Equitable Justice and Chinese Traditional Legal Order

Author: Gu Yuan
Publisher:
Publish Date: 2006-01-01
Features: This book attempts to stand on the basis of legal culture, comprehensively applying multidisciplinary research methods. Through dynamic judicial case analysis and cultural reflection, it studies the fundamental concepts and institutional operations of traditional Chinese justice, explores the characteristics of traditional dispute resolution mechanisms and their value pursuits, and aims to reveal the true state of traditional Chinese legal order reflected through "equity" justice. This will provide useful references and insights for modern Chinese judicial reform and legal system construction. This topic undoubtedly has rich academic value and theoretical significance. The author believes that the models of judicial officials in traditional Chinese society regarding the cognition and handling of disputes are highly unique: they view and resolve practical disputes (especially civil disputes) with the fundamental focus of establishing or restoring stable and harmonious interpersonal and social relationships. From the perspective of these judicial officials, the key is to resolve disputes, rather than attempting to establish a set of rules aimed at influencing the future behavior of parties and others through specific dispute resolution. Under this dispute cognition context, the value judgment of judicial officials is supported by the concept and spirit of "equity." Although the concept of "equity" shares some common meanings with the English common law, it is not an external term, especially as its universal meaning is entirely rooted in localization. The concept of "equity" can serve as an important tool for exploring and studying the internal logic and meaning structure of traditional Chinese judicial culture. Using it to describe the concepts and operations of ancient Chinese justice and the true picture of the entire social legal order is quite appropriate. The research in this book is based on the concept of "equity" as the fundamental theoretical starting point, with the theme of "equity justice." In short, "equity" in traditional Chinese justice refers to the appropriate handling of cases by judicial officials under the influence and comprehensive consideration of factors such as the principle of heaven, national law, human feelings, customs, etc., resulting in a resolution that meets the needs of practical rationality. The outcome often involves a "technical" circumvention of national statutory legal rules. The so-called "equity justice" is essentially the process by which judicial officials weigh all the social conditions they face to the greatest extent possible, making judgments that can achieve harmony and balance. Equity justice serves as a lubricant for the effective operation of law and morality in a Chinese rule-of-man society, playing a crucial role in constructing and maintaining the legal order of traditional society. In addition to the introduction and conclusion, the main body of this book is divided into six chapters, with the main content being as follows:
Chapter 1: The Nature of Traditional Chinese Justice and the Emergence of Equity Justice. Based on a brief analysis of the concept of "justice" since modern times and the development of justice in pre-modern Europe, this chapter summarizes the characteristics of traditional Chinese justice, focusing on the historical and cultural background of the emergence of equity justice in traditional Chinese society and its practical significance.
Chapter 2: Case Studies: The Manifestation of Equity Justice in Practice. Through the analysis of judicial cases from ancient times, particularly the Qing Dynasty, this chapter illustrates the specific application and manifestation of equity justice in criminal and civil cases.
Chapter 3: The Value Orientation of Equity Justice. This chapter analyzes the underlying basic value concepts of equity justice from aspects such as human feelings, the pursuit of no disputes, etiquette and righteousness, benevolence, impartiality, public service, and the natural and Daoist worldview.
Chapter 4: The Means of Equity Justice—Judicial Techniques and Logical Application. By studying the use of judicial techniques and logical reasoning by judicial officials, this chapter reveals the technical means by which equity justice is achieved. At the same time, it conducts a comparative analysis of the use of techniques and logic in English case law.
Chapter 5: Traditional Chinese Equity Justice and English Equity Law. This chapter attempts to compare traditional Chinese society's equity justice with English equity law from historical development, philosophical foundations, value concepts, dispute cognition and handling styles, as well as the legal profession, thereby elucidating the similarities and differences between the two and their underlying reasons, demonstrating that the judicial and adjudication in traditional China were unique ways of constructing social order with their own intrinsic value.
Chapter 6: Absence and Decline: The Paradox of Equity and the Dilemma of Traditional Justice. The widespread judicial evils such as corruption, torture, and the abuse of power by petty officials in traditional society not only hinder the realization of true equity social effects but also lead to consequences that obstruct the normal operation of law and disrupt legal order. The general absence of judicial equity is deeply intertwined with China's profound bureaucratic political background and the profound influence of its pan-moralistic cultural tradition.