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The History and Theory of Legal Practice in ChinaHistorical-Social Jurisprudence goes beyond the either/or dichotomy of Chinese vs. Western law, tradition vs. modernity, and the substantive-practical vs. the formal. It does so by proceeding not from abstract legal texts but from the realities of legal practice. Whatever the declared intent of a law, it must in actual application adapt to social realities. It is the two dimensions of representation and practice, and law and society, that together make up the entirety of a legal system. The assembled articles by the editors and a new generation of Chinese scholars illustrate a new "historical-social jurisprudence," and explore the possible conceptual underpinnings of a modern Chinese legal system that would both accommodate and integrate the unavoidable paradoxes of contemporary China.
Contents
Author BiographiesSeries ForewordEditor's IntroductionPhilip C. C. HuangPart One: Women and the Law1. A Ming-Qing Transition in Chinese Women's History? The Perspective from LawKathryn BernhardtScholarship on Women in the Late Ming and QingThe Ming-Qing PresentThe PastThe FutureThe Perspective from LawBetrothalMarriageDivorcePropertyThe Peasantization of Law2. Women's Choices under the Law: Marriage, Divorce, and Illicit Sex in the Qing and the RepublicPhilip C. C. HuangPart 1: The QingThe Legal Categories and Pertinent LawsQing ConstructionsVariant Concepts in Legal and Social PracticeWomen as VictimsThe Burdens of Passive AgencyPart 2: The RepublicWomen's Agency in Guomindang LawWomen's Agency in Practice3. Marriage, Law, and Revolution: Divorce Law Practice in the Shaan-Gan-Ning Border RegionLiu YangEvolution of Marriage LegislationDivorce Suits in the Context of RevolutionWomen in Divorce LitigationKangshuGongjiarenPeasant WomenPeasant Husbands in Divorce LitigationTiaobo and PeimiA Peasant Husband Battles to Save His MarriageConclusion4. : (From De Facto Separation to Legal Separation: Rights and Obligations in Husband-Wife Separations from the Qing to the Republic)(Hongying Li): : ( ) ( ) ( ) 5. Representation and Practice in "Privately Settling Illicit Sex Offenses," with Attention to the "Third Realm" from the Late Imperial Period to the PresentFenghua JingResearch from Contemporary Case Records of "Privately Settling Illicit Sex Offenses""Privately Settling Illicit Sex Offenses" in the Qing Code"Privately Settling Illicit Sex Offenses" in Qing Legal PracticePrivate Settlement before the State Was Aware of the MatterPrivate Settlement after the State Was Aware of the MatterChanges in the Modern Conception of Illicit Sex CrimesA Substantive Split in "Privately Settling Illicit Sex Offenses"Rape Cases and Public ProsecutionPrivate Settlement of Rape Cases under the Public Prosecution SystemPrivate Settlement in the Absence of ProsecutionWithdrawing a ComplaintRape and Complaint by the Victim HerselfPart Two: Custom, Mediation, and Law6. Between Informal Mediation and Formal Adjudication: The Third Realm of Qing Civil Justice Philip C. C. HuangThree Stages in a Qing LawsuitThe Initial StageThe Middle StageResolution in the Middle StageThe Final Stage: The Court SessionJustice in the Third RealmThe Court as Catalyst Prompting a SettlementThe Role of Court OpinionThe XiangbaoSources of Abuse in the Third RealmXiangbao Power and AbuseRunner Power and AbuseFormal, Informal, and Third-Realm JusticeState and Society Seen through the Judicial Process7. " " " " ("Customary Law" as the "Source of Law" in Modern China)(Shengfeng Yu)" " : " " " " " ", " "? :" " : 8. : (Extralegal Origins of the Dangers of a Corpse: An Analysis of Case Examples of "Protesting with a Corpse" in Contemporary China)(Chenjun You)" " " " : ( ) 1980 ( ) : / ( ) " " ( ) " " ( ) " " " " Part Three: The System of "Turning Oneself In" in Criminal Justice9. The System of "Turning Oneself In" in Qing and Contemporary China: Some Reflections on Legal ModernismZhengyang JiangIndigenous Characteristics and ContinuityChanges in the SystemChanges in the Conception of Legal SubjectChanges in the Evaluation of MotiveChanges in Terms of to Whom One Could Turn Oneself InChanges in the Outcome of Turning Oneself InReflections on ModernismRational FormalismInstrumental RationalityIndividualismPart Four: Administration and Law10. Centralized-Minimalist Government: The Lake Weishan Issue and the Chinese Mediatory System of GovernmentLei TianThe Lake Weishan Issue: BackgroundHow the Policy of the Central Government Was ThwartedA Working Group is Sent to the Lake AreaThe Inter-Ministerial Report and Its PlanThe Xuzhou MeetingA ReviewHow the Central Government Worked Out a DecisionCui Naifu's Little Solution PlanWherever There's Trouble, Give It to ShandongThe Central Government Drops the GavelWhy THREE Documents?Centralized-Minimalist GovernmentThe Structure of Centralized AuthorityThe Daily Model of Minimalist GovernancePart Five: International Law11. Sovereignty and "Civilization": International Law and East Asia in the Nineteenth Century Junnan Lai"International Society" in Nineteenth-Century International Law"Civilization"PositivismDifferent Responses of China and JapanChina: "The Just Law of All Nations"Japan: Bunmei kaikaThe First Sino-Japanese War: "Civilization" and "Barbarism"Japan: A Warpath toward "Civilization"Japan: A Big ShowChina: A Feeble VoiceThe West: Evaluating StudentsJapan: Earning a High ScoreChina: Flunking OutConclusionPart Six: Theoretical Explorations12. - (Using the "Logic of Practice" to Explicate "Symbolic Capital" - Based on the Multiple Faces and Uses of Symbolic Capital)(Haixia Wang)( ) ( ) ( ) ( ) ( ) ( ) 13. Reconstructing Max Weber's "Sociology of Law": The Power of Idealism and the Limits of Objectivity Junnan LaiReconstructing Concepts: "Form/Substance"The Categories of "Legal Thinking""Substantive Rationality"The Power of Dualism: Form/Materie"The Anti-Formal Tendencies in Modern Legal Development"Reconstructing the Theses: Law and CapitalismWeber's HypothesesWeber's Anxiety and DecisionA Reconstruction of the Relation between Law, Capitalism, and "Rationality"Conclusion
