Most scholarship on Chinese legal philosophy has neglected the study of Confucian jurisprudence in practice. As a result of this incomplete portrayal, scholars predominantly view the premodern Chinese Confucian legal tradition as lacking a rule of law system, which has led to blaming Confucianism for much of China’s modern and historical rule of law problems. This article seeks to complicate this view by examining Confucian jurisprudence in practice: specifically, the development of pre-Tang dynasty panwen (written legal judgments). Through analysis of specific panwen from various Chinese primary sources — many of which have never been translated into English — this article will show that even in Chinese antiquity the legal system was not solely marked by codification or the lack of the rule of law, but was far more complex and diverse than most scholars have portrayed. For example, elements of case law played an important role in Chinese legal history. Indeed, it is an especially good time to build our understanding of the use of cases and the role of panwen, in China’s legal past given the Supreme People’s Court’s recent emphasis on the role of case law in contemporary Chinese jurisprudence.The full paper is available here, at SSRN.
Wednesday, December 5, 2012
Ho on "Confucian Jurisprudence in Practice"
Posted by Karen Tani
Norman P. Ho (Netherlands China Law Centre) has posted "Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments)," which is forthcoming in Volume 22, no. 1 of the Pacific Rim Law and Policy Journal (January 2013). Here's the abstract: