| The purpose of this paper is to argue that the adjudication of Qing magistrates is administrative rather than judicial in nature on the basis of well-preserved archives of south county of Sichuan Province in the Qing Dynasty, to reveal the possible theoretical misunderstandings resulted from west-centralist tendency prevailing in the research on lawsuits in Qing counties and even on Chinese traditional legal history, and to give new interpretations on related theoretical controversies by seeking to dismiss preconceived theoretical assumptions and ponder on historical facts in real historical situations. To take the county-level adjudication in Qing Dynasty as justice and isolate it from county governance affairs stems from the preconceived assumption of separation of powers and is considerably inconsistent with the real situation in the Qing Dynasty. In traditional Chinese societies including Qing Dynasty, there had neither the structure of state power in the modern western sense nor the modern legal system. A county magistrate appears to be a “shepherd” of the people in the county, and adjudication is merely an aspect of his powers or duties. A County Yamen is not equivalent to the court in the modern sense, while a county magistrate is not equivalent to a judge either. These are not only formal differences in titles or terminologies, but could be substantial in the personal background, knowledge background and value preference. And the non-law-ruled nature of traditional societies means that what is needed by the societies is to complain the wrongs rather than to defense the rights. Therefore, a county magistrate, for the purpose of settling disputes, would regard the disputes settlement between the involved parties as work of the governance of the county. In this process, a county magistrate would make a flexible use of procedures and rules instead of sticking to them strictly, and the settlements of the disputes are the comprehensive application of commonsense, conscience and legal rules. Sichuan’s situation may not represent that of the whole country, and the adjudication in particular time or places would be more varied, and even existing some ad hoc cases. Nevertheless, it is certain that a magistrate’s adjudication is rather part of the governance of the “plenipotentiary shepherd” than justice in nature under the doctrine of separation of powers. |
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