The Regularization of the Military Mode of Adjudication

• In Event: Institutions, Law, and Governance: Lessons from Seventeenth- and Eighteenth-Century China

Abstract

Despite the Ming (1368-1644) and early Qing (1644-1912) Dynasties’ highly-developed and procedurally-sophisticated routine procedures for adjudicating criminal cases, men on military campaign accused of both general and military-specific crimes were often subject to a summarized form of adjudication referred to in the sources as junfa (軍法).

Routine criminal procedure derived its authority from the proper performance of criminal adjudication rooted in late imperial Chinese legal culture. It was routine because it was the default response at all levels of government for responding to prohibited behavior in a way that tracked standard bureaucratic channels and was considered consistent with proper governance under ordinary circumstances. By contrast, military adjudication was rooted in late imperial traditions of military campaign command. Under junfa, on an ad hoc basis, the emperor granted officials on campaign varying degrees of autonomy to adjudicate certain criminal cases.

While these two modes existed simultaneously, officials and scholars kept them conceptually and administratively separate until the Yongzheng reign. This paper uses Chinese and Manchu memorials (zouzhe and tiben) as well as military and legal writings to demonstrate the transformation of ad hoc militarized adjudication into a regular criminal process. The regularization of the military mode of adjudication during this period, at first a secret process, suggests the difficulty of perpetually maintaining distinct procedures of adjudication for one group or another within a unified and centralized political entity. It also reveals a highly utilitarian conception of law in traditional Chinese political-legal culture that continues to shape the present.

Author

• Eugene John Gregory, US Military Academy (West Point)