The history and theory of legal practice in China : toward a historical-social jurisprudence

著者

• Huang, Philip C.
• Bernhardt, Kathryn

書誌事項

The history and theory of legal practice in China : toward a historical-social jurisprudence

edited by Philip C.C. Huang and Kathryn Bernhardt

（The social sciences of practice : the history and theory of legal practice, v. 3）

Brill, c2014

• : hardback

注記

Includes bibliographical references

内容説明・目次

内容説明

The History and Theory of Legal Practice in China: Toward a Historical-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.

目次

Author Biographies Series Foreword Editor's Introduction Philip C. C. Huang Part One: Women and the Law 1. A Ming-Qing Transition in Chinese Women's History? The Perspective from Law Kathryn Bernhardt Scholarship on Women in the Late Ming and Qing The Ming-Qing Present The Past The Future The Perspective from Law Betrothal Marriage Divorce Property The Peasantization of Law 2. Women's Choices under the Law: Marriage, Divorce, and Illicit Sex in the Qing and the Republic Philip C. C. Huang Part 1: The Qing The Legal Categories and Pertinent Laws Qing Constructions Variant Concepts in Legal and Social Practice Women as Victims The Burdens of Passive Agency Part 2: The Republic Women's Agency in Guomindang Law Women's Agency in Practice 3. Marriage, Law, and Revolution: Divorce Law Practice in the Shaan-Gan-Ning Border Region Liu Yang Evolution of Marriage Legislation Divorce Suits in the Context of Revolution Women in Divorce Litigation Kangshu Gongjiaren Peasant Women Peasant Husbands in Divorce Litigation Tiaobo and Peimi A Peasant Husband Battles to Save His Marriage Conclusion 4. : (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 Present Fenghua Jing Research 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 Practice Private Settlement before the State Was Aware of the Matter Private Settlement after the State Was Aware of the Matter Changes in the Modern Conception of Illicit Sex Crimes A Substantive Split in "Privately Settling Illicit Sex Offenses" Rape Cases and Public Prosecution Private Settlement of Rape Cases under the Public Prosecution System Private Settlement in the Absence of Prosecution Withdrawing a Complaint Rape and Complaint by the Victim Herself Part Two: Custom, Mediation, and Law 6. Between Informal Mediation and Formal Adjudication: The Third Realm of Qing Civil Justice Philip C. C. Huang Three Stages in a Qing Lawsuit The Initial Stage The Middle Stage Resolution in the Middle Stage The Final Stage: The Court Session Justice in the Third Realm The Court as Catalyst Prompting a Settlement The Role of Court Opinion The Xiangbao Sources of Abuse in the Third Realm Xiangbao Power and Abuse Runner Power and Abuse Formal, Informal, and Third-Realm Justice State and Society Seen through the Judicial Process 7. " " " " ("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 Justice 9. The System of "Turning Oneself In" in Qing and Contemporary China: Some Reflections on Legal Modernism Zhengyang Jiang Indigenous Characteristics and Continuity Changes in the System Changes in the Conception of Legal Subject Changes in the Evaluation of Motive Changes in Terms of to Whom One Could Turn Oneself In Changes in the Outcome of Turning Oneself In Reflections on Modernism Rational Formalism Instrumental Rationality Individualism Part Four: Administration and Law 10. Centralized-Minimalist Government: The Lake Weishan Issue and the Chinese Mediatory System of Government Lei Tian The Lake Weishan Issue: Background How the Policy of the Central Government Was Thwarted A Working Group is Sent to the Lake Area The Inter-Ministerial Report and Its Plan The Xuzhou Meeting A Review How the Central Government Worked Out a Decision Cui Naifu's Little Solution Plan Wherever There's Trouble, Give It to Shandong The Central Government Drops the Gavel Why THREE Documents? Centralized-Minimalist Government The Structure of Centralized Authority The Daily Model of Minimalist Governance Part Five: International Law 11. Sovereignty and "Civilization": International Law and East Asia in the Nineteenth Century Junnan Lai "International Society" in Nineteenth-Century International Law "Civilization" Positivism Different Responses of China and Japan China: "The Just Law of All Nations" Japan: Bunmei kaika The First Sino-Japanese War: "Civilization" and "Barbarism" Japan: A Warpath toward "Civilization" Japan: A Big Show China: A Feeble Voice The West: Evaluating Students Japan: Earning a High Score China: Flunking Out Conclusion Part Six: Theoretical Explorations 12. - (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 Lai Reconstructing 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 Capitalism Weber's Hypotheses Weber's Anxiety and Decision A Reconstruction of the Relation between Law, Capitalism, and "Rationality" Conclusion

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詳細情報

• NII書誌ID(NCID): BB1726569X
• ISBN:
  • 9789004276437
• LCCN: 2014012708
• 出版国コード: ne
• タイトル言語コード: eng
• 本文言語コード: engchi
• 出版地: Leiden
• ページ数/冊数: xvi, 440 p.
• 大きさ: 25 cm
• 分類:
  • LCC : KNN122
  • DC23 : 349.51
• 件名:
  • LCSH : Law -- China -- History
  • LCSH : Jurisprudence -- China -- history
  • LCSH : Justice, Administration of -- China -- History
• 親書誌ID:
  • BB16326493