Order and Discipline in China: The Shanghai Mixed Court 1911-1927

University of Washington Press, 2017 M05 1 - 176 páginas
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China s traditional system of dispute resolution and maintenance of order in society has been treated by Western scholars as legal history, but because the Chinese system is radically different from European systems in its conceptual structure and therefore does not fit into the familiar categories and models of Western law and jurisprudence, such treatment has been inadequate and often misleading. In Order and Discipline in China, Thomas B. Stephens provides a new approach, methodology, and theoretical framework for the interpretation of traditional Chinese law.

Stephens argues convincingly that Chinese society has always operated according to the disciplinary system of order, ni which hierarchy is established by actual power, and he provides a thorough methodology and framework for understanding disciplinary theory. He discusses the system, showing it not the random (or even unjust) tyranny it may sometimes appear to the Western, legally oriented mind but an effective system that successfully guided China for centuries. The study is not merely historical, but provides insights into Chinese ways of thinking about social relationships, dispute resolution, and the enforcement of civil obligations that are vital to intercultural understanding today.

His study is based on the activities of the Mixed Court of the International Settlement at Shanghai, which dealth with legal problems concerning Chinese people within the representative, or assessor. The Mixed Court conventionally has been looked upon as a disciplinary tribunal enforcing a system of dispute resolution and the maintenance of social order upon the principles of disciplinary theory.

The Mixed Court is a convenient point from which to measure the legal and disciplinary systems against each other and to study them in conflict. Although Western powers tried to interpret the court in legal terms, it responds much more convincingly to analysis according to the disciplinary system: it provided its right to rule by the abililty to enforce its decisions, and it decided cases not, as claimed, by Chinese laws (which actually did not exist) but according to those principles established by the Western consuls.

Order and Disipline in China will be of interest not only to legal scholars and students of Chinese history and society, but also to students of social order and international relations throughout the world. It also offers practical assistance to Westerners dealing with Chinese business relations, social and political affairs, or dispute settlement.

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Página 69 - ... susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate...
Página 18 - But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.
Página 91 - That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.
Página 73 - An act of State is essentially an exercise of sovereign power, and hence cannot be challenged, controlled, or interfered with by municipal Courts. Its sanction is not that of law, but that of sovereign power, and, whatever it be, municipal Courts must accept it, as it is, without question.
Página 68 - Chinese hands. Regarded from a strictly legal point of view, it is impossible to justify this refusal of the Powers to yield to the several times expressed request of the Peking government that Chinese control should be re-established.
Página 57 - By virtue of Chinese law itself, the legal position of the military renders them immune from the jurisdiction of the ordinary courts, while their power in fact often renders them immune from all courts. This immunity is liable to be extended to the friends of the military and to the commercial firms and organizations in which they are interested.
Página 104 - ... long-standing diplomatic disputes, gradually converting the area outside the Foreign Settlements into a model city, the result of which should form the basis for our demand for the abolishing of foreign concessions. This has been one of my dearest dreams, for whenever I come to a treaty port I feel thoroughly humiliated, not only because a treaty port is a standing reminder of our loss of sovereignty, but also because whenever we pass from the concessions into Chinese territory we feel that we...
Página 87 - Civil cases are decided first according to express provisions of law ; in the absence of express provisions, then according to custom : and in the absence of customs, then according to legal principles.
Página 104 - This has been one of my dearest dreams, for whenever 1 come to a treaty port I feel thoroughly humiliated, not only because a treaty port is a standing reminder of our loss of sovereignty, but also because whenever we pass from the concessions into Chinese territory we feel that we are crossing into a different world — the former is the upper and the latter is the underworld, for nothing in the Chinese territory — roads, buildings, or public health — can be compared with the concessions. This...
Página 37 - I always thought that I could have gone anywhere and done anything with that army. It was impossible to have a machine more highly mounted, and in better order, and in a better state of discipline than that army was.

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