“Precedent” in the Narrative of Chinese Legal History

摘要

“”“” :   The traditional way of describing the history of Chinese law, i.e., fitting Chinese historical materials into the basic framework of the Western conceptual system needs to be thoroughly reconsidered. “Precedent” or “” (panli), which has attracted academic attention both in China and abroad, can serve as an example in this regard. The concept “,” which may have originated from Japanese kanji in the nineteenth century, was used to translate its Western counterpart. A review of the historical and modern practice of the Western European countries of England and France shows that precedent has always played an important role in achieving consensus in the legal community and guiding future rulings by means of case law. This function, which has something in common with the relevant portions of ancient Chinese legal institutions, can serve as a foundation for constructing a universal theoretical system. At the same time, the relevant Chinese institutions had specific institutional contexts and functions. By combining universal and specific functional analysis, “two‐way functionalism” may be able to avoid the Western‐centric approach and futile conceptual discrimination and turn towards the exploration and elucidation of functional issues, so as to eventually establish a new framework for the narrative of Chinese legal history.View full textDownload full textKeywordsmethodology of the science of legal history, precedent, functionalismRelated var addthis_config = { ui_cobrand: "Taylor & Francis Online", services_compact: "citeulike,netvibes,twitter,technorati,delicious,linkedin,facebook,stumbleupon,digg,google,more", pubid: "ra-4dff56cd6bb1830b" }; Add to shortlist Link Permalink http://dx.doi.org/10.1080/02529203.2011.573291