Melbourne Law School - Theses
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ItemThe Confucian misgivings : Liang Shu-Ming's narrative about law( 1999)This thesis is about Liang Shu-ming (ikx, 1893-1988), a figure of deep spiritual meaning in the realm of Chinese legal thinking. It aims to explore his thinking concerning law, in particular, his reworking of the traditional Chinese legal ideas in terms of the New-Confucianism. The major intellectual interest throughout this thesis is to offer a study on China's legal legacy, through Liang Shu-ming's eyes. I follow the formula of the parallel between Life and Mind (ll c) , Physis and limos. I will compare Liang Shu-ming's narrative with his own practical orientation and with the theories of other interlocutors. I will put Liang Shu-ming into the social context of modern Chinese history, in particular, the context of the unprecedented crisis of meaning in the legal realm and the collapse of a transcendental source for Chinese cultural identity in the light of modernity. The evaluation provided by my thesis could be helpful in clarifying the deep structures and significance of the present Chinese legal system through historically exploring Liang Shu-ming's misgivings. This thesis consists of three parts. Part I will present Liang Shuming's theoretical concerns about the concept of law, the source and meaning of law in Chinese socio-cultural contextualisations, the interaction between humanity and law, and in particular, limos and the underlying presumptions about the ideal human life and human order. This examination will support the thesis that the necessity of rethinking our legal tradition is derived from the urgency of getting an undistorted understanding about our own way of life itself. Part II will present an analysis of his understandings about constitutionalism, in particular, his critical articulations on the predicaments China has had to face in modifying and transplanting Western models. In order to explain my subject's various characteristics, a comparative analysis of Liang Shu-ming and his contemporaries, in both China and the West, will then be used to clarify the nature of constitutionalism, as a foreign body, in a place like China. In Part III, Liang Shu-ming's comparative insight about the Western legal tradition and spirit, and his attitude to and rationale for the conceptual and institutional transplantation of Western law in China, will be articulated. Here Liang Shu-ming unveiled a paradox beneath the process of so-called modernization by drawing inspiration from the West in modernizing China. That is to say, China has been facing a dilemma: either the refusal to imitate or the merely horizontal transplantation. He argued neither of them would be healthy for China. While refusal would result in something definitely worse, a simple horizontal transplantation would also be harmful. The intrinsic tension underlying this dilemma has consequently perplexed the legal shaping process in modern China. In the Conclusion, the creative tension between life and mind, limos and Physis as symbolism and substance will again be reflected in China's quest for the "new law". If a conclusion could suggest itself, however, it would be, "A Code is not at once a history and a system", but, "Our history is our code."
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ItemThe comprehensibility of legal language : is plain English the solution ?( 1997)This thesis seeks to establish whether plain English offers a complete, a partial, or no solution to the drafting of legal documents which are more comprehensible, particularly to lay persons. Built on limited prior research this thesis further identifies the characteristics of traditional legal English and establishes that they are constant across all types of traditional legal writing. Many of these characteristics have been shown by psycholinguists, cognitive psychologists and other researchers, to cause comprehension problems particularly in lay persons. Some flow directly from the search for certainty. Others result from a firm but mistaken belief held by lawyers that the semantic links within a sentence are stronger than those between sentences. Consequently a legal rule is incorporated within a single sentence structure often of extreme syntactic complexity. Further evidence is here presented to show that this is a major cause of comprehension problems in lay persons. Two types of discourse analysis have been used to establish that the single legal rule/single sentence structure lacks linguistic justification. Two characteristics of traditional legal English were found to be necessary properties of legal writing. The expression of the mandatory and discretionary form of the speech act is essential in legislation. The markers of the performative utterances, 'shall' and 'may', may cause comprehension problems for lay persons. These problems are compounded by the unthinking use of these markers to express commissive acts. Technical terms and terms of art were also found to be essential to the precise communication of legal concepts. Eighteen sets of plain English guidelines were evaluated, first on the basis of published research and then on information gained from the testing carried out for this thesis. A model of the process of drafting plain English documents was created and used to generate an improved set of plain English guidelines. These guidelines were used to redraft a so called 'plain English' document. This yielded further improvements in comprehension. The value of plain English in the drafting of legal documents was assessed. Plain English was found to offer a partial solution