British Academy: The UK's National Academy for the Humanities and Social Sciences
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BA PDF Symposium 200526 April 2005 AbstractsDr Linxia LiangCivil Trials at the Magistrate's Court in the Late Qing ChinaImperial China has often served as a negative example of failing to develop a stronger institutional base for the Rule of Law. Conversely, it has been praised for avoiding excessive reliance on law. Based on some first hand magistrate's court records, I argue that the establishment of relevant law on both procedural and substantial issues was systematised in the Qing logic in the sense that the court was enabled to solve civil disputes consistently and the petitioner was enabled to seek help from the institution. Usually the Qing court made decisions through the required procedure by following the law on the ground of evidence. In some aspects when there was a gap between the law and the case, the court enjoyed a significant discretion to apply the real meaning or the principle of the law. Although the Confucians preference for no-litigation society was still advocated, as an ideal, it was thought to be achieved through the fair and efficient trials. Some famous magistrates even alleged in their handbooks that they had achieved such a goal in that there was no appeal ever made to a higher authority from the decisions they made. In this sense, we may say, the true essence of Confucius’s ideal had passed on to them. Dr Linxia Liang joined the Law School of the University of Aberdeen in 2002 as a British Academy Postdoctoral Fellow. She has been a lecturer in National Training Centre for Senior Judges of China and visited the London School of Economics from 1994 to 1995 before she came to Aberdeen to study for her PhD. She is currently working on her book entitled Delivering Justice - Civil procedure at the magistrates' court in the Qing (1644–1911) which will be published by the British Academy. |