1993 Articles

Justice for All: The Application of Law by Analogy in the Case of Zhou Fuqing

Buck, Mary

Perhaps the most outstanding feature of the Qing penal code (Da Qing Lu Li) is its emphasis on the principle that the punishment should fit the crime. This feature raises interesting questions concerning the limits placed on judicial discretion by a legal code as specifically and comprehensively drafted as the Qing code: how much latitude does the judicial decision-maker have in interpreting the law, and what leeway exists to argue the facts so as to reach the desired result? The more neatly the circumstances of a crime fall within the ambit of a statute or substatute, the less opportunity or need there is for interpretation. In contrast, when there is no applicable law governing the circumstances of an act unquestionably detrimental to society, a judge is allowed seemingly unfettered opportunity for interpretation. In these instances the Qing code provides for the application of law by analogy.