Abstract
Making convictions by law and making judgments by analogy were totally contradictory with each other in form; however, they had actually existed in the development of Chinese ancient law and run through the thousands of years of progress of legal system, although there were different emphases for different historical stages. For this reason, the development of the legal system had been restricted by the adjustment and evolution of this contradictory relationship, which had formed the unique tradition of the Chinese law.
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Notes
- 1.
“Zhao Gong Liu Nian” (The 6th Year of Lu Zhao Gong) in Zuo Zhuan (The Chronicle of Zuo), annotated by Kong Yingda.
- 2.
“Zhao Gong Er Shi Jiu Nian” (The 29th year of Lu Zhao Gong) in Zuo Zhuan (The Chronicle of Zuo).
- 3.
“Da Lue” (The Great Compendium) in Xunzi.
- 4.
“Ren Fa” (Relying on Laws) in Guan Zi (The Book of Master Guan).
- 5.
“Shang Xing” (Rewards and Punishments) in Shang Jun Shu (Book of Lord Shang).
- 6.
“Ding Fen” (Defining a Person’s Social Status) in Shang Jun Shu (The Book of Lord Shang).
- 7.
“Qin Shi Huang Ben Ji” (Records of Qin Shi Huang) in Shi Ji (The Records of the Grand Historian).
- 8.
Ibid.
- 9.
“Xing Fa Zhi” (The Record of the Criminal Law) in Han Shu (The History of Former Han Dynasty).
- 10.
“Qin Shi Huang Ben Ji” (Records of Qin Shi Huang) in Shi Ji (The Records of the Grand Historian).
- 11.
Ibid.
- 12.
“Xing De” (The Penal Morality) in Yan Tie Lun (Discussions on Salt and Iron).
- 13.
“Yuan Fa” (On Law) in Jian Lun (Essential Discussions).
- 14.
Ru Xue Fa Xue Fen Qi Lun (On the Discrepancies between Confucianism and Legalist School).
- 15.
“Xing Fa Zhi” (The Record of the Criminal Law) in Han Shu (The History of Former Han Dynasty).
- 16.
“Xing Fa Zhi” (The Record of the Criminal Law) in Jin Shu (The History of Jin Dynasty).
- 17.
“Xing Fa Zhi” (The Record of the Criminal Law) in Han Shu (The History of Former Han Dynasty).
- 18.
“Heng Tan Zhuan” (The Biography of Heng Tan) in Hou Han Shu (The History of Latter Han Dynasty).
- 19.
“Xuan Di Ji” (The Biography of Emperor Xuan) in Zhou Shu (Book of Zhou).
- 20.
“Xing Fa Zhi” (The Record of the Criminal Law) in Wei Shu (The History of Northern Wei Dynasty).
- 21.
“Xing Fa Zhi” (The Record of the Criminal Law) in Jin Shu (The History of Jin Dynasty).
- 22.
Ibid.
- 23.
“Xing Fa Zhi” (The Record of the Criminal Law) in Sui Shu (The History of Sui Dynasty).
- 24.
“Making Convictions without following Laws and Orders” in “Duan Yu” (Trials and Punishments) in Tang Lv (Tang Code).
- 25.
“Za Yi” (Miscellaneous Discussions) (Book 2) in “Xing Wu” (Penal Code 5) in Tong Dian (The General Codes), Vol. 167.
- 26.
Ibid.
- 27.
Zi Zhi Tong Jian (History as a Mirror), Vol. 194.
- 28.
“Xing Fa” (The Criminal Law) in Zhen Guan Zheng Yao (Essentials about Politics from Zhen Guan Reign), Vol. 8.
- 29.
“Xuan Ju” (Official Election) in Song Hui Yao (Collections of Historical Records in Song Dynasty), Vol. 13, Article 11.
- 30.
Xu Zi Zhi Tong Jian Chang Pian (Sequel to the Full-length Zi Zhi Tong Jian: History as a Mirror) written by Li Tao in Song Dynasty, Vol. 266, July, 18th, the eighth year of Xining.
- 31.
“A Memorial about the division of duties in settling cases by ‘Xing Bu’ (Board of Punishment) and ‘Da Li Si’ (The Court of Judicial Review)” in Li Dai Ming Chen Zou Yi (Memorials Submitted to the Throne by Important Officials for Successive Dynasties), Vol. 217.
- 32.
“A Memorial about Forbidding ‘Tui Si’ (the official in charge of tracking down the criminal ) to Discuss Official Business with ‘Fa Si’ (The Office of Justice)” in Li Dai Ming Chen Zou Yi (Memorials Submitted to the Throne by Important Officials for Successive Dynasties).
- 33.
Ibid.
- 34.
Ming Gong Shu Pan Qing Ming Ji (Collections of Enlightened Judgments), Zhonghua Book Company, 1987, pp. 106–107.
- 35.
“Redemption of the Pawned Lands and Properties Should be Dealt with either in Cash or Paper Currency, or half in each, according to the Condition of the Original Transaction” in Ming Gong Shu Pan Qing Ming Ji (Collections of Enlightened Judgments), Zhonghua Book Company, 1987, p. 311.
- 36.
Ming Gong Shu Pan Qing Ming Ji (Collections of Enlightened Judgments), Zhonghua Book Company, 1987, p. 564.
- 37.
“Yin Jian She She” (to transport the women who had committed adultery to distant places to be the wives of soldiers as a punishment) in Ming Gong Shu Pan Qing Ming Ji (Collections of Enlightened Judgments), p. 449.
- 38.
Xu Zi Zhi Tong Jian Chang Pian (Sequel to the Full-length Zi Zhi Tong Jian: History as a Mirror), Vol. 66, July, 19th, the fourth year of Jingde period.
- 39.
“Xing Fa” (The Criminal Law) in Song Hui Yao (Collections of Historical Records in Song Dynasty), Vol. 1, Article 3.
- 40.
“Zhi Guan” (State Officials) in Song Hui Yao (Collections of Historical Records in Song Dynasty), Vol. 79, Article 6.
- 41.
“Xing Fa” (The Criminal Law) in Song Hui Yao (Collections of Historical Records in Song Dynasty), Vol. 1, Article 21.
- 42.
Ibid.
- 43.
Ibid., Vol. 15, Article 25.
- 44.
Ibid., Vol. 79, Article 6.
- 45.
“Xing Fa Zhi” (The Record of the Criminal Law) in Song Shi (The History of Song Dynasty).
- 46.
“Ji Wei Zhao” (The Imperial Edict for Enthronement) in Huang Ming Zhao Ling (Imperial Edicts in Ming Dynasty), Vol. 19.
- 47.
Da Qing Hui Dian (The Collected Statutes of Great Qing), Vol. 54.
- 48.
“Zhang Tang” (An official in Han Dynasty) in “Ku Li Lie Zhuan” (The Biographies of Cruel Officials) in Shi Ji (The Records of the Grand Historian).
- 49.
“Du Zhou Zhuan” (The Biography of Du Zhou) in Han Shu (The History of Former Han Dynasty).
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Zhang, J. (2014). Making Convictions by Law and Making Judgments by Analogy. In: The Tradition and Modern Transition of Chinese Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-23266-4_13
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