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Another Justice - Litigation Masters in the Chinese Legal Story
Högskolan Dalarna, Akademin Humaniora och medier, Kinesiska.
2017 (engelsk)Inngår i: Ming Qing Yanjiu, ISSN 1724-8574, Vol. 20, nr 1, s. 165-191Artikkel i tidsskrift, Editorial material (Fagfellevurdert) Published
Abstract [en]

Ronald Dworkin offered the legal theory which is known as a “chain enterprise”. According to this theory, throughout history, judges have, collectively, created a “law” that was designed to fulfil a specific purpose. Those judges can be seen as co-authors who, together, develop a chain-story. As such they not only create freely but also are constrained by the story made by authors, in this case judges, who have come before them. The law created by Chinese traditional judges is another case: compared with the judges mentioned by Ronald Dworkin, they have relatively narrower parameters of discretion in which they may implement a legal sentence. The limited amount of discretion available to an individual judge is due to the way in which, traditionally, the legal framework has been designed. The fact that traditional Chinese law was first conceived of as a penal code leaves little room for a judge to subjectively interpret a statute. Furthermore, because law is representative of the authority of the government, i.e. the emperor, any misinterpretation will be considered as a challenge to the supreme power. Conversely, while judges are bound by restrictive parameters with regard to the interpretation of the law, a Chinese litigation master (Songshi) who wishes to receive a favorable outcome for his client must be willing to challenge a judge’s narrow interpretation of the law. Conversely, while judges are bound by restrictive parameters with regard to the interpretation of the law, a Songshi who wishes to receive a favorable outcome for his client must be willing to challenge a judge’s narrow interpretation of the law. According to Stanley Fish’s articles that question Ronald Dworkin and Owen Fiss’ ideas about law, Fish construes that, since law is made of language, law is open to interpretations that cannot be constrained by any rules or any particular legal purposes. Stanley Fish’s idea can also be applied to the analysis of the stories of Songshi in traditional Chinese literature. The legal opinions of Songshi in traditional Chinese literature can be regarded as an unexpected event that calls for revision of the standardized concept of law propagated in legal stories. Although they are not welcome, neither by the officials and nor by society, their existence is still a phenomenon representing another version of justice different from the standardized concept of justice and can be seen as a de-structural power to the government. Hence, in this present paper the language and strategy applied by Songshi in Chinese legal stories will be analysed to see how they refute legal judgments and challenge the standardized concept of justice.

sted, utgiver, år, opplag, sider
2017. Vol. 20, nr 1, s. 165-191
Emneord [en]
justice; Qing dynasty; legal history; Songshi
HSV kategori
Forskningsprogram
Interkulturella studier
Identifikatorer
URN: urn:nbn:se:du-23402DOI: 10.1163/24684791-12340008OAI: oai:DiVA.org:du-23402DiVA, id: diva2:1047381
Tilgjengelig fra: 2016-11-17 Laget: 2016-11-17 Sist oppdatert: 2017-11-20bibliografisk kontrollert

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