For the present purposes, I would suggest the following criteria to distinguish a field of knowledge and professional practice:24
24 There is a large body of literature on the sociology and history of professionalism, which for a long time has been oriented on the 19th and early 20th century ideal of the traditional or “status” professions (e. g. law and medicine) of England and the United States (see Abbott 1988, 3-4; Abbott 2001, 12166). Typical is Talcott Parsons’ statement that “the development and increasing strategic importance of the professions probably constitute the most important change that has occurred in the occupational system of modern societies” (Parsons 1968, 536). Parsons’ emphasis on the modern Western, particularly American, university system (Parsons 1968, 539-545; six of the ten pages of Parsons’ influential 1968 encyclopaedia article deal with the interrelationship of professions and the universities) is also characteristic for this approach.
Since the first systematic analysis of ‘the professions’ was published in 1933 by Alexander Carr-Saunders and Paul Wilson (The Professions. Oxford: Oxford University Press 1933. Quoted in Abbott 1988, 4 and Abbott 2001, 12166), sociologists have attempted to define traits that would allow to distinguish
professions from non-professional occupations. Widely quoted is Millerson’s comprehensive survey which lists as the six most frequently mentioned characteristics: possession of a skill based on theoretical knowledge; provision of training and education; testing of competence of members; organisation;
adherence to a code of conduct; and altruistic service (Geoffrey Millerson: The Qualifying Associations. A Study in Professionalization. London: Routledge & Paul; New York: Humanities Press 1964. Quoted in Waddington 1996, 677; see also Abbott 1988, 4).
This “traits-approach”, common until the 1960s, has been widely criticised within sociology for leading to static results and “strangl[ing] inquiry” (Abbott 2001, 12166). Since the late 1960s, it has been replaced with more sceptical interpretations, first the “power-approach”. While the earlier Parsons conceptualised professions as rationalist, universalist, and exercising functionally specific authority (Parsons 1954;
compare Abbott 2001, 12167), power theorists viewed professionalisation as a process of asserting power and control in society. In this latter perspective, the professions’ claims of specialised knowledge, altruistic behaviour and adherence to ethical standards are seen as rhetoric employed to obtain special privileges from the state (see Waddington 1996, 677). Even more recent approaches view professionalism as
a) The presence of a community of specialists, recognisable by some kind of specialised training and experience, who
b) share a body of knowledge which
c) is transmitted through a corpus of expert literature and about which they d) communicate in technical language.
A traditional account of the evolution of legal specialists, legal knowledge and legal literature is characterised neither by specific traits nor specific social structures, but by an inherent and ongoing competition with other professions and occupational groups over jurisdiction of work, so that “a profession [is] anything that compete[s] like one”(Abbott 2001, 12167f.; the main reference for this approach is Abbott 1988).
All these approaches are geared towards the historically particular phenomenon of the modern
Anglo-American (and to a lesser extent, Western Continental European) professions and thus are of limited value for the study of early China. It is, for example, extremely unlikely that the ‘professional’ jurists I am concerned with were organised in anything like a professional organisation; importantly, they are also distinct from the typical professionals of traditional sociological literature in that they worked for the state in a bureaucratic setting, rather than in free practice.
The particularity of these approaches, however, has also been recognised by sociologists who see a need to broaden their historical and geographic perspective and to take into account more recent developments.
These sociologists, for example, find that the Anglo-American model of largely self-regulating professions which have carved out independence from the state ill fits the French and German situation where
traditionally a high number of professionals have worked in state settings and even have enjoyed more prestige than their peers in independent practice (Abbott 2001, 12167f.; Siegrist 2001, 12156). On the other hand, recent tendencies for professionals to increasingly work in or for large-scale organisations such as globalised private service firms, as well as within state agencies, has led to a new appraisal in which
“bureaucracy”/“organisation” and “professionalism” are not any longer thought of as inherently antagonistic (Hinings 2001). As a result, sociologists of professions have noted: “If the pattern of associational professionalism that gave rise to the field itself is either dead or transformed, then the field must retheorise its objects of scrutiny. Abbott’s test – a profession is an occupation that competes by retheorising others’ work – presupposes fixed and organised occupations of a kind that simply may not exist under modern conditions of employment.” (Abbott 2001, 12168). Within Western sociology, the question of professionalism thus is being redefined in broader and more inclusive terms as the question of “how expertise is organised in a society” (Abbott 2001, 12168). It is in this latter sense - role and organisation of institutionalised expert knowledge within a society – in which I would like to adopt the terms
“professional” and “professionalism” for China. My own criteria for a professional field then are to be understood neither as an attempt to equate early Chinese legal experts with the historically specific European and North American phenomenon of the ‘professions’, nor as an (methodologically outdated) attempt to define universal criteria applicable to all forms of professionalism in every kind of social and historical settings. Rather, the criteria given are intended as a heuristic device for the purpose of evaluating whether legal modes of thought and action were historically significant in early China, and if yes, what significance they possessed vis-à-vis other modes of social practice.
provided by Cheng Shude in the introduction to the “Lüjia kao” 律家考 chapter of his Hanlü kao 漢律考:25 Legal studies (lüxue 律學) thrived for the first time in the Warring States period with the Fajing 法經, attributed to the Wei chancellor Li Kui 李悝,26 and the legalist treatises of Shang Yang 商鞅, Shen Buhai 申不害, Shen Dao 慎到, Hanfei 韓非, and others, all mentioned in the bibliographical treatise (“Yiwen zhi” 藝文志) of the Hanshu.27 The burning of the books of the
‘hundred schools’ during the Qin is significant because from then on law became the prerogative of officials. According to Cui Zusi 崔祖思 of the Southern Qi (479-501), since the Han there existed legal experts who for generation after generation passed on their profession to their descendants and who assembled up to several hundred students whom they taught law.28 In regard to legal literature, the Jinshu states that in the Han, the laws’ complexity and lack of consistency led to controversies and in the consequence to a rich legal literature, including a body of zhangju 章句-commentaries which was increasingly voluminous and increasingly difficult to master; the Confucian scholars Shusun Xuan 叔孫宣, Guo Lingqing 郭令卿, Ma Rong 馬融 and Zheng Xuan 鄭玄 contributed substantially to the staggering amount of the more than 7,732,200 words to which the zhangju-commentaries grew.29 The importance of legal studies in Han is underlined by the fact that when Wen Weng 文翁, as Governor (shou 守) of Shu 蜀, in order to advance this backward border commandery selected about ten talented junior officials for training in the capital, he explicitly instructed some of them to study law.30 At the end of the Eastern Han, with
25 Cheng Shude 1963, 178-179. The Hanlü kao is part of Cheng Shude 1963, the full Lüjia kao chapter is Cheng Shude 1963, 178-191.
26 For Li Kui and the Fajing, see Jinshu 30, 922.
27 See Hanshu 30, 1735.
28 See Nanqishu 28, 519.
29 See Jinshu 30, 923.
30 See Hanshu 89, 3625. Wen Weng is also important for establishing public schools, setting the precedent for a policy that soon was implemented on an empire-wide scale (Hanshu 89, 3626). On Wen Weng, compare Loewe 2000, 582f. (it is unclear why Loewe writes that Wen Weng became Governor of Shu
“probably towards the end of Wendi’s reign” when both Hanshu 89, 3625 and Hanshu 28B, 1645 clearly write that that he was appointed to this post towards the end of the Jingdi emperor’s reign, i. e. around 142 BC).
the instability ensuing after the Dong Zhuo 董桌 rebellion and the fall of the dynasty, legal studies fell into decline. In this situation, Wei Ji 衛覬 in Wei 魏 requested in a memorial to establish the post of Academician for the Statutes (lü boshi 律博士) in order to institutionalise legal teaching, arguing that even village heads (baili zhangli 百里長吏) should understand the law.31 This office persisted throughout the following dynasties and was only abolished in the Yuan period.
Cheng Shude relies in this sketch entirely on received sources, some of which are much later than Qin and Han and difficult to substantiate. In the following, I will supplement Cheng Shude’s overview with an analysis of available information on legal specialists and their technical knowledge, literature and language, drawing both on the biographical detail of the traditional histories and on the rich mine of the newly excavated sources which allow for substantial new insights. For example, while Cheng Shude had to rely on the legalist philosophical literature for the history of pre-Qin legal studies, it is now obvious that legal specialists and technical legal literature existed well before the Han – the legalist literature certainly indicates that even before the Qin unification, an eminent concern existed in early China regarding questions connected with law and its role in government, but it does not display the level of sophisticated practical knowledge that is evident in the palaeographic material.