Comparison Between Chinese and Western Legal Concepts: Law Following Nature and Natural Law

2021 ◽  
pp. 131-142
Author(s):  
Falian Zhang
Keyword(s):  
Natural Law ◽  
Legal Concepts

scholarly journals SOVEREIGNTY AS A MOTOR OF GLOBAL CONCEPTUAL TRAVEL: SANSKRITIC EQUIVALENTS OF “LAW” IN BENGALI DISCURSIVE PRODUCTION

2018 ◽  
Vol 17 (2) ◽  
pp. 487-506
Author(s):  
MILINDA BANERJEE
Keyword(s):  
Natural Law ◽  
Political Theology ◽  
Carl Schmitt ◽  
State Sovereignty ◽  
Lower Caste ◽  
Positive Law ◽  
Legal Concepts ◽  
Conceptual Translation ◽  
Global Travel

How may one imagine the global travel of legal concepts, thinking through models of diffusion and translation, as well as through obstruction, negation, and dialectical transfiguration? This article offers some reflections by interrogating discourses (intertextually woven with Sanskritic invocations) produced by three celebrated Bengalis: the nationalist littérateur Bankimchandra Chattopadhyay (1838–94), the Rajavamshi “lower-caste” peasant leader Panchanan Barma (1866–1935), and the international jurist Radhabinod Pal (1886–1967). These actors evidently took part in projects of vernacularizing (and thereby globalizing through linguistic–conceptual translation) legal–political frameworks of state sovereignty. They produced ideas of nexus between sovereignty, law, and “divine” lawgiving activity, which resemble as well as diverge from notions of political theology associated with the German jurist Carl Schmitt. Simultaneously, these actors critiqued coercive impositions of state-backed positive law and sovereign violence, often in the name of globally oriented concepts of “ethical”/natural law, theology, and capacious forms of solidarity, including categories like “all beings,” “self/soul,” “humanity,” and “world.” I argue that “sovereignty,” as a metonym for concrete practices of power as well as a polyvalent conceptual signifier, thus dialectically provoked the globalization of modern legal intellection, including in the extra-European world.

1. Introduction to law

2020 ◽  
pp. 3-34
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Separation Of Powers ◽  
Theory And Practice ◽  
Legal Positivism ◽  
Ethical Theories ◽  
The Rule Of Law ◽  
Legal Studies ◽  
Law And Morality ◽  
Legal Concepts

This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.

1. Introduction to law

2017 ◽  
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Separation Of Powers ◽  
Theory And Practice ◽  
Legal Positivism ◽  
Ethical Theories ◽  
The Rule Of Law ◽  
Legal Studies ◽  
Law And Morality ◽  
Legal Concepts

This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.

scholarly journals Uniform Application of Laws in the Context of Post-Classical Law

2021 ◽  
Vol 14 (11) ◽  
pp. 1596-1605
Author(s):  
Igor M. Alekseev ◽  
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Legal Theory ◽  
Negative Influence ◽  
Phenomenological Analysis ◽  
Point Of View ◽  
Social Conflicts ◽  
The Rule Of Law ◽  
Positive Law ◽  
Legal Concepts

The article reveals the impotence of classical legal theories to explain the inconsistency of the practice of applying laws. The legal dogma is subjected to the phenomenological analysis. Moreover, its inability to overcome the conventions of pure jurism is shown. From the position of postclassical jurisprudence, the theory of natural law is criticized. The necessity of refusing to contrast natural and positive law is substantiated. The communicative concept of law, its cognitive value and role in ensuring a uniform application of laws are considered. The criticism of integrative legal theories is evaluated from the perspective of the functionality of law in the form of resolving social conflicts. The approach that reduces legal theory to a method of resolving conflicts is called into question. The negative influence of the dichotomy of positive and natural law is argued, both on the uniform application of laws and on the rule of law in general. From the point of view of the functionality of law, the correlation of its material and procedural branches is revealed. As a result, a hypothesis is formulated that the main direction of the development of legal science is the creation of integrative law that can combine various legal concepts, which will allow us to build a rigid legal dogma based on unified methodological foundations and remove contradictions between legal theories in resolving social conflicts

scholarly journals Exemptions from punishment in China and Thailand from the perspective of the theory of Leon Petrazycky

Pravovedenie ◽  
2018 ◽  
Vol 62 (3) ◽  
pp. 570-581
Author(s):  
Alexandre Chitov ◽  
Keyword(s):  
Natural Law ◽  
Criminal Liability ◽  
Legal Positivism ◽  
Striking Similarity ◽  
Social Situations ◽  
Chinese Law ◽  
Legal Provisions ◽  
The Difference ◽  
Legal Concepts ◽  
Discretionary Powers

This paper compares legislative provisions of Chinese and Thai laws pertaining to exemptions from punishment. These exemptions must be distinguished from the exemptions from criminal liability. In the latter case, Chinese and Thai courts cannot inflict punishment on a person who is justified or excused in committing an act otherwise defined as a crime. In contrast, an exemption from punishment is granted by courts as an exercise of discretionary powers. Chinese and Thai laws bear similar characteristics in defining the exemptions from criminal liability, but differ significantly in the scope of discretionary powers of courts to exempt from punishments. Chinese law allows judges to have more discretion in not imposing penalties on an offender than Thai law does. The reason for the difference lies in a greater openness of Chinese law to moral considerations to be played in sentencing practices. Thai law is much more influenced by the philosophy of legal positivism. These similarities and differences are discussed in the light of the theory of Leon Petrazycki. It is argued that Petyrazycki’s concept of intuitive law as attributive imperatives is important in explaining and justifying the powers of the court not to inflict punishment if it meets the goals of criminal justice. From the viewpoint of the theory of Petrazycki, Chinese law can accommodate better the intuitive law of the public to the exigencies of various social situations. However, Petrazycki’s theory alone cannot override many reasons against giving judges extensive powers to apply their intuitive laws to exempt offenders from punishment. There is a plurality of psychological imperatives which may conflict with each other. To resolve those conflicts, it is necessary to draw on the idea of natural law. Even though Petrazycki did not explicitly argue for the existence of the natural law, its existence can be drawn from common psychological imperatives as well as from a striking similarity between various systems of criminal law in such diverse countries as China and Thailand. Many of the legal provisions of their laws display certain common legal paradigms that cannot be only accounted for by the adoption of the Western legal concepts.

Sign in / Sign up

Export Citation Format

Share Document