August 2011

By Jérôme Bourgon and Paul R. Katz

Part II

Read Part I of this debate here.

The continuum continued
PK: The key difference in our views lies in the way we define the term “continuum”. This can be seen in the following two statements: a) “The term continuum causes us to believe that there is something like a continuity between earthly and underworld justice, or at least that both were included in a coherent framework”; b) “Continuum leads one to expect not mere co-existence but a real coherence or a continuous sequence in which adjacent elements are not perceptibly different from each other, although the extremes are quite distinct”. If I understand you correctly, you seem to be arguing in favour of identity transcending differentiation, while I am stressing continuity amidst difference. I think my definition better reflects the term’s etymology, including the Latin continuus. The Latin term can mean both “continuous and uninterrupted” and “following one after another, successive, continuous”, including days, consulships, battles, itineraries, labours. In my book, I use the term to describe a continuous spectrum of judicial beliefs and practices, linked by the overarching “ideology of justice” but differing in time, agent, and intent. To me, the fact that the adjective describes very different consulships, battles, itineraries, and even days as successively linked (continuous) would seem to support my usage.

Torture implements

One example of what I am talking about may be found in your observation that, “In practice, repeated pressure tend to blur the difference, all the more so since there was no clear distinction between ‘sin’, ‘crime’, and ‘fault’ (all were zui 罪)”. This is exactly my point: the blurring you refer to represents the results of overlap, and shows the existence of the continuum. I appreciate that you go on to point out that, “However the code and judicial decision show that the legal system resisted to pressure, and reinforced the differences between breaches of moral-religious duties and crimes against the law. This is the place where law institutionalizes a breaking point between religious and secular conception —a break in the ‘continuum’, precisely”. I agree that differences existed, and that each conception had its own unique features, but the interaction between these elements suggests that a continuum did exist. Also, are differences and breaks identical phenomena? And, conceptually speaking, if you are indeed arguing in favour of a “break”, then aren’t you conceding the continuum’s existence, as only something continuous can be broken?

I also concur with the statement “…when you consider Chinese judicial practice of say the Ming and Qing, supernatural interferences are strikingly scant when compared to Christian Europe”, but how does this disprove the existence of a continuum? I am also a bit wary of measuring China against the West in order to prove a point (the old question of “Why didn’t China develop according to Western models?”)

You then proceed to argue that “The popular religious vision certainly must be taken into account, all the more since it was reckoned and used (manipulated?) by sensible magistrates. But the official vision should not be overlooked”. I totally agree, but what’s really interesting is how and why officials chose to use (or modify) the popular vision.

Judgment after death: A view of the Department of suffering and misery 苦楚司 in the Eastern Peak temple (Dongyuemiao) of Beijing

Exhuming executions
JB: The expression “hermetic separation” applies to executions. It stems from the statement of fact that Chinese executions were secularized when compared to Western executions, which were manned and frequently staged by Christian priests, and were conferred soteriological functions (a criminal could gain salvation via good Christian behavior during execution). The torture of the Chinese underworld belongs to a karmic economy, which is not linked to human justice. This is a point where the “continuum” seems hard to evidence: if “continuum” there was, did Buddhist or Taoist priests pray for those condemned by manly justice? Were there special rituals for convicts condemned to death? Was there some link between human punishments (say lingchi 凌遲), and the tortures inflicted (or spared) on the dead in underworld prisons? Was there balance, compensation, or any link? Did a criminal’s attrition and contrition during execution help his/her future fate in the underworld, not to mention future reincarnation?

Religious commitment and staging in Western execution vs. Mundanity and matter-of-factness of Chinese executions: On the execution field in France, 1766

For now, I have more secular than religious signs of the humanitarian treatment of the condemned (i.e. meals or drinks offered to them by state institutions, as opposed to civil-religious associations), but this point would need more research.

Religious commitment and staging in Western execution vs. Mundanity and matter-of-factness of Chinese executions: Chinese representation of a public execution, c. 1880

PK: You argue that, “China was this civilization where the executions of the living, though ubiquitous in public places, were no matter to narrative, pictures, or memory of any kind; and where torture and executions were reserved for the dead, as far as imagery, narratives, and vivid memory are concerned”. I largely agree, especially in terms of the “imbalance between under-represented real executions and over-represented hell tortures”. Nonetheless, the claim that such acts “were no matter to…memory of any kind” seems a bit too strong. There are scenes of these deeds in novels like the Shuihu zhuan 水滸傳, as well as the late Qing illustrations presented in Death by a Thousand Cuts.

I am also curious about the assertion that “criminals who were publicly executed…were not granted any religious assistance”. While one would hardly expect to find records of Buddhist or Taoist religious specialists performing the last rites, some works of fiction indicate that the condemned were taken to underworld deity temples before being executed. This is still done in Taiwan today, with non-Christian condemned criminals worshipping images of the Bodhisattva Dizang 地藏 placed outside the execution site (see the here, here, and here, as well as the photo below), but perhaps this is partly a result of Japanese or Christian influence?

Regarding the argument that executions were events “…where the ‘continuum’ between human and divine realms is the most questionable”, I did not discuss executions in my book, which was clearly a significant oversight. You make some excellent points here, and I especially appreciate the exciting new data on prison temples. However, my interpretation of this data seems to differ from yours, while also being inspired by your observation that, “…at the very core of the penal machinery wherefrom capital criminals were sent to their death, we find an intense religious activity aimed at purifying the place of the vengeful miasma that may have been left behind. A highly significant cult, indeed, but a private one, so to say, practiced by the officials isolated in the prison precincts”. In other words, what is most important here is not that Chinese executions lacked religion, but that religion was observed in a private setting (this is also the case in Taiwan today, as can be seen from the news stories I sent you previously), as opposed to the very public way religion figured into Western executions.

Parting shots
PK: It is clear that we still differ on the relationship between different forms of judicial practice, as can be seen by your statement that, “…received knowledge as well as our sources at the moment force us to set apart human and divine justice”. My book acknowledges that human and divine justice differed, yet also tries to show that the entirety of Chinese legal culture featured a coherent framework whereby human and religious conceptions of justice not only coexisted but interacted in terms of both belief and practice. The human and religious realms had their own unique features, yet they also shaped each other. That’s why I argue for the existence of a continuum. In other words, we can recognize the differences and integral elements of each form of justice without arbitrarily separating them.

“For the legal historian, the great question is how far all this procedural intercourse with the underworld influenced justice in this world”. This is indeed the great question. I tried to provide some answers in my book, but am far from satisfied. Any further insights would be most appreciated!

JB: To wrap up my point of view at the present moment, I would say that Chinese religion replicates justice in the imaginary underworld: ritual indictments emulate judicial decisions and compensate miscarriages of justice, while underworld torments replicate and exaggerate legal punishments, and complement the idea that no crime will escape its necessary and legitimate punishment. But Chinese religion seems unconcerned by the passage from this world to the other when justice is at stake. The judiciary and indictment rituals, legal punishments, and hell torments appear more like mirrored representations than as a “continuum”. More research and exchange between religious and legal historians will be needed to ascertain your highly stimulating hypothesis regarding the judicial continuum, but I am eager to learn more and change my mind, just like my perception of justice has changed after reading your Divine Justice.

By Jérôme Bourgon and Paul R. Katz

The following debate between Jérôme Bourgon and Paul R. Katz treats one of the most important issues in the study of Chinese social history in general and Chinese legal culture in particular, namely the striking similarities, or correspondences, between litigation and judicial rituals performed to resolve disputes or even deal with plaints filed by the dead.

Our main concern revolves around the concept of the “judicial continuum”, defined in Paul’s recent Divine Justice book (Routledge, 2009) as a holistic range of options for achieving legitimation and dispute resolution, including mediation (judgments made by elders and other elites), formal legal procedures (judgments made by officials), and performing rituals (judgments made by the gods). Depending on the nature of the dispute and the status of those parties involved, people could choose one or a combination of these options. Moreover, a wealth of evidence indicates that officials would not hesitate to rely on dreams and other forms of divine intervention to solve difficult legal cases, right instances of injustice, capture bandits/thieves, and even fight spirits that haunted their offices or homes. All this suggests that China’s judicial continuum covered both the official and religious realms, with considerable interaction occurring between the two.

Jérôme questioned the above arguments from the vantage point of judicial practice and legal codification, arguing that the available evidence forces us to rigorously qualify any claims about human and divine justice constituting a seamless cloth, as well as the ways in which judicial rituals may have shaped official legal practices. The main thrust of his analysis is that there was an institutional division between formal legal practice and judicial rituals, with the latter exerting precious little impact on the former. Jérôme’s analysis was quite sharp at the outset, but gradually softened as he became aware of the complexity of the issue and of the potential usefulness of this concept.

Our debate commenced with Jérôme’s conference paper (presented in Beijing) and has continued over many a month. Both of us have gained numerous insights as a result of this process, so we decided to share some of its highlights with the academic public sphere represented by The China Beat. Ultimately, our debate bears on how the ritual and official aspects of Chinese legal culture were meshed together to imbibe the Chinese mind with the belief that the whole moral universe was a huge net allowing no escape for any criminal or sinner. A better understanding of this interrelation, or division of labor, between human and divine justice will require more regular exchanges and tighter collaboration between historians of religions and legal historians.

An underworld court

Part I

Opening ceremonies
PK: Let me begin by stating how much I appreciated the breakthroughs contained in Death by a Thousand Cuts (Harvard, 2008), which is cited a number of times in my own book. Of particular value for my research was the stimulating analysis of the “distorting mimesis” of the homology between worldly legal institutions and their representations in Chinese religious traditions, with depictions of underworld torments serving to remind viewers of earthly punishments, even if such punishments were not identical. I found additional insights in your paper as well, one example being the fascinating point that “Chinese justice was represented in the West by tortures that specialists now easily localize in hell, but which were taken as sketches of real life by 19th century Europeans”.

JB: I take this debate as the first step in a long-term scholarly endeavor where we really tackle all dimensions of justice, to take a whole picture on it, including the institutional and individual sides. The richness of Divine Justice is in its vivid descriptions of various judicial rituals, ranging from oaths sealed with the blood of beheaded chickens to processions of penitents disguised as would-be condemned criminals, while also covering a great array of rituals allowing living people to indict other living persons or ghostly foes or even incompetent divine officials, and to be indicted by them as well. However, the influence that judicial indictments and other religious practices may have had on the course of official justice is not always clearly evidenced and qualified.

The continuum
PK: It seems to me that our main point of disagreement is about how to conceptualize what I call the judicial continuum. Let me begin by quoting one definition of the term continuum: “A continuous extent, succession, or whole, no part of which can be distinguished from neighbouring parts except by arbitrary division”. In other words, to me the word “continuum” suggests a range of interrelated phenomena, not equivalence. Therefore, mediation, the courts, and ritual can be conceived of as constituting a Chinese judicial continuum, even though they are hardly identical phenomena.

I am unclear about the following assertion that you made in your paper: “More than forming a continuum, human and divine justice seem two worlds co-existing side by side, with relatively few interlinking”. Conceptually speaking, why does co-existence involve more than the formation of a continuum? Isn’t co-existence a precondition for the formation of a continuum?

You also state that, “…there was no identity, since hell punishments targeted sin, and were therefore moral-oriented, while penal codes targeted crimes, by restrictively defining them and neatly differentiating them from sin”. The distinction is valid, but perhaps also a bit too rigid? Was there no moral dimension to the ways in which crimes were defined in official legal writings?

You observe that, “…many punishments reported from Chinese hells by their visitors seem more like symbolic contrapasso (counterpoise; punishment resembling or contrasting with sin) than like codified punishments enumerated in the books or pictured in their illustrations” This makes perfect sense to me, as I never argued in favour of an identity between human and divine justice, merely similarity and overlap. I would respond in the same way to your observation that, “…these rituals were not submitted to the same formal constraint as the legal procedure imposed to plaintiffs”.

A similar problem occurs when you argue that, “Chinese justice still appears as remarkably immune from divine interferences, when compared to other civilizations”. This is absolutely true, and I made this point very clearly in my book, especially in Chapter 2 and the end of Chapter 3, where I discussed the Chinese state’s decision not to include judicial (or inaugural oaths) as part of its quest for a “modern” government. However, some legal officials have allowed judicial rites to be performed in their courts, or relied on such rites to assess guilt or innocence of plaintiffs and defendants. Other officials have gone so far as to file plaints at temples to judicial deities. In other words, the segregation between ritual and formal judicial practice might not be as rigid as assumed.

Death represented as a departure for legal exile, under escort by a runner and pressure from a demon

“I must confess that I do not see what relations these sonorous spells and these highly colored ceremonies had with judicial practice, or even with the ‘ideology of justice.’” This is a valid point. In the book, I note that oaths were not a part of official legal practice, and that late Qing officials rejected the option of including such practices in modern court procedures. However, while some oaths involved issues of loyalty and/or legitimation, others were intended to determine guilt or innocence, with chthonic deities serving as both witnesses and judges. These latter rites are linked to processes of dispute resolution (particularly issues similar to what we now call “civil law”), and feature individuals often referred to as plaintiffs and defendants; Still, you are right—such rites might best be referred to as “semi-judicial” or “quasi-judicial”. However, I chose to emphasize the issue of continuity in order to tempt readers to reconsider preconceptions of Chinese law as restricted to formal judicial procedures.

“There was no need to resort to a legal scrivener”. In some cases, yes, but while worshippers could write their own plaints or simply present them orally, there are many example of plaints being written down by temple scribes (bisheng 筆生) like the one described in Chapter 8 of my book.

JB: I understand what you had in mind when you put forward the concept of the judicial continuum. However, I still have objections to the term—if not to the basic idea. I discuss below some of the points you raised.

I am effectively challenging, or more exactly testing this new concept, which is the best way to take it into account. Your definition raises questions, especially the claim about “arbitrary division”. Such a division was, unless proven otherwise, an institutional fact: there was no point of quoting “underworld decision” or interference in a legal judgment, and even mediation seems to be a rather secular practice. For instance, the impact of oaths or other forms of swearing on judicial practice itself is not evidenced. This is a highly relevant point about the mental atmosphere that surrounds judicial institutions. Highlighting the spiritual context of judicial decisions should be a proficient breakthrough, since judgments do not only aim at institutional validation, but also at reaching people’s minds, which can be religious, concerned with underworld justice, etc. But continuum lets me expect there is something like a continuity between earthly and underworld justice, or at least that both were included in a coherent framework. And this is where there’s the rub.

Judgment after death: A view of the Department of suffering and misery 苦楚司 in the Eastern Peak temple (Dongyuemiao) of Beijing

Your point about the moral dimensions of legal writings in an important one, since law exists as a restricted area in the moral universe. Basically, and originally, all faults are sins. But with the building of law and jurisprudence, only a part of these faults-sins are deemed “crimes” and made punishable. I quoted the “Ten evils” (shi’e 十惡), an originally Buddhist list of misdeeds that became, after modifications, the second article of imperial codes from the Tang through the Qing, as the most perceptible mark of the doctrinal work that sets apart “sins” and “crimes”. In practice, repeated pressure tend to blur the difference, all the more so since there was no clear distinction between “sin”, “crime”, and “fault” (all were zui 罪). However the code and judicial decision show that the legal system resisted such pressures and reinforced the differences between breaches of moral-religious duties and crimes against the law. This is the place where law institutionalizes a breaking point between religious and secular conception —a break in the “continuum”, precisely.

As for the issue of both separation and interaction, both of us may be right: it seems clear that the earthly judicial system is the model for indictment rituals, so that seen from perspective of the latter there is a “continuum”. However, when you consider Chinese judicial practices of say the Ming and Qing, supernatural interferences are strikingly scant when compared to Christian Europe. Law instituted a secular vision of society; you are right to say this is “artificial”, since real society was religious, bound to the underworld, etc. But, I am to be the speaker of this legal fiction of a purely human justice, without divine interference, since I believe it was the Chinese official vision. The popular religious vision certainly must be taken into account, all the more since it was reckoned with and used (manipulated?) by sensible magistrates. But the official vision should not be overlooked, since it animated institutions that proved quite sound, and efficiently resisted popular “superstitions”.

I maintain that received knowledge as well as our sources at the moment force us to set apart human and divine justice. Continuum seems to imply more than co-existence, namely a real coherence or a continuous sequence in which adjacent elements are not perceptibly different from each other, although the extremes are quite distinct. Continuity must be shown to exist through evidence.

Jérôme Bourgon is a researcher at the Institut d’Asie Orientale; Paul R. Katz is a Research Fellow at the Institute of Modern History, Academia Sinica.

Check back soon for Part II of the debate between Bourgon and Katz.