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05 - Legal Treatment and Status Differentiation in Early China and Ancient Rome
In this paper, I investigate the relationship between social status and legal treatment in early imperial China, roughly from the third century BCE throughout the first century CE. I argue that on the one hand, the privileged groups received more favorable legal treatment than the remaining social members; on the other hand, the judicial discrimination contributed to the social distinctions through the application of perpetual stigma signifying criminality and degradation.
The early imperial period is at a turning point when Chinese legal system was developing from "status law" as its mainstream form to "punitive servitude" as the main form of the punishment. In the pre-imperial period, social members can roughly be divided to be grandees and commoners defined by one's aristocratic origin and whether one holds a public office. According to the Confucian ritual protocol, mutation punishments, which was the main form of punishments at this time, did not apply to the grandees. Due to the traditional concept of valuing bodily intactness, receiving mutilation punishments means being excluded from one's natal familial lineages and "community of honor." Even after being released, they had to work in restricted government-owned places and were named as "hidden laborers." In other words, mutilation punishments would degrade convicts into a perpetual discriminated and even servile status.
The early Chinese empires witnessed two institutional changes that reshaped the relationship between status and legal treatment. First, the establishment of the twenty orders of honor, which is an open system to all social members based on their military and labor services, and carried with it various legal and economic privileges. Orders of honor can mitigate legal punishments in two major ways: 1) it can be used to directly offset and avoid punishments by certain degrees; 2) for the same crime, people holding different orders of honor would receive different degrees of punishment. Second, in the legal reformation occurred in 167 BCE, the various mutilation punishments were replaced by precisely articulated convict labor service terms. At the same time, newly developed "symbolic mutilation punishments" such as shaving one's head, putting on shackles and wearing clothes with conspicuous colors were applied along with the servitude labor services, to stigmatize convicts with visible identifiers in place of mutilations.
I argue that twenty orders of honor established a value equation system and conversion mechanism involving human labor, social status, political privileges, and judicial treatment, and promulgated number-based matrices for various social situations. The monetization of orders of honor, and number-based hierarchy of crime and punishments together resulted in the commodification of social status and defined the fungible characteristics of social status in China.
Legal privilege is not a phenomenon peculiar to early China. Status as a determinant of how a person interacts with law, and the existence of legal privileges and legal inequality is also normal in other pre-modern societies such as ancient Rome In this research, I am going to use the Roman Empire as a comparative object and reference point. I am particularly interested in the "dual penalty" system regarding the distinction in judicial penalties between honestiores and humiliores in Roman Empire. I aim to explore how the Roman notion and practice of juridical inequality are similar to and different from the early imperial Chinese understanding of legal inequality, and what roles that social status played in the two societies.
Presenters
Yifan Zheng, University of California, Berkeley
SCS-4
