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Preface to the
Volume “Comparative Legal History in the Asian Context” and Overview of This
Issue's Contents.
Asian Journal of Law and
Society Vol. 11 No. 3 (2024)
Preface
to the Volume: "Comparative Legal History in the Asian Context"
Taisu ZAHNG
Professor at Yale Law School, editorial board member of the Asian
Journal of Law and Society, and guest editor of this volume.
Legal history research has always faced a
dilemma of identity. As an interdisciplinary field that bridges legal studies
and historical research, it naturally integrates the characteristics of both
domains: it inherits the archival investigation and source analysis traditions
of history while also adopting the analytical approach of law that centers on legal
functions and meanings. What further complicates the issue is that, over the
past few decades, the dominant trend in legal history research has clearly
shifted toward interdisciplinary engagement with the social sciences. The
theories and methods from sociology, political science, economics, and critical
theory have played significant roles in shaping the framework of historical
research conducted by legal scholars. As a result, legal history has become one
of the most interdisciplinary areas within historical research—a nexus where
multiple knowledge traditions overlap and interact. On one hand, this
interdisciplinary nature is intellectually stimulating and rich in content; on
the other, it makes it difficult for legal history to clearly define its core
paradigms and disciplinary boundaries. Of course, what binds this field
together is a shared concern for law and legal institutions, yet beyond that,
it still exhibits a perplexing multidimensionality.
At the same time, comparative analysis
across time and space has emerged as an important theme in legal history
research over recent decades. This trend is partly due to the relatively
normative character of law and its institutional forms. The core concept that
“law is the formal rule promulgated by the state” endows law with a degree of
commonality even in vastly different historical contexts. Although the Han
Dynasty in China and the Roman Empire share little in common on the social or
political level, their laws exhibit certain similarities in both function and
form, making the comparative study of Han legal codes and Roman law intuitively
accessible. Excellent comparative analysis generally requires that the subjects
of comparison possess sufficient commonalities so that their differences become
analytically meaningful. The relatively standardized form of law inherently
provides such common ground—perhaps even more effectively than many other core
concepts in socio-political analysis, such as state, society, economy, or
religion.
The collection of papers in this legal
history volume fully embodies these characteristics. On one hand, these papers
delve deeply into issues, methodologies, and intellectual frameworks rooted in
historical materials—extending far beyond their immediate cognitive boundaries.
When these papers attempt to define the connotations of legal knowledge,
understand the socio-political functions of freedom of speech, or engage in
comparative reflection on supervisory and inspection functions, they are
compelled to adopt conceptual frameworks and theoretical models borrowed from
external disciplines and graft them onto historical materials. This notable
connection with external theories distinguishes nearly all of these articles
from those published in most purely historical journals, even though the
external theories they invoke differ markedly from one another.
On the other hand, most of the papers in
this volume also display prominent characteristics of comparative
research—whether by comparing judicial jurisdiction systems in different
regions or by undertaking diachronic comparisons within the same judicial
system. In both cases, researchers must use the similarities of law and legal
institutions across all comparative groups as the anchor for comparison. In
some instances, this similarity is formal, stemming from the continuity of
law’s form over time, even if its socio-political function has changed. In
other cases, particularly in cross-regional comparisons, the similarity is
inherently functional and serves as the basis for comparing and contrasting
other functional attributes.
Consequently, this volume largely captures
the methodological diversity and breadth of comparative research inherent to
the field of legal history. This design is intentional: as co-editors of this
volume, Chen Li and the undersigned sought to present a slice of legal history
research centered on China or East Asia, thereby reflecting the broader
characteristics of the field. The question then becomes whether these papers
can still “coalesce into a whole” in an intellectual sense—enabling readers to
gain more from the volume as an integrated collection than they would from
reading each paper individually.
We believe the answer is affirmative. What
binds these papers together is not merely their shared interest in East Asia
(or China) or their common concern for law. In particular, the latter has
forged analytical connections among the articles that the authors may not have
originally anticipated. For instance, any study of judicial practice or the
legal profession inevitably relies on certain assumptions about the state’s
general role in local affairs, assumptions which in turn depend on how the
state monitors and regulates local actors. Without simultaneously presupposing
a particular model of political expression and judicial enforcement, research
on freedom of speech or public health law would be difficult to sustain.
Likewise, studies on political customs and social norms related to law must
also explore the expressive function of law and how it is received by society.
The interrelated nature of these issues does not differ greatly across time and
space: they all revolve, in an abstract yet shared manner, around the core
institutions of the state—even if the state’s form and function may differ
fundamentally, as exemplified by the Roman Empire and China’s Qing Dynasty.
In fact, it is precisely the significant
substantive differences in research themes presented in this volume that truly
highlight the unavoidable analytical links. These links bind the papers together
tightly and thereby define legal history as a distinct research field. A
thematic study spanning approximately two thousand years and crossing judicial
jurisdictions on three continents still manages, almost coincidentally, to
touch upon interrelated issues such as state expression, institutional
function, principal-agent problems, and social acceptance.
All of this perhaps suggests that, on an
analytical level, “law” is a concept far weightier than “the formal rules
promulgated by the state.” In other words, the concept of “the formal rules
promulgated by the state” is itself sufficiently weighty and complex in its
function to constitute an independent realm of cognition, even though the
direct tools scholars use to study it already encompass the entire gamut of the
social sciences. Therefore, legal history research must necessarily be both a
study of law and a study of history, inheriting all the analytical
characteristics and rich connotations of legal studies. Simply regarding it as
a subfield of history is inadequate. On the contrary, much like legal studies
in the broad sense, legal history belongs to that “connecting domain” which, by
its very nature, rejects disciplinary purity.
《亚洲法与社会杂志》2024年第3期内容摘要
01 研究论文
1. In
Response to Constitutional Crisis: The Latent Carl Schmitt in Zhang Junmai’s
Political Thought
Dandan Chen
Abstract: This paper examines two responses to the global constitutional crises in the
twentieth century, with a focus on a comparison between Carl Schmitt, a
notorious German political theorist and critic of liberal constitutionalism and
Zhang Junmai, a constitutionalist in Republican China. After the First World
War, both Germany and China experienced constitutional crises, which prompted
critical reflections among intellectuals. My paper is the first to discover and
examine the latent element of Carl Schmitt in Zhang Junmai’s acceptance of the
Weimar Constitution. My research shows that Zhang’s 1930 article, “Hugo Preuss
(Author of the New German Constitution), His Concept of the State and His
Position in the History of German Political Theory” (德國新憲起草者柏呂斯之國家觀念及其在德國政治學說史上之地位) is
his Chinese translation of Carl Schmitt’s 1930 article, “Hugo Preuss: His
Concept of the State and His Position in German State Theory” (“Hugo Preuss:
Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre”). Instead
of simply regarding Zhang’s writing as plagiarism, my paper interrogates the
gaps between Carl Schmitt’s original text and Zhang’s translation. By examining
the intertextual relation between Carl Schmitt and Zhang Junmai, this paper
reveals a latent aspect of the spectrum of Constitutionalism in the twentieth
century and shows a special dialogue between a German critic of constitutionalism
and a Chinese constitutionalist.
Keywords: internal politics, external
politics, concept of the political, Rechtsstaat, neutral state
2. Concretising
the Legal Professional Community in Late Imperial China, c. 1700–1900
Li Chen
Abstract: This
article examines the empire-wide legal professional community that emerged for
the first time in Chinese history during the Qing period (1644–1911). By
analyzing a wide range of archival records and primary sources, this study
provides valuable insights into the dynamic configurations of late imperial
China’s legal culture and juridical field, as well as the thousands of legal
specialists who shaped them. The findings challenge much of the received wisdom
about late imperial China, which has too often been assumed as a Confucian
society that discouraged the use of law and legal expertise and was therefore
unlikely to have witnessed so many Confucian literati becoming legal
specialists, both within and outside the judicial system.
Keywords: Qing
law, legal culture, juridical field, legal professionals, Chinese legal
tradition
3. Interrogating the Drunkards and
Representing Drunkenness in the Qing Law
Abstract: The consumption of shaojiu or distilled liquor played a significant role in Qing legal culture and contributed
to a rise in alcohol-related crimes. Qing officials’ attitudes towards
intoxication not only influenced their judgments on many cases, but also
reflected important trends of popular beliefs, notions, and practices that
constituted shared knowledge and feelings between ordinary people and judges.
This paper examines the transformation of Qing judicial practices and concerns
regarding alcohol intoxication and crimes, arguing that specific cultural value
and ideas that underpinned the public configuration of drinking behaviour
during the Qing period contributed to a social pathology around intoxication.
Due to the lack of a consistent interpretation of the effects of alcohol on the
mind, early Qing officials tended to be lenient towards intoxicated offenders.
However, mid-Qing law-makers and rulers recognized the serious administrative
concerns associated with heavy drinking and began to conceptualize it as a
serious social problem.
Keywords: intoxication; mens rea; alcohol; judicial
practice; Qing Dynasty
4. The Sale of Offices, Corruption, and Formalization: A
Comparative Study of China and France in the Seventeenth and Eighteenth
Centuries
Xinyu Huang
Abstract：This paper provides a detailed exploration of the sale of offices in
China and France in the seventeenth and eighteenth centuries. In France, the
sale of offices became deeply integrated into the officialdom, effectively
serving as a formal institution. It was a part of the financial framework and
contributed to the operation of the bureaucracy. However, this practice led to
public dissatisfaction due to concerns about the fairness of the judicial
system. Conversely, in China, the sale of offices was less formalized and more
directly associated with corruption due to the close connection with informal
income and the challenge to the formal system of imperial civil examinations.
It was considered an ad hoc, informal, and pragmatic solution to financial
emergencies. The sale of offices, in a different context, was seen as having
both positive and negative aspects, with its impact varying, depending on the
specific function it served.
Keywords: sale of offices, corruption, formalization,
China, France
5. Adultery
Law and State Power in Early Empires: China and Rome Compared
Yunxin Li
Abstract：As ancient China and Rome transformed into empires, both states showed an
increasing interest in regulating family ethics
and individuals` sexuality. Using excavated documents and transmitted texts,
this article compares legal statutes and practices against illicit consensual
sex in early imperial China (221 BCE–220 CE) with those in the
Roman empire. On the one hand, both legal systems aimed at consolidating social
hierarchies based on gender, status, and generation. On the other, the Roman
and Chinese statutes had different emphases due to their respective political,
social, and cultural contexts, and the actual penalties for adultery and incest
differed significantly from those prescribed in the statutes. In both empires,
control over individuals` sexuality facilitated state power`s penetration into
the family during empire-building, giving rise to laws in areas that had been
largely left to customs and individual will.
Keywords: early China, Rome, law, adultery, incest, sexuality
6. Obligation,
Informed Consent, and Health-Care Reforms in China
Jia Liu
Abstract: Drawing on recent jurisprudential literature that emphasizes the role and
function performed by obligation, this article examines how the ethical
doctrine of informed consent has been implemented in the context of health-care
reforms in China. It argues that, while the Chinese incorporation of informed
consent has sought to empower patients, the major medical laws and social
policies fail to instantiate the obligations. Along with this failure, the
Chinese medical laws have also failed to secure the bond of trust between them.
This article also points out that a rounded analysis of the implementation of
informed consent in China must take into account the obligation and function of
the major components of the health-care delivery system other than physicians
and hospitals, such as health-care insurance schemes.
Keywords: obligation,
informed consent, medical law, health-care reform, China
7. Re-cloistered
Feminine Space: Chinese Women’s Prison in Shanghai, 1888–1912
Chaoran Ma
Abstract：This
article examines China’s first women’s prison in the context of diplomatic
disputes, legal reforms, and gender order at the turn of the twentieth century.
It shows that the custody of female offenders in the Shanghai International
Settlement became a battleground in which the interests and perceptions of late
imperial China and the Western authorities clashed. Under pressure from the Western
authorities, the first Chinese women’s prison was established in 1907, even
prior to the formal introduction of custodial sentences into China’s criminal
code. Notably, the Chinese officials did not embrace prison as a more
benevolent punitive institution; rather, they saw it more as a tool to
consolidate its judicial sovereignty and preserve gender norms. For Chinese
women, the prison, functioning as a re-cloistered feminine space, further
entrenched the confinement of their bodies, thereby perpetuating rather than
changing orthodox values of female chastity. This article questions the
universal modernity of European penalties by pointing out that the introduction
of imprisonment as a supposedly more civilized and humane form of punishment
may have placed Chinese women at a greater disadvantage.
Keywords: women’s prison, diplomatic dispute, legal reform,
gender order, modern China
8. Ideological and
Cultural Policy as Speech Policy: An Overlooked Aspect of Free Speech in China
(1940s–2000s)
Yilu Zuo
Abstract: Free speech scholars have been preoccupied
with laws, regulations, judicial opinions, and other traditional “legal”
materials. However, this article examines an often-overlooked object in at
least studying China’s speech rights—the ideological and cultural policy of the
party-state. The party-state’s ideological and cultural policy has not only,
for better or worse, profoundly shaped speech rights in China; and more
significantly and paradoxically, it also contains the seed that might promote
China’s speech rights in the future. The party-state has had a long and
deep-rooted tradition of promoting a democratic culture; by tracing the
development of this tradition from the 1940s to the 2000s, this article argues
that it may provide a new context and angle for thinking about people’s right to
cultural construction and perhaps free speech in general in China.
Keywords: free speech, ideological and cultural policy, speech policy, Chinese
Constitution, cultural construction
The Japanese Imperial Monarchy as an Icon
of Sociopolitical Signification - Japan’s Imperial House in the Postwar Era,
1945−2019.
By Kenneth J. Ruoff. Cambridge, MA:
Harvard University Asia Center, 2020, 419 pp. Hardcover $32.00
Kenneth J. Ruoff
Prostitution as the Critical Gendered
Paradox across Law, Society, and the State - The Regulation of Prostitution in
China: Law in the Everyday Lives of Sex Workers, Police Officers, and Public
Health Officials.
By Margaret Boittin. Cambridge, UK: Cambridge
University Press, 2024. 444pp. Hardcover: $135.00
Margaret
Boittin
Positionality in International
Socio-Legal Scholarship - Out of Place: Fieldwork and Positionality in Law and
Society.
By Lynette J. Chua and Mark Fathi
Massoud. Cambridge, UK: Cambridge University Press, 2024. 213pp. Hardcover:
$97.00
Lynette J. Chua and Mark Fathi Massoud
https://www.cambridge.org/core/journals/asian-journal-of-law-and-society/article/foreword/8D5442037964FAB606ED261057193E26
https://www.cambridge.org/core/journals/asian-journal-of-law-and-society/latest-issue
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