I. Introduction

Since the birth of the law and literature field in the 1970s, scholars working in the West have primarily focused their attention on analysis of legal issues in American and European literary masterpieces. More recently, academics have begun to explore the inter-sections between law and literature in the literary traditions of late imperial and modern China. However, very little scholarly attention, in both English and Chinese, has analyzed premodern literature and law.

It would be a mistake to suggest the reason for such scholarly neglect is lack of "law" in premodern China. It is now widely agreed among Chinese and Western scholars that China had a sophisticated legal system throughout much of its history, its apex marked by the promulgation of the 唐律 Tang lü [Tang Code] in the mid-seventh century, which became the fundamental basis for legal systems in other East Asian kingdoms during that time. For much of imperial Chinese history, although no independent judiciary existed, law was administered effectively from the emperor down through local officials and magistrates, who not only handed legal disputes but also attended to everyday administrative matters in their jurisdiction. One of the most interesting things about traditional Chinese law is that it reflected the Chinese emphasis on Confucian ritual, behavior, and ethics. The legal system adopted by imperial China, which began with the Qin dynasty‘s harsh, Legalist codes in the third century B.C., served the imperial state well until its downfall in 1911.

We would also be equally remiss if we believed that another reason for lack of scholarly inquiry is due to lack of literary material dealing with law in imperial China. Indeed, one of the most unique forms of literary writing that has received scant scholarly attention is the 判文 panwen genre, which can be translated as "written verdicts" or "written judgments," and also interchangeably called 判pan, 判词 panci, or 拟判 nipan. Panwen reached its height in the Tang dynasty (618 – 907), institutionalized in the imperial civil service examinations, one of the entryways into coveted government positions. The structure of panwen is simple: it begins with a statement of a problem rooted in ethics or law, and then argues for a certain position using legal precedent, legal codes, or logical reasoning. Panwen that are extant can be broken up into three categories – 拟判 nipan (constructed judgments), or panwen based usually on fictitious problems and issues that are created and then answered by the author in order to prepare for panwen questions on the civil service examinations; 案判 anpan (case judgments), or real verdicts to real cases decided by government officials; and 杂判 zapan (miscellaneous judgments), or written judgments on problems or issues one faced in everyday life. Approximately 1200 different panwen appear in the 全唐文 Quan Tangwen (The Complete Prose of the Tang Dynasty), one of the central sources for Tang dynasty writings today. The large number of extant panwen suggest the importance and permeation of law (or at least, legal modes of thinking and writing) in the Tang. More important, analysis of panwen can perhaps reveal important connections between law and literature in the Chinese tradition, as well as how writers in the Tang thought, conceived of, and applied the law. Despite the immense scholarly potential in panwen, like the field of Chinese law and literature in general, it has received very little scholarly attention over the past two to three decades, with almost no work done in English. Some of the very best English-language his-tories of Chinese literature do not even discuss panwen as a genre. Prominent English-translation anthologies of Chinese literature also do not include renderings of panwen. No full-length books in Chinese or English exist that exclusively discuss panwen, and since 1980 to March 2009, only about ten articles have been published (all in Chinese) in China that deal with panwen. Clearly, there is a scholarly deficit on panwen. This paper hopes to make a very modest contribution to the field and explores the panwen genre specifically through the work of 白居易 Bai Juyi (772-846), one of the Tang dynasty‘s most beloved and famous poets. His panwen, known as the 百道判 baidaopan (the one hundred panwen questions), are part of the nipan category, created and written by himself to prepare for panwen civil service examinations. As such, they can be regarded as true works of literary creation, but unfortunately have received scant scholarly attention. The 四库全书总目提要 siku quanshu zongmu tiyao (The Essentials of the Table of Contents of the Siku Quanshu) said that ―Bai Juyi's panwen are the mainstream [and representative of the panwen genre. In other words, Bai's panwen were considered as models and representative of the panwen genre as a whole, and so have been chosen for study. Because his panwen are too numerous to explore satisfactorily in the scope of this paper, I will focus specif-ically on his panwen that deal with women and gender issues so as to allow more concentrated analysis of the legal issues at stake in the specific panwen. In terms of our literary analysis, focusing on women issues is also helpful since the theme of gender and women has been one of the most imaginative and popular among male Chi-nese literati throughout Chinese history.

This paper proceeds as follows. Because of the lack of scholar-ship on premodern Chinese law and literature, Section I will discuss some theoretical issues on the relationship between law and literature in the Chinese tradition, and explicate some differences between the role and function of literature in premodern China and the West. Section II will then provide a brief overview of the panwen genre, its history and its literary features, with specific attention to Bai Juyi's baidaopan. Section III will then present my translations of selected panwen by Bai Juyi and put forth my analysis. Through these sections, I hope to argue first and foremost that the relationship between literature and law in these panwen was very important and that they supported each other. Their boundaries often overlapped in numerous ways: literature could become a source of law, through the act of writing literature could try to elucidate certain principles and take on a "legal" character, and literary writing through the panwen could give rhetorical force to law. Furthermore, as seen through Bai's panwen – what we might think of today as rational and legal thinking influenced the form and content of the panwen. Tang panwen have, generally speaking, gotten a "bad rap" in history – one prominent scholar of Bai Juyi has written that: ―[h]ighly antithetical, stilted clauses, archaic vocabulary and various other obligatory mannerisms combined to make the 'judgment' ( panwen) the most pedantic and artificial of all Chinese literary forms. I do not think such an assessment is entirely fair and hope to show that Bai was making important and substantive points in his panwen, to the point of even defying traditional gender attitudes during his time. Indeed, the ultimate argument of this paper is to attempt to show the symbiotic relationship between literature and law – as seen through Tang panwen – in the Chinese tradition, and also highlight the crucial agency and rhetorical power literature offered to the functioning of law.

The word panwen survives today in modern Chinese, meaning "verdicts." One of the central challenges with Chinese legal reform today is the lack of comprehensive written legal judgments by judges to explain their handling of a case. Perhaps the important and dynamic tradition of panwen in the Tang dynasty can provide some insight into how we might encourage the writing of more complete and detailed verdicts in Chinese courts today.