In the Fall 2011 semester David Friedman was a visiting professor at George Mason University. That happened to be my first semester there as a Ph.D. student, so I lucked out in a big way. He ended up doing a seminar series, and I got in on some of that also. He mainly talked about a project he’s been working on for a few years now, a course he’s been teaching called “Legal Systems Very Different from Ours”, which he is slowly turning into a book. You can find the draft here. I think it’s a fascinating topic, and he’s one of the few people who could pull it off extremely well.
I recommend reading all the sections. I saw this in the section on Imperial Chinese law:
Where the offense did not seem to fit any category in the code, the court felt free to find the defendant guilty of doing what ought not to be done or of violating an Imperial decree—not an actual decree but one that the Emperor would have made had the matter been brought to his attention. The underlying assumption was that people ought to know right from wrong without the assistance of the legal code, hence it was proper to punish those who did wrong, although the lack of a relevant legal rule raised difficulties in setting the appropriate punishment.
This is surely a unique legal code in world history. (If you have evidence to the contrary, please let me know.) What makes that fact even more surprising is how it’s probably a very common opinion, worldwide and throughout time, that people should know basic right from wrong without having it listed out for them, and there’s still just this one example in law. My gut feeling is that this must have been used by judges to nail people they couldn’t rightly get on any other charge, which is almost guaranteed to be abused more often than not, but without more information about the Chinese legal system I wouldn’t bet money on it yet.
So, just as a thought experiment, join me in considering what the efficiency rationale of this law was. There must have been one if it lasted for several hundred years or more.