Max Weber's traditional Chinese law revisited: A poly-contextuality in the sociology of law

Duan Lin, Po Fang Tsai

研究成果: 雜誌貢獻文章

摘要

German sociologist and jurist Max Weber (1864-1920) articulated his comparative sociology with three characteristics: It is a dual (intra- and inter-cultural) comparison, a multidimensional (religious-ethical and economic, political, juridical, etc.) comparison, and additionally he used intra- and intercultural comparison interchangeably. This creates a danger: the demarcation between his "heuristic Eurocentrism" and "normative Eurocentrism" becomes blurred. He equated (inadvertently but inevitably) a preliminary developmental stage of Occidental culture to the development of another culture leading in a different direction. According to Weber, the "substantive-irrational" aspect of law and an informal, patrimonial and arbitrary character of adjudication applied not only to the states of the medieval Occident, but also to Imperial China. At the conclusion of his analysis he took traditional Chinese justice as one kind of substantive-irrational "kadi justice," in contrast to the modern Western Continental, fully developed "formal-rational" justice. The authors have analyzed this comparison in detail and concluded, among other things, that Max Weber was biased by Western Continental legal culture with its rigid definitions of law, lawmaking and lawfinding. Using the conceptual device of "poly- contextuality" supported by new historical research, the research findings consequently suggest that Weber fell prey to normative Eurocentrism in his study of traditional Chinese law and justice.

原文英語
頁(從 - 到)33-69
頁數37
期刊Taiwan Journal of East Asian Studies
10
發行號2
DOIs
出版狀態已發佈 - 2013
對外發佈Yes

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ASJC Scopus subject areas

  • Arts and Humanities(all)
  • Cultural Studies

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