The history and theory of legal practice in China : toward a historical-social jurisprudence
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Bibliographic Information
The history and theory of legal practice in China : toward a historical-social jurisprudence
(The social sciences of practice : the history and theory of legal practice, v. 3)
Brill, c2014
- : hardback
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Includes bibliographical references
Description and Table of Contents
Description
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.
Table of Contents
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)
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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)
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8. : (Extralegal Origins of the Dangers of a Corpse: An Analysis of Case Examples of "Protesting with a Corpse" in Contemporary China)
(Chenjun You)
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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)
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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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