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Confucian Jurisprudence, Dworkin, and Hard Cases

Washington University Jurisprudence Review, Vol.10.1, Forthcoming

Peking University School of Transnational Law Research Paper No. 16-13

18 Pages Posted: 27 Apr 2016  

Norman P. Ho

Peking University School of Transnational Law

Date Written: April 1, 2016

Abstract

This article argues that Confucian jurisprudence can accurately be analogized to Dworkin’s adjudicative theory of law, in particular, his interpretive theory of law. To more effectively reveal the methods of Confucian jurisprudence and therefore carry out a comparison with Dworkin’s interpretive theory of law, this article adopts Dworkin’s methodology of focusing on “hard cases.” Specifically, this article identifies and then examines an actual hard case (from Tang dynasty China) which is arguably representative of Confucian jurisprudence in action – the controversial case of Xu Yuanqing, who committed a revenge killing against a low-ranking official who had killed his father. In particular, this article translates into English and analyzes two diverging legal opinions authored by Confucian officials on the case (one calling for Xu’s execution, the other calling for Xu to be spared), attempting to show the similarities between Confucian jurisprudence and Dworkin’s interpretive theory of law. This article concludes by discussing the implications of such similarities on legal theory more generally. To that end, it will argue that Dworkin’s adjudicative theory of law need not necessarily be confined to Anglo-American jurisprudence, and, that despite Dworkin’s own assertions to the contrary, Confucian jurisprudence is in fact not incompatible with Dworkinian approaches to law. Finally, this article will also highlight some unique, different features of Confucian jurisprudence and how such features might contribute to comparative jurisprudence more generally.

Keywords: Dworkin, Confucianism, Legal Theory, Jurisprudence, Tang Dynasty, Hard Cases, Chinese Legal Theory, Chinese Legal History, Chinese Law

Suggested Citation

Ho, Norman P., Confucian Jurisprudence, Dworkin, and Hard Cases (April 1, 2016). Washington University Jurisprudence Review, Vol.10.1, Forthcoming; Peking University School of Transnational Law Research Paper No. 16-13. Available at SSRN: https://ssrn.com/abstract=2770278

Norman Ho (Contact Author)

Peking University School of Transnational Law ( email )

Peking University Shenzhen Graduate School
University Town, Xili, Nanshan District
Shenzhen, Guangdong 518055
China

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