I could help shed some light regarding lawyers (or their functional equivalencies) in Ancient China.

Before I begin, allow me to add a disclaimer about certain unavoidable constraints when engaging in this type of comparative historical analysis. Please keep in mind that legal institutions throughout ancient China, to put it mildly, were rather different from most modern legal systems (e.g., various common law and Civil law based systems). Therefore, it is impossible to directly start from “lawyers” as understood in terms of our present-day senses and sensibilities and automatically assume there will be a 100% equivalent in ancient China. When engaging in comparative historical studies, we must contextualize a given concept within the knowledge system and rule framework in which such concept operates. To arrive at a more nuanced understanding of “lawyers” in premodern China, the best we could do is to consider how people in ancient China addressed the problems of advocacy and pursue legal remedy within rule frameworks and institutions that were available to them.

With that out of our way, let us begin with some basic characteristics of Imperial China. While different institutions and systems emerged and disappeared throughout more than two thousand years of dynastic cycles, bureaucracy and scholar officials have persisted as the backbone of law and politics throughout Imperial China. Hanzi or Chinese characters, as a logographic writing system separate from the vernaculars, allowed the imperial bureaucracy to operate under a unified written administerial writing system across vast territories with divergent spoken languages. To put it simply, literacy has always been central to the basic functioning of legal and political institutions throughout Imperial China. Consequently, its literacy driven bureaucracy requires a class of highly educated scholar-officials (or literati / 士大夫 in Chinese) to administer, so a relatively centralized imperial rule could be maintained.

Likewise, the scaffold of Imperial Chinese legal system was constructed around Hanzi literacy. This is quite evident from the thirty-volume Tang Code or 《唐律疏議》introduced in 652AD (唐高宗永徽三年),which served as the model code for all subsequent dynasties, and marked the final transition from early imperial inquisitorial legal system (Qin-Han rites) to the magisterial legal system which persisted in China until the early 20th century. Not only did the Tang Code provided highly detailed provisions for all types of legal procedures (e.g. making a criminal complaint, seeking damages, filing appeals etc.…) with meticulous webs of rules and exceptions, each step of the process must be handled in writing, with highly specific and formalized language style guidelines. To get a feel of what imperial Chinese code is like (and potential consequences for not following strict rules governing written legal forms), take a look at the following provision from the Tang Code, Volume 24 Adversarial Complaint, Article 14-1 / Indent 359 “On Skip-Filing Complaint” (rough translation by myself):

凡諸辭訴 皆從下始 從下至上 令有明文。For filing any type of legal complaint, the petitioner must begin the process at the lowest level of magistrate (at county or 縣 level), and for each step of the appeal process must be filed the government office at the level immediately above the previous office, and the petitioner must present the complaint the written official form as required by law for each step of the process. 謂應經縣而越向州、府、省之類 其越訴及官司受者 各笞四十 Should the petitioner skip the county level magistrate office and directly skip-file their complaint to the prefecture level, or to the commandery or provincial level offices, the presiding officer shall still accept the written complaint (provided that the petitioner skipped only one level of lower office), and separately sentence the petitioner who skip-filed one lower office to forty lashes。若有司不受 即訴者亦無罪 If the petitioner skip-filed the complaint to due to the lower level magistrate refusing to accept the written complaint without proper cause, the petitioner shall not be punished for skip-filing. 若應合爲受 謂非越訴 依令聽理者 即爲受 If the petitioner skip-filed the complaint to the higher office as the result of following the order of their magistrate or as required by law, such case shall not be considered as skip-filing, and must be accepted without delay. …若越過州訴 受詞官人判付縣勘當者 不坐 請狀上訴 不給狀 科「違令」笞五十 If the petitioner directly skip-filed the written complaint to office above the prefecture level (the government office directly above the county magistrate, therefore skipping two levels at once), the presiding officer shall not accept the complaint, nor shall the complaint be sent back to the county magistrate with appropriate jurisdiction. The complaint shall be dismissed with prejudice (cannot be appealed), and one “violation of order” shall be entered into the petitioners’ permanent record and sentenced to fifty lashes.

As evidenced by the imperial code, navigating the imperial Chinese legal structure is not something for the faint heart. Even for something commonplace such as filing an adversarial complaint at your local magistrate’s office (known as 鬬訟in Tang Code) against your neighbor for letting his unrestrained dog destroy your sheep enclosure, you must present your case in meticulously prepared written form, and make sure that you have adhered to all the procedural rules and exceptions. Did you forget to print your name on the complaint form? Case thrown out plus one year in hard labor (Tang Code vol. 24, art. 6). You had your name but didn’t write down the year and date of your complaint? Case sent back plus fifty lashes for carelessness! (Tang Code vol. 24, art. 10). Correctly prepared your written complaint but forgot your father explicitly forbade you from going to the magistrate’s office without your father’s permission? Too bad, that will be two years of hard labor for breaching your filial duty (Tang Code vol. 24, art. 3). Keep in mind that all documents for official purposes are written in Classical Chinese, a highly conservative written script that changed extraordinarily little since the Warring States period (451-221 BC), and uses a completely different grammar and lexicon than spoken Chinese languages. To make matters worse, the written Chinese uses a mostly logographic script known as the Hanzi system, which is composed of tens of thousands of distinct characters (or more accurately, glyphs). Each Hanzi glyph comes with its prescribed pronunciation and stroke order that must be individually memorized. But wait, memorizing many thousands of unique Hanzi characters do not make you literate, not even close! To be considered functionally literate in pre-modern China, one must also become well-versed in classical Chinese canon -- a body late-Zhou era (c.770-221BC) philosophical and historical texts which at minimum includes [1]Classic of Poetry, [2]Book of Documents, [3]Book of Change (or I Ching), [4]Book of Rites, [5]The Spring and Autumn Anneals, [6]The Analects, [7]Great Learning, [8]Doctrine of the Mean, and [9]Mencius -- collectively known as 四書五經 or Four Books and Five Classics. This is because writing in Classical Chinese requires the writer to conform to the language style, word usage, and moral principles as defined in these classical texts. Unsurprisingly, prior to modern compulsory education, only an exceedingly small percentage of the Chinese population were considered literate throughout Chinese history. This means that to navigate the literacy-driven legal system of Imperial China, most people will have to rely on members of the literati class in every step of the process.

In my next post, I will dive into how certain members of the Chinese literati class performed the role as “lawyers” in pre-modern China, and how they first emerged in mid-Imperial China with the rise of Tang Code and the magisterial Chinese legal system, and became a more formalized professional class by Ming dynasty known as Sòng shī (訟師 lit. “master litigators”).

I can’t answer that question for the entire non-western world, but I can provide some information on Late Imperial China. (1368-1911) and a bit after. The Chinese legal system did not have professional lawyers in the modern sense until the 20th century. What they did have were “litigation masters” songshi 訟師These were individuals who did not appear in court, but did prepare documents and plaints, gave advice and interacted with court personnel on behalf of clients. They might be anything from former exam candidates with considerable knowledge of law and procedure to just literate men working on behalf of the illiterate.

-The old historiography

There are at least two traditional, mostly superseded, views that are important here. One is the view of litigation masters as trouble-making parasites who stirred up conflict and profited from perverting the system of justice. This was a very common view among district magistrates (the ones trying the cases) and in the government in general. One local official said their “hearts resemble those of tigers and wolves and whose actions can be compared with those of goblins and demons.” They “use their caustic and irrational writings to twist things around” and then swindle their clients out of their money. (Huang, 1984 p. 261) They would “cleverly stir up litigation”, “fermenting little troubles into big affairs” and “drag good people into endless trouble.” (Macauley, p. 89)

One reason for these views is that these people really were a problem for district magistrates. It was easier to deal with commoners who did not know the law than those who did, and litigation masters were to some extent lumped in with the (sometimes overlapping) categories of yamen clerks and scriveners who dealt with the document flow inside the court (yamen). Like the songshi these were people who had some education and were difficult to control. A district magistrate had to deal with all sorts of legal cases on top of his other duties, and having to go through a mass of often corrupt sub-officials and non-official people only made it harder.

Another reason for the contempt for litigation masters was that addition to being a practical problem for magistrates, their very existence was a moral affront. Both magistrates and the emperor urged common people to solve matters through mediation, without resorting to the courts. Evil litigation masters were often accused of stirring up the upright (and non-contentious) common people. The existence of huge backlogs of unresolved cases (this particularly annoyed the Jiaqing emperor) was seen as a sign that local officials were neglecting their duty to promote local harmony and were being deceived by the litigation masters and corrupt clerks.

Writing out a plaint for someone else was illegal. Magistrates were officially required to see to it that litigation masters were not practicing in their districts, and lower degree holders found to be practicing as songshi were to be punished more harshly than regular commoners. So it was not just rhetoric, there were actual laws attacking them. Much of the scholarship on litigation masters is based on the cases of those who were caught and punished

The second traditional view that was common in the older historiography is that China did not really have a system of civil law, only criminal law, and that ordinary people tried to stay away from the courts as much as possible, and solved things through mediation by their guild, clan or village (Dykstra pp 5-7) or possibly violence. This is a belief that grew out of Western contempt for the Chinese legal system and thus calls for foreigners to be exempt from it. This is clearly wrong (Chinese people used the courts all the time) but it does point to the real importance of arbitration and mediation in dealing with conflict. Certainly the emperor and his officials thought that most cases should be dealt with by mediators rather than by the courts, and there were plenty of sayings a stories about the dangers of getting involved in an endless lawsuit. (Just like in the West, where there are cautionary tales like Dickens’ bit about Jarndyce v Jarndyce.)

-How it actually worked

Litigation masters did exist, and they were all over China in the Ming and Qing. The Qing code was published in many editions, as were all sorts of legal handbooks that would make it possible for an educated man to go into this business. 68 of the 146 cases of people being prosecuted for this that Macauley looks at had some sort of literati status. It seems to have been a possible job for licentiates, lower exam degree holders who were never going to get a government job but needed to eat. These would be people who had the social status and knowledge to deal with the clerks at the yamen. They knew their way around the county and provincial capital. They would make great mediators, and in fact some of them were. While there were litigation masters who did this full-time, there was a lot of overlap between songshi and mediators, and writing up a plaint was often the first step in mediation. A lot of them seem to have been family or lineage members doing this for relatives, although in scandalous stories they were professionals who hung out in the inns around the yamen.

Although the litigation masters were criticized for making trouble and selling their literati status for money, they did serve useful purposes, and magistrates seem to have been aware of this and rarely made serious efforts to get rid of them. Songshi and clerks could turn rambling complaints into actual legal cases. A good chunk of the cases Macauley looks at were on behalf of widows, who could not bring cases themselves, nor were they likely to be able to force mediation on someone. Using a songshu let commoners avoid being cheated by the official scriveners (daishu 代书) who were registered with the yamen and wrote things out for a fee.

Mostly, though things were solved through mediation. If you read the cases discussed in the sources below you will notice how often a legal case is only one small part of a longer process of dispute resolution that would involve negotiation, mediation, and sometimes even violence. Informal resolution always had the legal system hanging over it, in that the informal process always had the option of turning formal if one side wanted it to. (This is not that different from modern legal systems, where lots of things are settled out of court, or settled out of court after the formal process has begun.) Phillip Huang (1998) gives an example from a case involving land. (pg 63-4) Hao Luoke’s brother had died, and the widow had remarried, thus taking her and her children out of the Hao family in traditional social views and in Qing law. This was under the Republic, however, and under the new code Hao Luoke’s two daughters were still his daughters, and their mother brought a suit demanding half of the family land under the new code. (Huang is using the Mantetsu surveys for evidence. They are a great source on how cases actually played out, but they are a bit late, although scholars usually assume that legal culture had not changed too much in the first decades of the republic.) The mediator (also named Hao 😊) realized than the widow had a chance to win the case, and so got Hao Luoke to agree to provide dowries for the two girls on behalf of his dead brother. This was worth less than the value of the land, but satisfied both parties, and it was written up as formal household division to forestall future suits. This is a case that was solved through mediation, but almost certainly would not have been solved this way without the formal legal system behind it as an option for the widow.

Sources Huang, Philip C. C. Civil Justice in China: Representation and Practice in the Qing. Stanford: Stanford University Press, 1998.

Huang, Liuhong, Djang Chu, trans A Complete Book Concerning Happiness and Benevolence: A Manual for Local Magistrates in Seventeenth-Century China. Tucson, Ariz.: University of Arizona Press, 1984.

Dykstra, Maura Dominique. “Complicated Matters: Commercial Dispute Resolution in Qing Chongqing from 1750 to 1911.” Ph.D., University of California, Los Angeles.

Macauley, Melissa. Social Power and Legal Culture: Litigation Masters in Late Imperial China. 1st edition. Stanford, Calif: Stanford University Press, 1998.

Zhang, Ting. Circulating the Code: Print Media and Legal Knowledge in Qing China. Seattle: University of Washington Press, 2020.