Cong rouxing dao liuxing: Han Tang zhijian xingfa zhidu de biange 從肉刑到流刑：漢唐之間刑罰制度的變革 [From Corporal Punishment to Banishment: The Evolution of Penalty System during Han and Tang Dynasties]. By Chan Chun-Keung 陳俊強. Hsinchu: Eculture Company Limited, 2023. Pp.372. NT$570 paperback.
Reviewed by LI Xiang (University of Würzburg)
Neither the ever-changing notion of imperial rulership, nor the supposed advancement in material production and social economy, can alone define the transformation from “ancient China” to “medieval China.” Chan Chun-Keung’s book offers an insightful reconceptualization of this great turn from the perspective of how penal laws evolved over time. In his original and detailed study, Chan identifies two factors that drove the transformation of Chinese penal laws from gudian xingfa 古典刑罰 (lit., classical punishment) to a long-lasting, multi-layered system of chuantong xingfa 傳統刑罰 (lit., traditional punishment): the decline of rouxing 肉刑 (corporal punishment), and the rise of liuxing 流刑 (banishment) as an integral part of judicial penalties. In particular, Chan views the second factor as having considerably contributed to the making of a judicial culture that was punitive by nature, not by the personal intention of lawmakers. The establishment of the fixed label liuxing, and the stable connection between this label and specific illicit behaviors, gave rise to the forming of a new type of jurisprudence where the extent of a party’s reprehensibility (or, “punishworthiness”) was directly—and accurately—connected to the degree of sanction imposed on it. The appropriate gravity of punishment gradually became an inherent objective of law, transcending far beyond moral/value pursuits.
Within its nine chapters, the book covers three major themes. Chapters One and Two focus on the era before liuxing was justified as an independent, normative form of punishment. Chapter One revisits the history of Han and Wei China when the abolition of rouxing, or corporal punishment, gradually became a trend. A vacant area appeared in the punishment system, making it necessary to seek for a substitute to fill the gap. Chapter Two examines the early traces of exile from pre-Han to the Southern dynasty, during which the sentence of banishment was a “substitute punishment” (daixing 代刑) that sometimes replaced the death penalty to moderate the legal use of violence. Chan argues that, compared with the Han emperors, rulers of the Wei-Jin period placed more emphasis on the aspect of liu 流 (lit., to flow like water), which forced the criminals to move to remote areas (p.58). This was distinct from the earlier punishment of xibian 徙邊 (forced removal to border regions) in the Qin and Han dynasties, which served to develop the economy of border areas or to expand the frontier army.
Chapter Three investigates the birth of liuxing in the Northern dynasties. According to Chan, it was under the reign of Emperor Xiaowen of Northern Wei that liuxing was eventually codified as a “formal punishment” (zhengxing 正刑), with its independent status, in contrast to an alternative sanction for those who deserved some sentence other than death. This was a watershed moment in the history of imperial Chinese law. Liuxing was no longer simply an intermediary between capital punishment and other forms of sentences but was legitimized as a professional execution with its clearly defined evidentiary criteria, procedural instructions, and predetermined functions. A justice model founded upon appropriate penalties was therefore renewed. Lawmakers now explicitly quested a new form of punishment that could help balance community safety with deterrence efforts, protecting the penal system from two extremes: excessive severity and unreasonable mildness (p.145).
Chapters Four to Nine examine the development of liuxing in the Sui and Tang dynasties. Chan focuses especially on the real implementation of related laws and provides discussions on the actual steps of turning judicial doctrines into reality: the methods of adjudication, the escort of criminals, the final destination and duration of exile, the possibility of imperial amnesty, the addition of supplemental punishments, and so forth. Liuxing in the Tang period included two core aspects, that is, yuanzhu 遠逐 (expelling the criminal to distant areas) which had become formalized since the Norther Zhou era, and laoyi 勞役 (corvée labor), the importance of which gradually reduced under Sui and Tang (p.194). According to Chan, the many variants of liuxing indicated that the penalty was still oscillating between a normalized, legal punishment and a public gesture of tolerance, sometimes used arbitrarily by the throne. The real cases of Tang exile officials also help to support the view that liuxing still served to commute other penalties as a substitute, at least to a certain extent.
One of the most valuable features of this book resides in its scrutiny of the exile system in premodern China from the perspective of a legal historian. Surveys of the situations of exile in pre-Tang China are insufficient, partly due to a trend in traditional scholarship that has largely romanticized this punishment. As a large number of relevant accounts were provided by banished officials who heroized or sighed over their experience of expulsion, exile has usually been treated as a personal tragedy, which masks its nature as a formal-rational practice initiated by imperial authorities. This has also led to another tendency in research. More attention has been paid to the executive side of exile rather than its judicial side. Chan’s book offers a timely intervention to these trends. By clarifying how liuxing left a lasting mark on the Chinese legal system, the author transcends the old approach of equating legal codes in premodern China to the extension of ethical norms/customary law, positioning punishments within the scope of positive law. This makes it possible to move beyond the dichotomous narratives that interpret fa 法 in premodern China as subject to li 禮, endowing fa with an independent status in a society that was under substantial transformations from antiquity to medievalism.
This point builds on another contribution of the book. The author is clearly aware that liuxing, initially used as a tool to bridge the gap between “too extreme” forms of penalties, was not merely a specific type of sentencing. Its development indicated the growth of a new legal culture that questioned the effectiveness of one-size-fits-all approaches to punishment and acknowledged the uniqueness and ambiguity of real legal cases. Chan correctly reveals this multifarious nature of an institutional structure that seemed to have become increasingly unified in medieval China. His selection of real examples of pre-Tang and Tang exile helps demonstrate the issue of classificatory vagueness in legal practice. This greatly supplements his discussion of the discrete terms of Chinese legal language in extant statutes and ordinances, and thus illustrates the complicated relationship between legal conventions and pragmatic purposes: realistic needs could override established law when necessary.
Some arguments of the book could be more persuasive if certain questions were treated more carefully. One is the seemingly cause-and-effect relationship between the decline of corporal punishment and the rise of exile as a formal penalty. Chan attributes the codification of liuxing largely to the abolition of rouxing, potentially leaving readers with the impression that the two forms of punishment appeared sequentially in the developmental history of the Chinese legal system. Although it looks like they were welcomed by Chinese lawmakers in different periods of time, in many situations the two actually coexisted, and the flourishing of exile was not necessarily the result of the decline of corporal punishment. Sometimes rouxing was even used to supplement liuxing. One illustrative example is tattooing, which remained in use in the Tang era and afterwards as a means for marking some criminals sent into exile. Considering such cases, Chan’s book should elaborate more on the complex relationship between rouxing and liuxing, at least with regard to the Tang dynasty. The title of the book, “From Corporal Punishment to Banishment,” should also be reconsidered as it implies that the two forms of penalty came into use successively.
There is another aspect of the book where the author could go even further, which is related to the dynamics of legal expressions. Although liuxing took on more recognizable forms from the Northern dynasties, we cannot fully understand the concept unless both characters, liu 流 and xing 刑, are appropriately defined. Chan makes great efforts to redefine liu as a legal term. He differentiates liuxing from its variants that had the features of liu by highlighting the dry and technical elements in the implementation of liuxing. This approach, together with his discussion of the socio-civilizational implications of liu, reveals a general situation in medieval China where law was increasingly understood in a narrower sense, being expressed as a system with limited and specialized purposes rather than a broad cultural enablement. For the character xing, it seems that Chan treats it largely as an established, “frozen” expression with its denotations and connotations already stabilized in pre-Tang periods. This is likely because Chan is addressing to the Chinese public familiar with the character. For readers from other parts of the world, questions might be raised with regard to whether xing is equivalent to the modern English term “punishment.” Potential inquiries like this, however, would not diminish the overall quality of the entire book.
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