Max Weber's Traditional Chinese Law Revisited: A Poly-Contextuality in the Sociology of Law

Title

Max Weber's Traditional Chinese Law Revisited: A Poly-Contextuality in the Sociology of Law

Author

Duan LIN, Po-fang TSAI

Page

33-69

DOI

10.6163/tjeas.2013.10(2)33

Abstract

German sociologist and jurist Max Weber (1864-1920) articulated his comparative sociology with three characteristics: It is a dual (intra- and intercultural) 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.

Keyword

Max Weber, Inter/Intra-Cultural Comparison, Heuristic/Normative Eurocentrism, Traditional Chinese Law, Late Imperial China, Carrier Strata, Poly-Contextuality

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