The Best of the Chinese and of the Western

2020 ◽  
pp. 101-117
Author(s):  
Xiaoqun Xu
Keyword(s):  
Qing Dynasty ◽  
Due Process ◽  
Judicial Independence ◽  
Judicial Reform ◽  
The Rule Of Law ◽  
The Qing Dynasty ◽  
Chinese Law ◽  
Law And Justice ◽  
Eighteenth And Nineteenth Centuries ◽  
Unequal Treaties

Chapter 4 introduces the conflicts arising in the eighteenth and nineteenth centuries between the Qing dynasty and Western powers over Chinese law and justice that contributed to the Opium Wars and the resultant unequal treaties. It explains how, compelled by Western pressure and modeled after Western systems, the Qing dynasty, not foreseeing its own demise in ten years, began a far-reaching legal-judicial reform to modernize law codes and judicial institutions and practices. Guided by the principles of the rule of law, judicial independence, and due process, the reformers set out ambitious reform goals that would result in some concrete changes in laws and institutions, and more importantly, the goals would outlive the Qing dynasty to be pursued and implemented in the Republican era (1912–1949).

The Rule of Law, Judicial Independence, and Due Process

2020 ◽  
pp. 118-145
Author(s):  
Xiaoqun Xu
Keyword(s):  
Rule Of Law ◽  
Due Process ◽  
Judicial Independence ◽  
Judicial Reform ◽  
Party Government ◽  
The Rule Of Law ◽  
Nationalist Party ◽  
Reform Plan ◽  
Occupied Territories ◽  
Beijing Government

Chapter 5 examines the continuation of the legal-judicial reform and its achievements and limitations under the Beijing government (1912–1927) and the Guomindang (GMD, or Nationalist Party) government (1927–1949). The Beijing government tried to implement an ambitious reform plan but failed to materialize it completely due to a lack of resources, among other problems. The GMD continued the reform but also instituted practices particular to its ideology of ruling the country through the party, including the invention of political offenses and their punishments through special laws and special courts. The durability of positive reform outcomes in those years is shown in the way the Chinese judiciary functioned in the Japanese-occupied territories during the Second Sino-Japanese War (1937–1945).

Heaven Has Eyes

2020 ◽  
Author(s):  
Xiaoqun Xu
Keyword(s):  
Twentieth Century ◽  
Due Process ◽  
Past Century ◽  
Judicial Reform ◽  
Moral Code ◽  
Moral Principles ◽  
History Of ◽  
Legal Thinking ◽  
Law And Justice ◽  
And Function

A history of Chinese law and justice from the imperial era to the post-Mao era, the book addresses the evolution and function of law codes and judicial practices in China’s long history and examines the transition from traditional laws and practices to their modern counterparts in the twentieth century and beyond. From ancient times to the twenty-first century, there has been an enduring expectation or hope among the Chinese people that justice should and will be done in society, which is expressed in a popular Chinese saying, “Heaven has eyes.” To the Chinese mind in the imperial era, justice was, and was to be achieved as, an alignment of Heavenly reason, state law, and human relations. Such a conception did not change until the turn of the twentieth century, when Western-derived notions—natural rights, legal equality, the rule of law, judicial independence, and due process—came to replace the Confucian moral code of right and wrong, which was a fundamental shift in philosophical and moral principles that informed law and justice. The legal-judicial reform agendas since the beginning of the twentieth century (still ongoing today) stemmed from this change in the Chinese moral and legal thinking, but to materialize these principles in everyday practices is much more difficult to accomplish, hence all the legal dramas, including tragedies, in the past century or so. The book lays out how and why that is the case.

Judicial Independence: The Threat from Within

2005 ◽  
Vol 38 (3) ◽  
pp. 120-153 ◽  
Author(s):  
Michal Agmon-Gonnen
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Justice System ◽  
Due Process ◽  
Judicial Independence ◽  
Judicial System ◽  
The Rule Of Law ◽  
Number Of Factors ◽  
The Right ◽  
Democratic Country

In a democratic country an independent justice system plays a major role in protecting human rights and the rule of law. However, an independent judicial system is at risk from a number of factors that derive from outside the sytsem as well as from within. The external dangers facing judicial independence are often discussed; whereas the internal perils that weaken the system as well as judicial independence, are far less known. This article will focus on the danger from within and will discuss the judicial administration's influence on human rights, specifically the right to due process under the law.

WAS TRADITIONAL CHINESE LAW A MERE “MODEL”? PART TWO

2004 ◽  
Vol 1 (2) ◽  
pp. 297-322 ◽  
Author(s):  
Shigeo Nakamura
Keyword(s):  
Qing Dynasty ◽  
Future Research ◽  
Criminal Cases ◽  
Common People ◽  
Legal Cases ◽  
Individual Basis ◽  
The Qing Dynasty ◽  
Chinese Law ◽  
The Law ◽  
Civil Cases

Inside and outside China, it has been widely believed that in premodern China common people did not bring civil cases to magistrate's courts but settled them at the level of their clan, village or guild. However, David C. Buxbaum's research based on the Dan-Xin Archive and Shiga Shu¯zo¯'s study of legal memoranda show that people quite regularly turned to the magistrate's court to resolve civil disputes. During the Qing dynasty, legal cases were divided, not in civil or criminal terms, but according to how serious the offence was. The less-serious offences were civil cases that included disputes concerning marriage and inheritance, land and property, money and loans, and minor battery. Whereas the latter category, criminal cases in today's terms, were handled with the intention of maintaining legal stability, magistrates involved with civil cases tried to strike a reasonable balance by examining each case on an individual basis. However, how the law was applied to civil cases remains a subject for future research.

Rule of law (Rechtsstaat)

2018 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Due Process ◽  
Ad Hoc ◽  
Legal Regulation ◽  
Political Organization ◽  
The Rule Of Law ◽  
Rules And Principles ◽  
The Law ◽  
Law And Justice ◽  
Legal Constraints

The ‘rule of law’ most simply expresses the idea that everyone is subject to the law, and should therefore obey it. Governments in particular are to obey law – to govern under, or in accordance with, law. The rule of law thus requires constitutional government, and constitutes a shield against tyranny or arbitrary rule: political rulers and their agents (police and so on) must exercise power under legal constraints, respecting accepted constitutional limits. The British and US conceptions of this ideal find a parallel in the Germanic concept of the Rechtsstaat, or ‘state-under-law’, where the state as an organized entity is conceived to be limited by laws and by fundamental principles of legality, rather than being a purely political organization that can dispense with law in the interests of policy. Such concepts play an essential part in the political philosophy of liberalism; yet, characteristically, their more detailed exposition and indeed their nature and meaning are contested and controversial. In a wider sense, the rule of law articulates values of procedural fairness or due process which affect the form of legal rules and govern the manner of their application. Those values both enhance the utility of legal regulation and also acknowledge underlying ideas of human dignity and autonomy. In a further sense, the rule of law refers to the faithful application of those rules and principles which constitute the law of a particular legal system. It expresses the idea that legal obligation should always be determined in particular cases by analysis of existing law – as opposed to ad hoc legislation by judges – even where disagreement may exist about the true meaning or content of the law. The connection between the rule of law and justice is complex. The rule of law cannot itself guarantee justice, but it forms an essential precondition. In so far as it imposes formal constraints on the laws enacted or enforced, which ensure that they are capable of being obeyed and that they are fairly administered, the rule of law assumes a conception of moral personality – of how individuals should be treated, as responsible human beings, capable of a sense of justice – which links the idea with the values of freedom and autonomy, and the ideal of equality.

“Compassion for the Weak”: Juvenile Offenders in the Qing Dynasty Legal System

Modern China ◽  
2018 ◽  
Vol 44 (4) ◽  
pp. 374-417
Author(s):  
Jing Fenghua
Keyword(s):  
Juvenile Offenders ◽  
Qing Dynasty ◽  
Legal System ◽  
Justice System ◽  
Early Time ◽  
Vulnerable Groups ◽  
The Qing Dynasty ◽  
Chinese Law ◽  
Legal Provisions ◽  
The Law

When children committed homicide during the Qing dynasty, their cases were handled by the same justice system used for adult offenders. But from a very early time, Chinese law endorsed the notion that children and other vulnerable groups were worthy of the law’s compassion. This article explores legal avenues to that compassion, from the law’s efforts to clarify and define what marked a perpetrator as “weak” to the various legal provisions permitting such “weak” offenders to memorialize for mercy or request reduction and redemption of punishment. It finds that compassion for the weak was woven into both the letter of the law and the law in practice, resulting in a justice system that balanced the needs of victims and offenders alike.

Grammatical Descriptions in Manchu Grammar Books from the Qing Dynasty

2019 ◽  
Vol 41 (1) ◽  
pp. 39-55
Author(s):  
Takashi Takekoshi
Keyword(s):  
19Th Century ◽  
Qing Dynasty ◽  
The Qing Dynasty ◽  
Chinese Scholars ◽  
High Degree ◽  
The 19Th Century

In this paper, we analyse features of the grammatical descriptions in Manchu grammar books from the Qing Dynasty. Manchu grammar books exemplify how Chinese scholars gave Chinese names to grammatical concepts in Manchu such as case, conjugation, and derivation which exist in agglutinating languages but not in isolating languages. A thorough examination reveals that Chinese scholarly understanding of Manchu grammar at the time had attained a high degree of sophistication. We conclude that the reason they did not apply modern grammatical concepts until the end of the 19th century was not a lack of ability but because the object of their grammatical descriptions was Chinese, a typical isolating language.

Sign in / Sign up

Export Citation Format

Share Document