Civil Adjudication in China,Past and Present

Abstract

Qing and post-1949 Chinese courts adjudicated civil disputes far more than Confucian or Maoist representations or formalist-modernist expectations might lead us to expect. Qing law placed the moral ideals of societal mediation and no litigation in the foreground but then included many practical provisions that diverged from those to guide adjudication. Contemporary Chinese law, similarly, has emphasized the ideal of mediation, and in the reform era also imported formalist rights principles but included practical provisions that diverged from those. Case records from both periods show that the courts adjudicated readily. Such an approach to law, which may be termed “practical moralism,” is predicated on a persistent mode of legal reasoning that gives priority to fact situations and practical reality even while emphasizing moral ideals. It is predicated on an epistemological method that goes from fact to principle back to fact/practice, which may be contrasted sharply with the legal formalism of the Continental tradition of modern Western law.