I do a lot of reading; it’s part of my job description as a graduate student. I read all types of works: newspaper articles, opinion pieces, scientific data, political diatribe, etc. I also read quite a bit of Chinese literature and modern scholarship on such works. Recently, it occurred to me that I have lost, to some degree at least, my love of reading for pleasure, especially reading works of fiction. I tend to get lost in critical works, the argumentative polemics and rhetorical strategies of academic work published in scholarly periodicals, but I realized that I rarely, if ever, spend significant time reading fiction anymore. This is disconcerting, disturbing even, because not all reading is the same; different genres can produce wildly different effects.
For example, exploring the universes of the future plotted out by science fiction writers or contemplating the power of language in historical settings recreated by dramatists shows the infinite possible worlds existing when authors indulge in fictive landscapes. Fictional works simultaneously reflect a multiplicity of voices and viewpoints in a way that other artistic mediums seem hard-pressed to duplicate. The way authors choose to arrange their plots, create characters, and manipulate attitudes and behaviors can change readers’ perceptions of themselves, and the decisions made in the wake of these changes affect the outcome of their lives. This, to me, is the enduring influence of fiction and the use of it as expression and as a representation of reality. However, despite fiction’s importance, I seem to have fallen out of love with reading it some years ago. It might be due to a lack of time, or perhaps, my interest in it is waning. In any case, my Fulbright Fellowship has allowed me to rekindle my relationship with fiction as a force of world creation, as a driving aesthetic in my understanding of the consequences of writing, and as the main artistic medium that got me excited about scholarship in the first place.
Since coming to Taiwan on the Fulbright grant, I have been researching classical Chinese law, which, at first glance, does not seem related to fiction in any significant way. As I read more into the creation of law and the legal system that once adjudicated legal disputes throughout China’s history, I’ve come to understand that law is perhaps the ultimate human abstraction; which is to say, law is the ideal representation of how we perceive ourselves as a civilized species. It is a manufactured apparatus that we use to control ourselves and to establish and romanticize a theoretical model for how we should behave. Viewed in this way, law is an enduring fictional force in our world. I don’t mean that laws are make-believe or false; rather, I am thinking here about Peter Brooks’ insight that “laws are all about competing stories.” In other words, laws usually come about from different versions of a past event. Laws remain relevant when later readers—often lawyers, statesmen, soldiers, or historians—tell stories mythologizing law and the role of legal precedent in shaping history. The persuasive stories win out and make their way into the legal codes that form a peoples’ vision of themselves.
In the United States, for example, citizens often take comfort knowing that legal cases define much of what it means to be American. John Adams’ defense of the perpetrators of the Boston Massacre, though controversial, reflects the early nation’s ideological devotion to due process. Other landmark adjudications, such as the more recent Roe v. Wade ruling, indicate that ferocious litigation pervades modern American courts and culture. What emerges from this history of legal precedent, then, is a shared cultural narrative focusing on imagined exchanges in the courtroom. These exchanges are powerfully perceived moments of change, and they mitigate concepts or events that perhaps fit uneasily in the history of our nation. These exchanges, in turn, effect historical change and our perceptions of who we are as a legal citizenry. Their role in our lives is important, but their continued use is increasingly fictionalized in the mythos of the modern nation.
Classical China, too, obsessed over its legal legacy, and part of the driving force behind this legacy was the bureaucratic and legal apparatus that came to define the empire’s vision of itself. The imperial historians, masters of fiction in their own right, built a powerfully imagined universe that relied on the potency of legality as a source of imperial virtue and sophistication—a system based on epistemological certitude. They read widely the stories emerging from legal cases of the past. They were excellent students, paying particular attention to how cases functioned rhetorically to support a given political system or ideology. In the days of the burgeoning empire, c.a. 200 BCE, Han society had already established a multi-layered legal apparatus as a cultural institution, and the early historians molded the significance of this institution’s writings into an elaborately fictive vision: the Han Empire.
This process did not occur quickly; it slowly emerged from the stories populating legal cases in the archives of various offices in the run up to the empire’s creation and afterward. Therefore, ancient China also looked to legal precedent to define itself and its future. Fortunately, recent decades have witnessed the discovery of several ancient legal case files. In the following, I present an abridged translation of a case from the collection of files excavated at Zhangjiashan 張家山 (Jiangling 江陵 in modern day Hubei province). I have titled it “Fornication at a Funeral.” This text shows how authors composed legal cases to build part of the empire’s identity.
In the present case, a woman from Du County named “A,” whose husband “D” was a gongshi and died suddenly of an illness. D was placed in a coffin, which was placed in the hall. D had yet to be buried. A and D’s mother Su were mourning D’s passing at night, and circling his coffin as they cried out. That night A went with another man, “C,” into the room behind D’s coffin and they engaged in consensual sex. The next morning, Su brought this complaint to an official and he arrested A, but was doubtful about A’s crime. So he called in Superintendent of Trials Xiao, Trial Judge Shi, Inspector Hong, Court Scribe Wu, and thirty other men to discuss legal precedent and the statutes used to prosecute A.
A woman is to respect her husband. Her place comes after his parents. A’s husband died, yet she was not sorrowful; nor did she wail. Rather, she had sex with a man right next to her husband’s coffin. She should be charged according to the statutes on unfilial conduct and “crimes committed through arrogance or anger.” She was sentenced to be shaved and to perform hard labor without mutilation.
Court Scribe Shen was out during the initial judgment. When he got back, he disputed the logic of the judges and asked,
“Suppose there is a dead father and his son does not pay sacrifice in his home for three days, how should he be judged?”
The Judges responded: “He should not be punished”
“Again I ask, whose crime is worse, she who cheats on a dead husband, or she who cheats on a living husband?”
The Judges responded: “Cheating on a dead husband is not a crime.”
“But ‘A’ was shaven and made a grain-pounder. Is this not too heavy a sentence?”
The Judges responded: “In truth, it was a faulty decision.”
This case reveals a great deal about life during the period leading up to the Han Empire. It demonstrates how legal authorities might have interfered with domestic affairs and the level of bureaucratic complexity involved in solving such cases. One of the most important features of this text is its fictiveness. I am not suggesting that the events of the case are fabricated; evidence indicates that they did happen. I understand the word “fictive” from its root fingere, which is the forming, shaping, and molding of narrative elements. “A” was a real person, and the midnight tryst that she had with her lover in the room adjacent to where her unburied late-husband’s newly dead flesh lay rotting presented a unique problem. As this text currently stands, it is a representation of the case written well after it occurred. The author has taken this case and manufactured a plot to highlight certain narrative components and direct his readers to certain conclusions.
The author uses the story’s main protagonist, Shen, to confront the moral position taken by the judges. Shen concerns himself only with legal precedent when arguing to commute A’s sentence. The judges, by contrast, are upset with A on moral grounds—the fact that she “was not sorrowful” upsets them. But Shen’s litigation is victorious, and his rhetorical flourish is heroic and spectacular. More striking still is his direct contradiction of his superior officers. The case ends when Shen deflates the judges’ conclusion, and they concede wrongdoing. Here, the author presents the legal culture of the early empire as if it consisted of an open forum of debate in which perspicacious orators reigned supreme. The author showcases Shen as a man of keen intellect by emphasizing his skill with logic and his courage to confront bureaucratic pressures. Shen represents an intellectual model armed with both legal training and rhetorical savvy, as opposed to other protagonists popular in contemporary literature who were merely crafty with words. In this way, Shen is a new form of leader, an ideal that Han intellectuals could use to justify the rise of their new empire in the wake of the hegemonic Qin’s demise.
The author of this text uses fiction as a literary tool to sustain his legal vision, and early legal writings and Chinese histories are replete with such literary examples. For example, historians wielded the world-creating power of fictive representation to depict protagonists who championed Confucian political ideals, or perhaps to promote those who were paragons of religiosity and devotion. The use of early Chinese legal writings in the imperial histories shows that fictive tales were part of an intellectual worldview that informed China’s major historical texts. Furthermore, this suggests that China’s imperial histories derive much of their enduring quality from the literary force of fiction as an engine of world creation. The time that I have spent in Taiwan reading the newly excavated legal texts reinforces the role of fictive composition in how I understand writing and the broad implications of fictive literature in society. These texts assert the primary place of literary fiction as a major practice in China’s early textuality.