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Law, Custom, and Social Norms: Civil Adjudications in Qing and Republican China

Published online by Cambridge University Press:  10 December 2017

Xiaoqun Xu
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Abstract

This study examines how law, custom, and social norm interacted in civil justice in Qing and Republican China by looking into 152 civil cases tried in 1912, right after the founding of the Republic of China, and a body of legal interpretations from the Supreme Court during 1912-1929, and certain provisions in the Civil Code of 1929-30--the very first one in Chinese history. It shows that both law and custom were invoked by judges within their moral universe or social norm. It traces how the Supreme Court allowed local customs to be a legal ground for rulings in certain civil disputes, and which customs in civil matters in the Qing and the early Republic were, and which were not, “hardened” into the Civil Code. The interplay between law and custom, mediated by judges with their normative sense of right and wrong, constituted both continuity and change in civil justice between the Qing era and the Republican period. Ultimately, the issues addressed here speak to a larger question of how Chinese jurists, within their judicial discretions, tried to strike a difficult but necessary balance between “law-on-books” and “law-in-action,” while law on the books was undergoing important revisions.

Type
Original Article
Information
Law and History Review , Volume 36 , Issue 1 , February 2018 , pp. 77 - 104
Copyright
Copyright © the American Society for Legal History, Inc. 2017 

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Footnotes

He wishes to thank the journal's two anonymous reviewers for their helpful comments and suggestions on the earlier versions of the article.

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