li 例, legal precedents

The jurisdictional type of precedents (li 例) has evolved over time, particularly after the Tang dynasty 唐 (618-907), when it became a foundation for adjudication in legal cases.

The practice of deciding cases based on precedents (chengli 成例) can be traced back to the Qin dynasty 秦 (221-206 BCE), when it was referred to as "issues solved by the court" (ting xing shi 廷行事). The Han dynasty 漢 (206 BCE-220 CE) inherited this system from the Qin but renamed it bi 比, meaning "comparison [of cases]", specifically jueshi bi 決事比 meaning "comparison to solve cases". At times, precedents were referred to as "former issues" (gushi 故事), as evidenced in the title Han Jianwu gushi lüling 漢建武故事律令.

By the Tang period, this practice was formally known as li. It served as a type of legal regulation, employed when explicit statutory provisions (lü 律, ling 令) were lacking. However, li were not permitted to supersede formal laws (lü).

During the Song period 宋 (960-1279), li were renamed duanli 斷例 "precedents for judgment" and were officially recognised under the principle that "only when the law is silent should precedent be applied" (fa suo bu zai, ranhou yong yi 法所不載，然後用例). Despite this rule, Song officials placed even greater emphasis on precedents than during the Tang period. In practice, li sometimes overshadowed formal legal statutes, resulting in a situation where, even when laws existed, officials relied entirely on precedents; and if no precedent existed, legal matters remained unresolved.

As a result, the Song dynasty saw the extensive compilation of precedent canons, including works such as Yuanfu xingming duanli 元符刑名斷例 and Qiandao xinbian tezhi duanli 乾道新編特旨斷例. Additionally, another category of li, termed zhihui 指揮, emerged, referring to directives or decisions issued by the Imperial Secretariat (shangshusheng 尚書省) and other administrative offices. During Qin Hui's 秦檜 authoritarian rule, governance increasingly relied on official endorsements (dutang pizhuang 都堂批狀) and orders (zhihui 指揮) for decision-making. These directives were incorporated into the official legal records of the Ministry of Personnel (libu 吏部), effectively placing them on an equal footing with established laws (chengfa 成法). In practice, however, this often resulted in "using precedent to override the law" (yin li po fa 引例破法).

The Yuan dynasty 元 (1279-1368) placed even greater emphasis on judicial precedents, incorporating them as a significant component of legal codes. In the Yuan Code Da-Yuan tongzhi 大元通制, 717 out of 3,539 articles were duanli, while in the Zhizheng tiaoge Code 至正條格, 1,050 out of 3,359 articles were duanli. This encouraged officials to actively collect and compile precedents, fostering a legal environment where "there were precedents to follow, but no laws to uphold" (you li he yuan, wu fa ke shou 有例可援，無法可守).

During the Ming period 明 (1368-1644), li and lü coexisted, with li serving as a supplements to the statutory law. Specific precedent-based regulations were established, such as the Guizhou turen duanzui li 貴州土人斷罪例 (for adjudication of trials involving or among natives) or the Yan wugao fanzuo li 嚴誣告反坐例 (concerning punishment for false accusations), and the Daolüe yinkuang xinli 盜掠銀礦新例 (pertaining to robbery and theft from mines). A more general collection is the Wenxing tiaoli 問刑條例.

Over time, li accumulated and expanded, gradually evolving from specific case precedents into widely applied regulations. By the late Ming dynasty, the number of li had nearly equalled that of lü. This led to a cycle wherein new precedents arose from laws, and further precedents emerged from existing precedents, resulting in an increasingly complex and problematic legal system—described as "the more precedents emerge from the statutes, and the more precedents generate new precedents, the greater the inefficiencies and endless complications."

The Qing dynasty 清 (1644-1911) inherited this system, maintaining the dual structure of lü statutes and li precedents. In 1725, the Da-Qing lü jijie fu li 大清律集解附例 "Collected Explications of the Great Qing Code with Attached Precedents" was promulgated, including 824 precedents. Precedents from previous dynasties were categorised as "original precedents" (yuanli 原例), those added during the Kangxi reign-period 康熙 (1662-1722) as "supplementary precedents" (zengli 增例), and those issued by imperial decree or approved official petitions as "imperially endorsed precedents" (qinding li 欽定例). Collectively, these were known as "specific precedents or regulations" (tiaoli 條例). Over time, the number of li continued to grow, reaching 1,456 by 1761 and further expanding to 1,892 by 1870. In 1746, the Qianlong Emperor 乾隆帝 (r. 1735-1796) issued the rule that every five years, the specific precedents were subject to "small revision" (wu nian yi xiao xiu 五年一小修), and every ten years to a "large revision" (da xiu 大修).

As li continued to accumulate, various issues arose: contradictions between earlier and later precedents, excessive punishments beyond the statutes of the legal code (lü wai jia zhong 律外加重), precedents overriding formal laws, solitary, case-specific precedents (yi shi she yi li 一事設一例), and regionally exclusive precedents. This system became increasingly convoluted, with new precedents emerging merely as a response to existing ones.

Following the Xinhai Revolution in 1911, the Beiyang Government maintained the imperial precedent system, implementing both judicial precedents (panli 判例) and interpretative precedents (jieshi li 解釋例). The interpretative precedents were inspired by Western legal systems, resulting in the compilation of a significant body of judicial and interpretative precedents. Under the Kuomintang government, the legal system comprised statutory law (chengwenfa 成文法), judicial precedents (panli), and interpretative precedents (jieshi li). While inheriting the precedent system from the Beiyang Government, the KMT greatly expanded its application, employing it to address gaps in statutory laws and clarify legal ambiguities.