Anti-Formalism and the Preordained Birth of Chinese Jurisprudence

Abstract

This article describes attempts in Chinese legal scholarship to produce indigenised forms of jurisprudence. These attempts are partly animated by an ethos of anti-formalism and the assumption that Chinese legal thought and the Chinese approach to adjudication are more flexible and more responsive to social concerns than (Western) legal formalism. Interestingly, prominent currents of European and American jurisprudence have made use of similar anti-formalist arguments since the beginning of the twentieth century. The anti-formalist impulse and the calls to indigenise Chinese jurisprudence are therefore best understood as performative strategies that support specific ideological projects, such as the effort to legitimise China’s political status quo.

Keywords: Chinese law, legal theory