Chapter 138: Overriding Statute through Precedent
After explaining the matter, Zhang Fei went home with Xu Zhiqian, leaving the celebration banquet to the pen-in-caps while he covered the bill.
For Zhang Fei, it wasn’t yet time to celebrate.
The first thing he did upon returning home was to consult with Xu Zun.
“Overriding statute through precedent?”
Xu Zun was slightly startled.
Zhang Fei had mentioned wanting to establish laws through this case, and Xu had been curious how a pen-in-cap could accomplish that.
But he never imagined Zhang Fei intended to override statute through precedent.
“Yes,” Zhang Fei nodded, asking, “What do you think?”
Stroking his beard, Xu Zun pondered before replying: “Developing laws through precedents has existed since ancient times, like the Qin Dynasty’s ‘Court Proceedings’ and Han Dynasty’s ‘Case Comparisons.’ While convenient, it can be a source of chaos.
In the late Han Dynasty, corrupt officials manipulated precedents to adjudicate cases, twisting the law for personal gain through bribery. They would apply harsh precedents to minor crimes, lenient precedents to serious crimes, ignore valid precedents or forcibly apply non-existent ones. This led to the collapse of the legal system. Precedents were temporarily abolished in the Tang Dynasty. Though our dynasty has them, we use them cautiously, generally preferring imperial edicts.” His meaning was clear – he didn’t approve of overriding statute through precedent.
The Han Dynasty’s case comparison system had a major problem – too many precedents led to different rulings for similar cases.
This gave corrupt officials many opportunities.
With enough money, they would apply lenient precedents.
Without payment, they would be harsh.
Many cases were similar, leaving common people confused.
Though the Song Dynasty had laws and precedents, precedents were rarely used, with imperial edicts being more common.
These edicts referred to the emperor’s rulings on cases, which were then organized by the Court of Judicial Review and Ministry of Punishments into edicts distributed across the empire.
Compared to precedents, these edicts were more limited since they required the emperor’s personal ruling, resulting in only a few per year.
Zhang Fei nodded, “Those are valid points. However, everything has pros and cons, including laws. I believe that given our dynasty’s current situation, the benefits of overriding statute through precedents far outweigh the drawbacks!”
Xu Zun asked, “How so?”
Zhang Fei explained, “The greatest advantage of overriding statute through precedents is that it keeps laws dynamic and current. Have you considered why unauthorized printing became an issue in our dynasty but not in the Tang or Han?”
Xu Zhiqian said, “Perhaps it’s because printing technology has greatly advanced in our dynasty.”
“Be more confident – remove the ‘perhaps.'”
Zhang Fei continued, “With technological advancement, improved transportation, and active commerce, many new issues will arise. The imperial court cannot quickly establish enough laws to address these new problems. At such times, overriding statute through precedent would benefit national governance and development.”
Xu Zun asked, “Your reasoning makes sense, but how would you prevent abuse?”
Zhang Fei replied, “I’ve studied the Han Dynasty’s case comparisons. There were two main issues: First, the Han Dynasty’s imperial authority had deteriorated – under such conditions, the legal system would have collapsed regardless of precedent use.
Second, there were eventually too many precedents. We can learn from this by being careful in establishing precedents. For example, any new precedent would need approval from the Court of Judicial Review, Ministry of Punishments, Court of Penal Review, and even His Majesty before being published. We could also conduct revisions every few years.”
Xu Zun frowned, “Even so, this might not completely prevent abuse.”
Zhang Fei asked, “What if we combine it with Academician Sima’s judicial reforms?”
Xu Zhiqian’s eyes widened, “You didn’t plan this from the start, did you?”
The main judicial reform proposals came from Zhang Fei – had he planned this all along? Xu Zun also looked at him suspiciously.
Zhang Fei didn’t deny it, “I had considered this, and when this case arose, I thought why not seize the opportunity.”
He paused briefly, then continued: “Moreover, it’s not just judicial reform. Academician Wang’s reforms are imminent and will likely create many new issues. Overriding statute through precedent would give our dynasty’s legal system the flexibility to handle problems arising from the new policies.”
Xu Zun frowned.
Indeed!
With Wang Anshi’s reforms approaching, an outdated judicial system could cause many problems.
Like this unauthorized printing case – there was no applicable law.
They had to force it under “bewitching the masses.”
Though overriding statute through precedent had some drawbacks, combined with judicial reform, most problems could potentially be avoided.
After careful consideration, Xu Zun nodded, “I’ll raise this issue and see their reaction.”
Actually, Zhang Fei’s proposal wasn’t impulsive. He had studied Song Dynasty law and knew that overriding statute through precedent emerged during the Xining era, not proactively but reactively, simply due to Wang Anshi’s reforms.
Wang Anshi’s comprehensive reforms created many legal issues.
Regular legislation had significant delays, while Wang Anshi’s reforms were urgent, fast, and aggressive.
Eventually, they had no choice but to overriding statute through precedent.
But since it was forced, too many precedents were eventually created, significantly impacting the judicial system.
Clearly, overriding statute through precedent was inevitable.
Since it was inevitable, it was better to do it proactively.
This would allow for better regulation.
Of course, this greatly benefited pen-in-caps, as Zhang Fei could then use precedents in court.
However, they first needed to create problems – no one would pay attention if they simply demanded to override statute through precedent without cause!
As Zhang Fei said, “Change” was the most difficult thing in the world.
Change inevitably hurt many vested interests.
The next day, in the afternoon.
At the Kaifeng Prefectural Office.
“Prefect, Judge Huang from the District Court just submitted a complaint document.”
Huang Gui reported.
Lu Gongzhu, still drowsy from his afternoon nap, immediately became alert and asked with surprise, “What major case is this? Why would Judge Huang’s complaint come to me?”
That was the lowest-level court, while his was the highest – this was skipping levels!
Without a major case, this shouldn’t happen!
Huang Gui explained, “This complaint was submitted to the District Court this morning by Qiu Zhengwen, a pen-in-cap from the Bianjing Law Firm.”
Upon hearing “law firm,” Lu Gongzhu developed a headache – they were too recognizable. He clicked his tongue, “They finally learned to go to the District Court properly, so why is it coming to me now? Do they think I, Lu Gongzhu, am Zhang San’s personal prefect? This is ridiculous.”
He had wanted to avoid them last time but couldn’t. Now when they finally seemed to understand and stopped bothering him, it still ended up on his desk.
How could he not be angry?
Huang Gui awkwardly said, “Please calm down, Prefect. Because this complaint is related to yesterday’s case, they dare not make a ruling and must defer to your judgment.”
Lu Gongzhu frowned, “Where’s the complaint?”
Huang Gui quickly handed it over.
After reading it, Lu Gongzhu slammed it on the table, “I knew it wouldn’t be so simple.”
Huang Gui said, “Prefect, this case involves unusual charges, so the District Court must be cautious. But since it is identical to Su Shi’s case, if the District Court rules differently, it might undermine the Prefectural Office’s authority. However, if they follow your ruling, all Bianjing booksellers might be sued, as most major booksellers have unauthorized prints of Minister Yan’s poetry collection.”
Lu Gongzhu sighed, “Not only that, yesterday’s ruling in Su Shi’s case was a special decision, but if similar cases multiply and all follow my ruling, it clearly doesn’t match the punishment for bewitching the masses. Wouldn’t this become overriding statute through precedent?”
The lightest punishment for bewitching the masses was sixty beatings.
But yesterday’s ruling, while using this charge, suspended the beating and ordered the defendant to compensate the plaintiff.
This punishment didn’t exist under this charge.
The prefect certainly had authority to make special rulings based on circumstances.
If it were just one case, that would be fine.
But if everyone cited this special ruling for similar judgments, that would clearly show the precedent taking priority over the written law.
That would become overriding statute through precedent.
Huang Gui looked worried, “But if we do not override statute through precedent, we might face more troubles. First, all those booksellers would face beatings. Also, these two cases are identical – since you’ve already ruled, if the District Court rules differently, it might invite criticism.”
“That little pest!”
Lu Gongzhu gritted his teeth in frustration, then frowned, “But why is he doing this? Is he deliberately trying to make things difficult for me?”
Huang Gui said, “I just heard that Su Shi’s contract with Zhang San stipulates that compensation from this case goes to Zhang San as payment.”
Lu Gongzhu asked, “So he wants to get into the book printing business?”
Huang Gui nodded, “That’s possible.”
Lu Gongzhu raged, “So he’s trying to use me to get those bookshops for free.”
“…!”
Huang Gui had never encountered such a situation and didn’t know what to say.
Lu Gongzhu suddenly felt this matter exceeded his authority and he couldn’t decide alone, “I’ll discuss this with Sima Guang and the others first.”
That day, he went to the Court of Penal Review to consult with Sima Guang about how to rule on this case.
Sima Guang had anticipated yesterday that this case wasn’t simple and had been pondering it. Upon hearing about it, he knew Zhang Fei was up to something again.
He didn’t believe Zhang Fei only wanted a few bookshops.
Sima Guang said he hadn’t encountered such a case before and needed to study it, telling Lu Gongzhu to hold off while they arranged a meeting to discuss it.
After Lu Gongzhu left, Sima Guang immediately summoned Xu Zun.
After pretending to think it over, Xu Zun said, “In my humble opinion, this case requires overriding statute through precedent.”
Overriding statute through precedent? So that’s what that young man wanted – to override statute through precedent to influence imperial legislation.
Sima Guang, being shrewd, immediately understood but maintained his composure, asking, “You know ancient and modern law well, surely you’re aware of the problems with overriding statute through precedent.”
Xu Zun immediately relayed Zhang Fei’s arguments from yesterday.
After listening, Sima Guang frowned deeply. Indeed! Wang Anshi intended to implement reforms, which meant changing the law. No matter how much judicial reform he implemented, it would be difficult to use written laws to restrict him! Only overriding statute through precedent could counter this.