The Enigma of Civil Justice in Imperial China: A Legal Historical Enquiry

Abstract

This article seeks to reveal the true nature of civil justice in China's imperial history. Developing on the ground-breaking findings of Huang, the author argues that China's imperial civil justice was neither ‘Kadi’ justice nor an elaborate form of civil justice based on Weberian formalism and procedural sophistication. Contrary to the view that the magistrate was unrestrained by the law and only played the role of a mediator, state law had profound influence over magisterial adjudication. Yet the magistrate did not apply the law in a positivist sense. The adjudicative discourse involved searching for a balanced solution that took into account the statutory law and non-statutory norms (local customs and Confucian moral values). However, civil justice in imperial China lacked fundamental attributes of a modern civil justice system, such as judicial specialization, an autonomous (and sophisticated) civil procedural regime and a systemic enforcement of civil law based on the jurisprudential understanding of individual rights. This article questions the benefit of straightjacket Weberian categorizations and argues that the true nature of China's imperial civil justice could only be revealed by considering the country's unique historical circumstances.