Divine Justice

Religion And The Development Of Chinese Legal Culture

Paul R. Katz

• Publisher: Routledge
• Year: 2008
• eBook ISBN: 9781134067862
• Topic: History
• Subtopic: Asian History
• Index: History

This book considers the ways in which religious beliefs and practices have contributed to the formation of Chinese legal culture. It does so by describing two forms of overlap between religion and the law: the ideology of justice and the performance of judicial rituals.

One of the most important conceptual underpinnings of the Chinese ideology of justice is the belief in the inevitability of retribution. Similar values permeate Chinese religious traditions, all of which contend that justice will prevail despite corruption and incompetence among judicial officials in this world and even the underworld, with all wrongdoers eventually suffering some form of punishment. The second form of overlap between religion and the law may be found in the realm of practice, and involves instances when men and women perform judicial rituals like oaths, chicken-beheadings, and underworld indictments in order to enhance the legitimacy of their positions, deal with cases of perceived injustice, and resolve disputes. These rites coexist with other forms of legal practice, including private mediation and the courts, comprising a wide-ranging spectrum of practices

Divine Justice will be of enormous interest to scholars of the Chinese legal system and the development of Chinese culture and society more generally.

1
THE DEVELOPMENT OF THE JUDICIAL UNDERWORLD

A comparative perspective

One of the most important aspects of the history of religious traditions throughout the world has involved the reverberation between images of the neutral underworld and the punitive underworld. This chapter, which is based on the fruits of a joint scholarly effort with Alan Bernstein,¹ traces this interaction in China, the Middle East, and Europe during the ancient and early medieval eras, while also exploring the ways in which it may have been a result of the growth of organized religions (Christianity, Buddhism, and Taoism) and the state.

Let us begin with Bernstein’s tripartite distinction between porous death, neutral death, and moral death. Porous death, which stresses the on-going interrelationships of the living and the dead, seems to have been a relative constant in most religious traditions, and is especially relevant for discussing both ancestor worship and hauntings by the aggrieved dead, which could include the filing of indictments against the living. Neutral death centers on the attempt to prevent such hauntings by segregating the living from the dead, whose souls are confined to a dark land of no return that is under the control of various underworld spirits. The neutral underworld is thus conceived of as being home to all of the dead, regardless of what good or evil deeds they may have committed. In contrast, moral death is based on the belief in postmortem judgment that determines the fate of the deceased soul in the afterlife. As a result, the punitive underworld is both a court where all the souls of the dead are judged and a prison where the guilty are subjected to horrific torments as punishment for their wrongdoings while alive. As Bernstein points out, these visions of death and the afterlife should not be considered as ideal types that developed according to an evolutionary model; instead, they co-existed, competed, and influenced each other (Bernstein 1993).

Such patterns of cogeneration and reverberation are apparent in the religious traditions of the ancient Middle East and Europe. In ancient Mesopotamian religion, for example, the underworld appears to have been mainly a distant land where the dead were banished to in order to segregate them from the living (Dalley 1989). However, the nearly contemporary Egyptian Book of the Dead describes trials by underworld judges and the use of scales to weigh the sins of the deceased (Kohler 1923:18–23; Hornung 1999).² The ancient Greek underworld of Hades could be neutral, with the idea of drinking Lethe water and forgetting one’s previous existence appearing similar to that of drinking a potion provided by the old woman Mengpo

in the Chinese underworld. Greek mythology also depicted Tartarus as an eternal prison far beneath the realm of Hades, but such a punishment was reserved solely for the Titans, not for wicked mortals (in contrast, heroes were allowed to enter the realm of Elysium) (Kohler 1923:44–46, 49). However, by at least the age of Plato (429–347 BCE) some people believed that the souls of sinful men and women would be judged in the underworld, made to suffer the consequences of their misdeeds, and even returned to this world in a form of reincarnation to put into practice the lessons they had learned while dead (Kohler 1923:46–51; Turner 1993:28–33). Representations of the underworld in ancient Greece, which may have been influenced by Egyptian models, also emphasized the importance of retribution to be suffered under the administration of judges of the dead like King Minos (Guthrie 1962:217–220; Nilsson 1925:141; Stilwell 2005). Roman religion continued to stress the inevitability of underworld torments for the wicked. In Vergil (70–19 BCE)’s Aeneid, for example, Anchises explains the fate of souls in the underworld to his son Aeneas, concluding: “And so the souls are drilled in punishments, they must pay for their old offenses” (Aeneid, pp. 206–207, Book 6, lines 853–854). Another characteristic of ancient Roman culture was the use of religion to enhance the authority of laws (referred to as sacred or leges sacrae), and the idea that criminals could be viewed as offerings whose execution would restore divine favor to the community (King 1998; Robinson 2007; Rüpke 1992).³

Ancient Judaism also experienced the interaction of neutral and punitive death. The oldest texts, especially the Book of Psalms, refer to a neutral underworld called Sheol, the abode of the dead, where all souls must journey to regardless of how righteous or wicked they may have been. However, other works in the Hebrew Bible, such as 2 Chronicles and 2 Kings, refer to a punitive underworld known as Ge-Hinnom (later transliterated as “Gehenna” in Greek and Latin), a ravine outside of Jerusalem said to have served as a garbage dump and a site for sacrifices of children to the god Moloch. The souls of evildoers were sent there to suffer torments vividly depicted in Jeremiah 7:33–8:2: “… the dead bodies of this people will be food for the birds of the air, and for the beasts of the earth … They shall be as dung on the surface of the ground.”

Christianity drew profoundly from the Greek, Roman, and Hebrew traditions. Thus, from its inception, its concept of death was moral (see for example Matthew 25:31–46; Mark 9:43). Moreover, visions of the early Christian afterlife featured many punishments based on Roman law, primarily mutilation, devouring by wild animals, stoning, and of course burning. In one example, the Book of Revelation 14:11 (cf. 20:10) refers to a lake of fire and sulfur into which all evildoers will be cast, “and the smoke of their torment goes up forever and ever”. Other contemporary writings, such as the Apocalypse of Peter and the Apocalypse of Paul, further expanded and combined these torments (Kohler 1923:95–108; Trumbower 2001).⁴ Medieval European visions of the underworld continued to be inspired by judicial practices associated with the world of the living, particularly the use of fire as instrument of both underworld torment and judicial torture (or capital punishment) on earth (Bernstein 2006; Le Goff 1984:8, 210–213).

The history of the Christian underworld was also influenced by debates among Rabbinic scholars from the School of Hillel and the School of Shammai, who wrestled with the issue of whether the damned were condemned to suffer forever or whether, after a maximum of 12 months, they would either ascend to paradise or be annihilated. In terms of practice, as early as the time of St. Augustine (354–430) and St. Gregory (ca. 540–604), the belief in an interim period between death and the Resurrection, during which the souls of the dead could be saved from torment, prompted descendants to strive to alleviate the conditions of parents and ancestors by prayer and other pious actions (almsgiving and masses), which were collectively called “suffrages”. By the twelfth century, this facet of the Christian hellscape contributed to the rise of beliefs in a distinct place known as “Purgatory”, where venial (minor/pardonable) sins could be expurgated, but not mortal sins (Bynum and Freedman 2000; Le Goff 1984:5, 220–221).

The data presented above suggest the existence of many similarities between representations of the underworld in China and the West, particularly: (1) concurrent ideas of the underworld as both a neutral place where all souls reside yet also a penal world organized on ethical principles and dedicated to imposing retribution upon wrongdoers; (2) the need for the living to make offerings and/or perform penitential rituals in order to improve the postmortem condition of their parents and ancestors by alleviating their punishments in the underworld; (3) visions or dreams that narrate underworld journeys; and, (4) the tendency to quantify good and evil deeds. These similarities should not, however, obscure important differences. Chinese conceptions of the underworld feature chthonic deities who serve as officials in the afterlife while also functioning like earthly bureaucrats in using legal procedures to judge the deceased (and in some cases the living), as opposed to the Western conceptions that stress the role of fallen angels tormenting the souls of the damned who have already been judged. This is not to deny that Western beliefs in the underworld also had legalistic features, including infernal punishments similar to those in this world and the belief that on the Day of Judgment God (or Christ) would preside over a court. Nonetheless, while both cultures are profoundly concerned with the problem of justice in the afterlife, the Chinese underworld separates the dead into the criminal and the law abiding, while the Western underworld is occupied by the souls of the damned, namely those alienated from God. Another key difference involves eschatology and related temporal concepts. Religions like Judaism and Christianity, which are based on linear conceptions of time, warn of eternal torment for all sinners. This differs from religions featuring cyclical concepts of time (including Taoism and Buddhism; see Bokenkamp 1994; Huang and Zürcher 1995), where postmortem punishments can be harsh but not eternal. Accordingly, when compared to medieval Christianity, the Chinese underworld appears to have emphasized judicial procedure over final judgment. Similarly, in contrast to Christian sources, which appear to be more concerned with an individual’s faith, Chinese texts emphasize the importance of ethical conduct, particularly pertaining to ideals of ritual propriety (li

).⁵

This chapter treats the following four hypotheses:

1. The Chinese conceived of the underworld as a prison prior to Buddhism’s arrival, in large part due to a combination of indigenous religious traditions and judicial practices that arose during the Spring and Autumn (ca. 722–481 BCE) and Warring States (ca. 475–221 BCE) eras, and became systematized during the Qin (221–206 BCE) and Han (206 BCE–220 CE) dynasties.
2. There was a form of reverberation between the imperial legal system and Taoist ritual, with the state providing a model for the underworld bureaucracy and Taoism formulating new legalistic rites for dealing with its officials.
3. 3 By the Eastern Han dynasty (25–220 CE), as the pious increasingly invited Taoist priests to help perform legalistic rituals on behalf of the tormented souls of the deceased, Taoism ended the monopoly over the ancestral cult previously enjoyed by “Confucianism” (i.e., the scriptural and ritual tradition claiming Confucius as its core codifier) (Bokenkamp 2007; Poo 1998:2,...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Figures
• Tables
• Preface
• Notes on citation and transliteration
• Introduction
• 1 The development of the judicial underworld
• 2 The judicial continuum
• 3 Oaths and chicken-beheading rituals
• 4 Indictment rituals
• 5 Trials of the insane and dressing as a criminal
• 6 Judicial rituals in Asian colonial and immigrant history
• 7 Judicial rituals in modern Taiwan
• 8 Case study
• Conclusion
• Bibliography