Equitable Justice And The Traditional Chinese Legal Order

On examining the judicature from the viewpoint of legal culture, this dissertation tends to tell the basic spirit of justice in ancient China. It explores the system for solving disputes, and makes an extensive and deep research in all kinds of legal cases, official documents, records and files, through which, we could learn the actual legal order in our traditional society. This dissertation offers a notion for the study of the traditional Chinese judicature. This notion is "Heng-Ping", which has the some similar meaning as "equity" in English law. But this dissertation regards that "Heng-Ping" is the core of judicial principles in ancient China. This principle was followed by almost all judges.In ancient China, the judicature preferred restoring social order, which included harmonies between individuals, society, and government, to protecting private rights. Thus, although "Heng-Ping" had some similar meaning as "equity" in England, it originated in native China, not overseas.What is "Heng-Ping"? In short, "Heng-Ping" in Chinese Society is the proper solutions given by judges, who were usually dominated by universal law, state laws, common emotions, customs and other realistic or rational needs, i.e.. The judges would measure all kinds of condition and balance all different benefits, before they can make their decision more acceptable for parties, society and government.Usually the consequence of "Heng-Ping" adjudication was that the state written laws were shunned, but from it came the harmony and peace. In other words, "Heng-Ping" is the lubricating oil for the cooperation between law and ethics, and played an important role in keeping legal order in traditional society.Besides introduction and conclusion, the dissertation includes 6 parts:Part 1 makes a comparison between ancient China and western Europe in the understanding of judicature, points out the features of traditional judicature of China and centres on the historical and cultural environment where "Heng-Ping" emerged.Part 2 analyzes lots of civil and criminal cases form traditional society, demonstrates the operation of "Heng-Ping" .Part 3 deals with the values and spirits behind "Heng-Ping".Part 4 examines the methods and logic judges used to reach "Heng-Ping". This part makes a similar penetrating analysis of "equity" in England simultaneously.Part 5 checks "Heng-Ping" against "equity" from various angles, summarizes the similarities and differences between them, and making it clear that "Heng-Ping" had its own special value in safeguarding order and peace in our traditional society.In part 6, the dissertation studys difficulties which "Heng-Ping" faced, pointing out that those problems held back the realization of "Heng-Ping", thwarted the operation of law, which led to serious damages in legal order. What caused those problems? the author says that they are due to bureaucratic politics and pan-moralism in our traditional culture.