‘Legislative Turn' in Punishment
Over the course of the eighteenth century a succession of Qing emperors enacted hundreds of substatutes that codified changes in taxation, reorganised governance of ethnic minorities, eliminated hereditarily debased legal status, addressed contentious property rights issues and imposed harsh penalties for an increasing number of specifically defined violent crimes.
Peaking in the eighteenth century, the proliferation of new regulations more than quadrupled the number of substatutes in the Qing Code in comparison to the Ming Code. The most prolific Qing ‘legislators' were the Yongzheng Emperor (1723-35) and the Qianlong Emperor (1736-95), who together added more than a thousand new substatutes to the Qing Code during the eighteenth century. The broad legislative turn in Qing rule was conspicuous in the response to violent crime and capital punishment. The steady accretion of legislation included an increase in the listing of offences defined as capital crimes, restrictions on statutory pardons, a streamlining of review procedures, expansion of penal institutions and the extension of bare stick legislation. Of all the changes to criminal law, however, the resort to an aggressive policy of deterrence predicated on capital punishment was the most consequential. By embracing a strategy that deployed the presumed deterrent power of capital punishment, aimed at a particular type of offender, eighteenth-century emperors presented staggering practical and ideological challenges to the judicial bureaucracy.Ideologically, this legislative initiative indicated a new direction in Chinese criminal justice. Most notably, bare stick legislation profiled a new class of despicable and wilful miscreants. Often associated with unmarried downwardly mobile males who were frequently scapegoated for sexual crimes, eighteenth-century bare stick crimes were extended to include the illegal activities of local government underlings and pettifoggers, and crimes such as false accusation, fraud, opening graves, hoarding commodities, tax resistance and witchcraft, among others.
The far-reaching ideological implications of this effective redefinition of criminal behaviour are too complex to address in detail here, but it is sufficient to note that over time the common denominator of bare stick crimes was not social status of the perpetrators but their moral character. Similarly, these unlawful acts were diverse, but collectively they were all related to the side-effects of an increasingly complex commercialised economy and a highly mobile population. In this way, one could argue that bare stick legislation was an innovative response to combating crime, but the reliance on strict enforcement and expanded use of the death penalty ran the risk of toppling the highly centralised criminal justice system. Given the procedural requirements for adjudicating capital offences, one predictable and inescapable result of increasing the number of crimes eligible for the death penalty was that the sheer number of cases under review would increase. Making matters worse, the Qing rulers did not augment judicial personnel, pushing the judicial bureaucracy to near breaking point.