The behavior of Qing dynasty speech crime law in China: A cross-cultural application of Black's theory of law.

摘要

Black's theory on The Behavior of Law (1976) predicts and explains the behavior of law with five social variables: stratification, morphology, culture, organization, and social control. This research project applied one aspect of Black's theory--the relationship between law and culture--to the study of prosecution of speech crime criminals during the Qianlong rein (1736 to 1796) in the Qing dynasty (1644-1911) of China. The research question posed was whether the speech crime law in Qing China, both on the books and as applied, operated in the direction and manner as predicted by Black in the cases involving the cultured (officials, scholars/gentry) and non-cultured (student/commoners).; In this study the application of Black's theory was done two ways--qualitatively and quantitatively--corresponding to the two research questions asked, that is (1) How were the cultured exposed to different judicial making norms and procedure rules? (2) To what extent were the cultured subjected to different judicial process?; The application of Black's theory was achieved by the analysis of sixty-eight complete speech crime case files of literary inquisition during the emperor Qianlong's rein in the Qing dynasty for evidence of the cultured being treated to more or less law. The application was conducted with the cultural status of the speech crime defendants as an independent variable, seriousness of crime as a control variable, and the Qing judicial process as a dependent variable. The concept of law was operationalized as Confucian ethics, emperor's justice policy, Qing law, and judicial practices. The concept of culture was operationalized as education-official standing, i.e., the cultured being officials, gentry/scholars and the less/non-cultured being students/commoners.; The findings of this research show that the cultured were at once being subjected to more restrictive judicial decision making rules as well as being afforded a more protective judicial process. This set of findings suggested the existence of two governmental social control systems--one for cultured and one for the non-cultured--organized under separate and distinctive social control organization principles with different factual assumptions and value postulates.