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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ItemJurisprudential and cultural perspectives on the implementation of procedural justice in administrative law in the People's Republic of China( 1999)Initially, this thesis represents a theoretical argument about the values of procedure in different social settings. In particular, it explores the implications of such concepts as democracy, justice, efficiency and social stability from a procedural perspective. The argument shows that the role of procedure is indispensable to the concepts. Then the thesis specifically examines the role of procedure in ensuring justice and legality in the administrative state through a comparison between the Civil and Anglo-American legal traditions. In the context of China, the thesis shows that the underdevelopment of fair legal procedures in ancient China relates to the intention of ancient Chinese law, fa, and its tradition of li and 'non-litigation' (wu song). From the transformation period of Chinese law, dating back to the middle of the nineteenth century, the concerns about independent procedural laws in China increased. This was evidenced by the corresponding legislation drawing on the ideas and experiences of Western countries in both the late Qing dynasty and Republican China. In the People's Republic of China, the modernisation and Westernisation of Chinese law encountered a setback for decades. Legal instrumentalism prevailed. Procedural law was seriously underestimated. From the late 1970s, Chinese lawyers began to rebuild the legal system following a series of economic and ideological changes caused by a social reform. However, law cannot be implemented without the means to do so. Thus the lawyers began to highlight the role of procedural laws in overcoming the impact of legal instrumentalism. The thesis applies the initial theoretical argument to a discussion of the role of procedure in ensuring administrative legality in the People's Republic of China in view of Chinese tradition, its modern situations and contemporary experiences. The focus in this context is the necessity and possibility of enacting a comprehensive administrative procedure Act. Looking at the experiences of Western countries and the existing features of Chinese legislation, it suggests that the best way to provide a procedural framework for administrative activities in China is to selectively and separately codify the procedures. Finally, a conclusion is drawn on the whole.