, such as the accession of an emperor, heir, or empress.

43 See A. F. P. Hulsewé, Remnants of Han Law (Leiden: E. J. Brill, 1955), pp. 214–224 [hereafter RHL].

44 Ibid., p. 205. For detailed discussions on this matter, ibid., pp. 214–222.

45 Nai 耐 penalty, according to Hulsewé, means to shave off the beard. This means that this penalty only applied to males. See RHL, p. 130. But I find that females were also subject to this penalty. Therefore, I think Cao Lüning's 曹旅寧 interpretation is better. He argues that nai means to shave off the beard and hair on the temples. According to this interpretation, for females, the nai penalty was to shave off their hair on the temples. Here, I adopted Cao's interpretation. Therefore I render nai as “shaving off the beard and hair on the temples.” See Cao Lüning, Qinlü qintan 秦律新探 (Beijing: Zhongguo shehui kexu chubanshe, 2002), p. 222.

46 ZJS (Statutes) strip no. 82, p. 20. According to Zhu Honglin 朱红林, neigongsun 内公孫 refers to the grandsons of the emperor's clan while waigongsun 外公孫 refers to the grandsons of the empress's clan, and the word xing here has a specific meaning: mutilation. See Zhu Honglin, Zhangjiashan Han jian Ernian lü ling jishi 張家山漢簡二年律令集釋 (Beijing: Shehui kexue wenxian chubanshe, 2005), pp. 73–74.

47 ZJS (Statutes) strip no. 187, p. 33. This partly blurs the distinction between criminal and civil matters. I have only found one other instances in which we find a fine stipulated in a civil matter: ZJS strip (Statutes) no. 253 states that if A's live stock eats B's crops, then A will be fined a certain amount of gold in addition to the compensation he/she must make to B. The statute does not say who receives payment of the fine. I suspect that the state receives it.

48 It is worth noting that Qianzhi 強質(extorting pledges) specifically means to detain the debtors by force, according to the editors of SHD.

49 SHD strip (Falü dawen) no. 148, p. 215; cf. RCL, p. 162.

50 Of course, creditors could behave irrationally, but that is a different matter.

51 RHL, p. 11.

52 Quan 券 in this context specifically refers to “contracts.” We have excavated samples of quan, showing that they have the essential features of binding contracts. See pp. 14–16 of this chapter for these samples.

53 Zhouli zhushu 周禮注疏, in Shi san jing zhu shu 十三經注疏 (Ruan Yuan阮元 1815 edition; rpt. Taipei: Yiwen chubanshe, 1976), j. 35, p. 533.

54 Zheng Xuan was a famous legal expert.

55 Zhouli zhushu, j. 3, p. 44.

56 Ibid.

57 JYX strip no. E.P.T. 51.509, p. 213.

58 Lian Shaoming 連邵名, “Hanjian zhong de zhaiwu wenshu ji shimai mingji” 漢簡中的債務文書及貰責 名籍, Kaogu yu wenwu 考古與文物 (3/1987), pp. 77–83;

59 Li Junming 李均明 Qin Han jiandu wenshu fenlei jijie 秦漢簡牘文書分類車葺解 (Beijing: Wenwu chubanshe, 2009), pp. 436–437. The seventeen contracts are JY strip nos. 26.1, 91.1, 163.3, 163.16, 184.3, 262.16, 262.29, 273.12, 557.4, 564.7; JYX strip nos. E.P.T. 52.323, E.P.T. 52.460, E.P.T. 57.71, E.P.T. 59.555, E.P.T. 222.419 a–b; DH strip nos. 1449 a–b, strip nos. 1708 a–b. “DH” stands for

60 JY strip no. 262.29, p. 436.

61 The meaning of zhichun 至春 is unclear. Is it one word, which is a synonym of lizhu 立春 (Start of Spring) that is one of the twenty-four climatic seasons? Or does zhichun represent two words, zhi (till) and chun (Spring)? In the other two contracts, the word zhi clearly means “till”, thus, I believe that zhi in this contract also means “till”. However, there is another possibility: zhichun could read zhi zhichun, while the second zhi is dropped either for convenience or by transmission error. In addition, there is one more possibility: zhichun could read zhi chunfen 至春分 (till Spring Equinox) with the last word fen dropped by mistake. In sum, the chun here could refer to either the Start of Spring (February 4th or 5th) or the Spring Equinox (March 21st or 22nd).

62 JY strip no. 26.1, p. 38.

63 Ibid.

64 DH strip nos. 1449a–b, p. 150.

65 JYX strip no. E.P.T. 54.9, p. 301.

66 Just to remind my reader, this case consists of two separate sub-cases: liabilities of Kou En and the crimes of Li.

67 Wu Rengxiang et al., Dunhuang Hanjian shiwen, strip no. 2011, p. 215.

68 The statute referred to demonstrates that there were indeed statutes that dealt with civil matters. We will return to this point later.

69 ZJS (Statutes) strip no. 50, p. 15.

70 ZJS (Statutes) strip no. 253, p. 43.

71 The word bai 敗 usually means “defeat” or “spoil,” but the editors suggest that the word means “frighten” in this context.

72 SHD strip (Falü dawen) no. 158, p. 219; cf. RCL, 165. Here, 6 chi=1.57 m is used to determine one's “legal” age, i.e. the qualification for enrollment as adults. See Hulsewé 's explanation for this practice in RCL, 122, 138,165. My translation follows Hulsewé.

73 Ruhui 入毀 perhaps also refers to actions that result in the ruin of official property under circumstances that were partially forgivable.

74 These two terms, rusi 入死 and rushang 入傷, are difficult to translate. The problem is the modifier ru. I do not know what it precisely means here. Neither the editors of ZJS nor Zhu Honglin offer any opinion as to the meaning of the word. The context shows that rusi and rushing perhaps refer to actions that caused the death or injury of official livestock under circumstances that were partially forgivable.

75 ZJS strip (Statutes) nos. 433–434, p. 68.

76 In modern societies, when a governmental agency sues an individual to demand repayment of a debt, even though the public interest is clearly involved, the case would be taken as if it involved two individuals (a legal person vs. a natural person), instead of state vs. individual. Therefore, it is still treated as a civil matter. This theoretical articulation did not exist in Han China, but ZJS strip (Statutes) nos. 433–434 show that a similar practice did exist. One question we cannot answer is: can a slave (or indentured servant) demand repayment of debt? At this time, we know of no cases.

77 See Shao Zhong's case above. Also see ZJS (Statutes) strip nos. 50, 253, 433–434, and SHD strip (Falü dawen) no. 158.

78 RHL, pp. 339, 341.

79 Ibid., pp. 102–109.

80 Ibid., pp. 102–155.

81 For the details, see my study on the ZJS strip (Statutes) nos. 82, 134 above. Cf. RHL, pp. 214–224.

82 Juyan strips were found in Inner Mongolia, during two separate excavations, as described in note 12 above. In addition to these early expeditions, the Gansu Institute of Archaeology conducted further work from 1990 to 1992, during which some 23,000 strips were found in Xuanquan 懸泉, Dunhuang 敦煌, which is very close to Juyan. These Xuanquan strips dated from 111 B.C. to A.D. 107. Unfortunately, only a selection of 300 strips has been published in Hu Pingsheng 胡平生 and Zhang Defang 張德芳 (eds.), Xuanquan Hanjian shicui 懸泉漢簡釋粹 (Shanghai: Shanghai guji chubanshe, 2001). It is very striking that even this small sample of the Xuanquan strips include legal documents such as wanted circulars, edicts of amnesty, and statutes. We can only imagine the many ways in which the entire collection of Xuanquan strips will contribute to our deeper understanding of Han laws.

83 For detailed analysis of these terms, see RHL, pp. 73–80; cf. Gao Heng, “Handai susong zhidu lunkao,” pp. 409–467.

84 That does not mean the rest was not originally dated. But the material that survives provides no clue. Among the twenty cases, non-criminal and criminal, whose dates are identifiable, the earliest is from 77 B.C. (murder), while the latest one is from A.D. 30 (misconduct).

85 My opponent may question me: was this phenomenon typical for Han China as a whole? While I cannot answer this with certainty, we can however speculate that the extremely high frequency of debt disputes and the high frequency of transaction disputes may have been peculiar to this region. Since Juyan was the communication hub of the Silk Road, we can imagine that its residents by and large had some direct or tangential involvement in commercial activities. However, records of many cases involving inheritance and land disputes are found in transmitted Han texts that relate to regions other than Juyan. For example, according to the Hanshu, the Yingchuan 頴川 commandery, which is in the middle of Han China, was notorious for frequent disputes over household divisions among its residents (Hanshu 漢書 [Beijing: Zhonghua shuju, 1982], j. 28, p 1654). There is a very long last will excavated from Yizheng 儀征, Jiangsu, in southeastern China (Chen Ping 陳平 and Wang Qinjin 王勤金 “Yizheng Xupu 101 hao Xi Han mu Xianling quanshu chu kao” 儀征胥浦 101 號西漢墓先令券書初考 Wenwu [1/1987], pp. 20-23). Moreover, the Zhangjiashan strips (Hubei) excavated in 1983 yield at least three sets of statutes concerning civil matters as land ownership, division and inheritance of households, and female property “rights: these statutes include Statutes on Households (hulü 戶律), Statutes on Establishing Heirs (zhihoulü 置后律), and Statutes on Registration (fulü 傅律); see Zhangjiashan ersiqi hao Hanmu zhujian zhengli xiaozu 張家山二四七號漢墓竹簡整理小組, “Jiangling Zhangjiashan Hanjian gaishu” 江陵張家 山漢簡概述, Wenwu (1/1985), pp. 9–15. Also see ZJS, pp. 51-56, 57–62.


Export Citation