Tuesday, August 7, 2012

Ho, "Stare Decisis' in Han China?" and More

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Norman P. Ho, a Research Fellow at the Netherlands China Law Centre, University of Amsterdam, has posted a bunch of interesting papers. They include: 

"'Stare Decisis' in Han China? Dong Zhongshu, the Chunqiu, and the Systematization of Law," Tufts Historical Review, Vol. III, No. 1 (2010).
Dong Zhongshu’s (179-104 BC) pivotal role in the establishment of Confucianism as the official ideology of Han China has been intensely studied by scholars, but his importance as a judge and legal theorist has garnered significantly less attention, especially in the West. This paper first explores, in the context of his broader legal philosophy, Dong’s practice of using the Spring-Autumn Annals (the Chunqiu) to decide cases, attempting to show that Dong viewed the Chunqiu as an alternative and superior source of law to Han codes. Second, while most of the scholars researching this topic have criticized Dong’s practice as overly subjective and out of place with a stable rule of law system, this paper argues that Dong’s use of the Chunqiu should be instead seen as giving more stability, consistency, and flexibility to the Han legal system. In legal terms, Dong’s adherence to the principles of model behavior through the historical events and personages of the Chunqiu can be interpreted as a premodern awareness and concern for respecting precedent (akin to notions of stare decisis) in court decisions. It is hoped this paper also has modern applications to debates involving rule of law and legal institutions in China, showing that principles of precedent and case law are not necessarily new or alien concepts in China’s broad legal tradition, but perhaps potential resources that can enrich and clarify points of contention experienced in China’s civil law system.
"The Legal Philosophy of Zhu Xi (1130-1200) and Neo-Confucianism's Possible Contributions to Modern Chinese Legal Reform," Tsinghua China Law Review, Vol. III, No. 2 (2011).
A vast literature exists on Zhu Xi’s metaphysical and political philosophy; however, his status and views as a legal thinker have not garnered much scholarly attention. Most broadly, this Article argues that Zhu Xi made important contributions to the development of Chinese legal philosophy – by intertwining law closely with both morality and his metaphysical views on li (principle), Zhu Xi further empowered law and elevated its importance in Chinese society. This Article will first lay out and analyze Zhu Xi’s legal philosophy (focusing especially on his view on punishments), situating it within his broader metaphysical philosophy. Then, Zhu Xi’s legal thought in practice, particularly his views on some cases during his time and also his career as a local official, will be examined. Attention will also be given to his community compacts, which the paper argues should be viewed as quasi-legal institutions that supplemented and buttressed the formal legal system. Through this discussion of Zhu Xi’s legal thought in practice, this Article hopes to show that there was consistency between Zhu Xi’s legal philosophy in both theory and practice. Finally, this Article will briefly argue for the relevance of Zhu Xi’s legal thought today in China’s program of legal reform. Ultimately, Zhu Xi can be viewed as a model legal thinker for China who offered a complete, total vision of the place of law in society. Zhu Xi’s views on law challenge continued notions that Confucianism is incompatible with a modern rule of law system, and also further emphasizes the deep engagement Neo-Confucians historically wanted to have with actual policy-making and society.
"Law, Literature, and Gender in Tang China: An Exploration of Bai Juyi's (772-846) Selected Panwen on Women," Tsinghua China Law Review, Vol. I, No. 1 (2009).
Generally speaking, law and literature scholars have primarily focused their attention on American and European literary masterpieces. By comparison, very little scholarly attention has been placed on premodern Chinese literature and law. This article attempts to rectify this scholarly deficit by exploring the panwen (which can be translated as "written verdicts" or "written judgments") literary genre, which reached its peak during the Tang dynasty (618 - 907), when it was institutionalized as a literary form to be tested on the imperial civil service examinations. In particular, this paper will center its analysis on a selection of Tang poet Bai Juyi's (772 - 846) panwen that focus on gender and women issues. This article argues that the relationship between literature and law in the premodern Chinese tradition - as seen through these panwen - was symbiotic. The boundaries between law and literature often overlapped - literature could become a source of law and legal authority, and the literary features and style of the panwen also empowered the force of law expressed through Bai's written verdicts. Furthermore, Bai's panwen were not simply works of literary ornamentation, but utilized analytical legal and substantive reasoning to make important points about the case at hand and the human condition. Indeed, exploration of Bai's panwen not only reveals the importance and value of the panwen genre as a whole to the Chinese literary and legal tradition, but may very well complicate commonly-held assumptions held by the law and literature field in the West.
Check out the full list of articles here.