Taipei: Wu-nan Book Inc., 2008
Reviewed by LI Cho-ying (Assistant Professor, Graduate Institute of History, National Tsing Hua University, Hsinchu, Taiwan)
When Laws Meet Economy: Commercial Law in Ming-Qing China is a collection of revised articles by Chiu Peng-sheng, currently an Associate Researcher at Academia Sinica and formerly a Harvard-Yenching visiting scholar, 2002-2003. In response to the stereotypical impression of commercial law in Chinese history, as absent or underdeveloped, the author sets out to show that commercial law not only existed, but also underwent significant change in the last five centuries of late imperial China. Rather than simply selecting elements that are similar to European commercial law, and thereby demonstrating the existence and function of such law in China, the author instead achieves his goal by examining the laws that positively defined the relationships between commerce and merchants. To be more specific, the author investigates these laws in terms of (1) commercial lawsuits handled within the framework of Ming-Qing regulations and laws, and (2) the practice and legal reasoning of those whose roles in the study, implementation, and adjustment of regulations and laws were critical to the development of the market in Ming-Qing China. These legal professionals included officials of the Ministry of Justice, private secretaries (muyou, 幕友), and legal masters/litigation brokers (songshi, 訟師). Scholars and students will benefit enormously from reading this informative and well-researched book. The author offers his insights into the workings of the Chinese legal system by careful analysis of a number of neglected cases and understudied books. He situates the cases in contexts in which social sentiment, economic development, and institutional mechanisms changed the involved parties’ attitudes toward commercial activities. By examining these materials, the author shows how merchants and people in the legal profession were limited by the conditions set by commercial law, and how they could also contribute to the change of those conditions. In other words, the author achieves his ambitious goals.
The book contains seven chapters. The first chapter, “The Transformation of Market Regulations in the Ming and Qing Legal Code,” discusses how the government altered the laws to keep pace with changing market institutions. It argues that the establishment of the broker entitlement system (guanyazhi, 官牙制) and the narrowed scope of price control are indicative of a government that was not only willing to protect merchants’ property rights, but also respectful of market dynamics. The second chapter, “Two Value Systems That Underpinned Legal Knowledge in the Late Ming,” focuses on the editing, publishing, and reading of two major legal works by a family in Jintan (金壇, in today’s Jiangsu province). It shows that while Wang Qiao (王樵), the father, considered legal knowledge as one of the possible ways of enhancing the Confucian cause, Wang Kentang (王肯堂), his son, conceived of legal knowledge as a more autonomous scholarship, one that required special attention to the principles and implementations of the law. The third chapter, “The Rise of Litigation Masters and Private Secretaries and Their Impact on Legal Norms,” turns to the process by which litigation masters and private secretaries became indispensable constituents of Ming-Qing legal practice. The author demonstrates that though the rise of litigation masters and private secretaries was an unintended consequence of two institutional reforms—the strengthening of the judicial review and ratification system (shenzhuan, 審轉), and the reinforcing of the regulations on ruling deadlines (shenxian, 審限)—they eventually furthered the professionalization and interest-oriented tendency in the profession of law. The fourth chapter, “Legal Reasoning in the Collections of Penal Cases,” carefully analyzes three collections of penal cases. Given the difference in their concerns, the author concludes that the growing interest in legal cases from the sixteenth century onwards was due to the efforts of legal professionals to address the tension between the law and its legal application. The fifth chapter, “Legal Criticism and Legal Reasoning in the Seventeenth Century,” examines the criticism, rhetoric, and reasoning employed in a number of books and law cases to show the emergence of systematized legal knowledge and of the legal discourses that justified the protection of merchants’ interests in terms of their contributions to state revenues. The sixth chapter, “The Insolvency and Negligence Discourses in the Eighteenth Century Commercial Law,” uses a number of lawsuits that involved pawn shops, dyeing mills, multiple authorities in the judicial review and ratification system. It demonstrates that a more refined definition of insolvency and negligence responsibilities was a product of a series of debates. The topics of these debates included merchants’ social contributions, the relationship between righteousness and profit, and the application of the law to actual situations. The seventh chapter, “The Suzhou Gold Foil Case and Commercial Law in the Late Qing,” concentrates on a prolonged case in which a diversity of forces, including the Qing government, merchant organizations, and foreign advisors collaborated and produced legislation prohibiting monopolies and protecting patents.
The achievements of this persuasive study are a reflection of the author’s solid training in economic and legal history and wide range of interests, including the history of the book, religious studies, cultural studies, and so forth. He is able to see the relevance of apparently unrelated issues to produce forceful arguments. For example, when ledgers of merit and demerit (gongguoge, 功過格) became a popular practice in the late Ming, how would literati who were serious about the law conceive of the relations between their interest in legal knowledge and that common practice? The author provides us two concrete instances—Wang Kentang and Wang Mingde (王明德). Both instances illustrate the great pressures generated by the ledgers of merit and demerit—which warned those who pursued legal knowledge that bad retributions would follow, and urged those in charge of penal cases to reduce the punishment. However, as the author convincingly argues, Wang Kentang reinterpreted the warning as an encouragement to study every aspect of the law including its spirit and its implementation, in order to make correct judgments and allot fair treatment. Wang Mingde severely criticized people who, under the influence of the ledgers of merit and demerit, thought that lightening the punishment would bring them and their descendants wealth and happiness. He faulted them for maximizing personal gains at the expense of justice and, equally important, blurring the distinction between public matters (gong, 公) and private matters (si, 私). By investigating these two concrete instances, the author successfully situates the conviction of the value of legal knowledge in the wider cultural world of the late Ming. This achievement will surely be appreciated by historians in many different areas.