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IHarbour Lectures(12):Confucian Legal Tradition: China’s Discourse for the Rule of Law

日期: 2019-04-01 点击:

Speaker:Aisi Zhang


The lecture is titled “Confucian Legal Tradition: China’s Discourse for the Rule of Law”. Many people view 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. However, this is not so. This lecture is going to focus on three different historical stages: Pre-Qin era, Han Dynasty, and Han-Tang transition. In Pre-Qin era, Chinese case law emerged, which is called as panwen. Panwen can show us how much ancient Chinese government officials actually valued legal reasoning, using the law to solve social problems, and careful application of law to facts of cases. In the Han Dynasty, a specific text, the Spring and Autumn Annals, became an important source of law from which legal rules were deduced, most notably reflected in the panwen of Dong Zhongshu. This fascinating and extremely important judicial practice of utilizing the Spring and Autumn Annals is known as the Chunqiu Jueyu. Dong authored a text of 232 panwen of hypothetical cases with fact patterns and judgments. It can be found that Dong was not trying to inject more subjectivity in judicial proceedings in order to give more flexibility and authority to judges or to the government. Rather, Dong was arguably trying to systematize application of law. In the period of the Han-Tang transition, Liu Song, who was an official served during the Western Jin Dynasty, wrote a famous memorial on adjudication to Emperor Hui. On a broader level, Liu’s theory on adjudication is arguably unique in that it runs counter to the so-called “qing, li, fa” (QLF) adjudicative theory and approach in traditional China.