The Price of Doubt: Five Punishments in the 'Lü Xing'

The 'Lü Xing' chapter of the Shang Shu opens by naming the occasion: 'the king had held the realm a hundred years, was old, and broadly made the penal code to bring order to the four quarters' (惟呂命：王享國百年，耄，荒度作刑，以詰四方). Which king, the page does not say. The Shiji's 'Annals of Zhou' puts the occasion under King Mu, and names the speaker as the Marquis of Fu. The same body of text comes down under two titles: one page calls it the Lü Xing, the other says 'it was named the Fu Xing' (命曰甫刑).

Branding, Nose, Feet, Castration, Death

The five punishments are listed by the redemption passage: mo (branding), yi (cutting off the nose), fei (cutting off the feet), gong (castration), and dapi (death). The chapter first tells how the code came to be: the Miao people 'did not use the good, made law by punishment, and made the five cruel punishments, calling them law, killing the innocent' (苗民弗用靈，制以刑，惟作五虐之刑曰法，殺戮無辜); Heaven therefore cut the Miao off. Then come Bo Yi with the rites, Yu with the waters and Hou Ji with the grain, and only then 'the officers made the people live within the middle of punishment, to teach respectful virtue' (士制百姓于刑之中). Punishment is set after a story of virtue and flood control, before it becomes a schedule. The Shiji writes the same five as qing (branding), yi, bin (feet), gong and dapi: qing for mo, bin for fei — two ways of writing, not two sets of punishments.

Then the counts: 'the category of branding has a thousand items, of the nose a thousand, of the feet five hundred, of castration three hundred, of death two hundred; the five punishments have three thousand items' (墨罰之屬千……五刑之屬三千). A thousand, a thousand, five hundred, three hundred, two hundred, three thousand in all. These are items in a code, not cases; the text goes no further, and never says how often any item was used.

A Hundred Huan for Branding

The prices are set out evenly: 'for branding, where the case is doubtful, there is remission, and the fine is a hundred huan, and the crime is verified; for the nose, where doubtful, the fine is double, and the crime is verified; for the feet, where doubtful, the fine is double-and-differenced, and the crime is verified; for castration, where doubtful, the fine is six hundred huan, and the crime is verified; for death, where doubtful, the fine is a thousand huan, and the crime is verified' (墨辟疑赦，其罰百鍰……大辟疑赦，其罰千鍰). A hundred huan for branding, double for the nose, 'double-and-differenced' for the feet, six hundred for castration, a thousand for death; and every clause ends with 'the crime is verified' (閱實其罪). 'Double' and 'double-and-differenced' are relative figures, and neither page gives the arithmetic, so none is supplied here; the huan figures are quoted as they stand, with no conversion to metal weight or to modern money.

The Shiji has a parallel passage, close in wording, and the variants show: 'for branding, where doubtful, the fine is a hundred shuai … for the nose, the fine is double … for the feet, double-and-differenced … for castration, five hundred shuai … for death, a thousand shuai', and 'it was named the Fu Xing' (命曰甫刑). Two things to record: the price of castration — the Lü Xing page reads six hundred huan, its own variant reads five hundred, and the Shiji has five hundred shuai; and the unit — the Shiji writes shuai, and a note on the page quotes Xu Guang that 'shuai is huan' (率即鍰也). The Shiji also reads 'the five speeches are simply trusted' (五辭簡信) where the Lü Xing has 'the five speeches are simply credible' (五辭簡孚) — one character apart.

Where the Punishment Is Doubtful, There Is Remission

The key to the whole redemption scheme is the phrase yi she, 'where doubtful, remission': 'where the five punishments are doubtful there is remission; where the five fines are doubtful there is remission; let the case be carefully examined' (五刑之疑有赦，五罰之疑有赦，其審克之). Only a doubtful case takes the road from punishment to fine, and 'let it be carefully examined' puts that judgement on the judge. Each price is followed by 'the crime is verified': the facts are established first, then the fine is set. So this is not 'pay and escape punishment'. What could be redeemed was a doubtful case, not any offence; and the text never says who paid, or how much was ever paid.

The same chapter has a procedure that looks like a brake on the scheme: 'when both parties are present, the officers hear the five speeches; when the five speeches are credible, they are settled by the five punishments; when the five punishments do not fit, they are settled by the five fines; when the five fines are not accepted, they are settled by the five faults; the defects of the five faults are these: the office, the reversal, the inner, the goods, the solicitation' (兩造具備……五過之疵，惟官、惟反、惟內、惟貨、惟來). Then: 'be clear about one-sided speeches' (明清于單辭), 'goods from a case are no treasure' (獄貨非寶), 'it is not the eloquent who decide cases, but the good' (非佞折獄，惟良折獄), and 'punishments are light in one age and heavy in another; only the balanced is not balanced; there is order and there is summary' (刑罰世輕世重). These clauses show the text guarding against abuse; they are still clauses, not case records.

A Code, Not a Docket

Neither page gives a case. No defendant's name, no actual redemption, no year in which a particular item was used, nothing on how the schedule worked in the various states. The Lü Xing is throughout a proclamation in the king's voice, warning the officers who hold justice and law to 'think on this' and 'revere this'; the Shiji passage is a Western Han retrospect that explains the occasion — 'when the nobles were not at peace, the Marquis of Fu spoke to the king and made the revised penal code' (甫侯言於王，作《修刑辟》) — and closes 'it was named the Fu Xing'. Together the two pages support 'the text says this', not 'Western Zhou justice worked like this'.

Title and date must be kept apart as well. The Shang Shu titles the chapter Lü Xing and calls the speaker only 'the king'; the Shiji says Marquis of Fu and Fu Xing, and places the king under King Mu. The usual view is that the Marquis of Lü (or Fu) was King Mu's minister of justice and made this code; neither page says so outright, so it can only be marked 'generally'. Nor does this article settle it as a 'Western Zhou code'. The line with the Han pieces on the nine-chapter code and the abolition of mutilation is clear: those are Han institutions; this is a Zhou-text code in the Shang Shu.

Between the Two Pages

Read together, the two pages give something concrete: five names of punishment, five prices, three thousand items, the procedure of two parties, five speeches, five punishments, five fines and five faults, and the variants — Lü Xing and Fu Xing, six hundred and five hundred for castration, mo and qing, fei and bin. What they do not give is equally concrete: no verdicts, no enforcement figures, no conversions. The huan figures are quoted as they stand, with no metal weight and no modern money; the names and the title are quoted from the text; and no general verdict on 'ancient cruelty' is offered. The article does one thing: sets out the clauses, and makes clear what 'where doubtful' means.

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