The Institutional and Cultural Logics of Legal Commensuration: Blood Money and Negotiated Justice in China

35 Pages Posted: 1 Feb 2017 Last revised: 2 Feb 2017

See all articles by Kwai Hang Ng

Kwai Hang Ng

University of California, San Diego (UCSD)

Xin He

City University of Hong Kong (CityUHK); University of Illinois at Urbana-Champaign, College of Law, Visiting

Date Written: January 31, 2017

Abstract

Legal commensuration is a complex mechanism of valuation. Its complexity has much to do with the relational nature of the monetary exchange involved between parties in the litigational context. This article offers a framework to understand its process and outcome by focusing on the institutional and cultural logics of the practice. The criminal reconciliation process in China is used as a real-world empirical illustration. Drawing mainly on data collected from fieldwork investigation of two basic-level courts, this article identifies two factors that affect the process and outcome of legal commensuration: institutional interests favoring reconciliation and cultural meaning of money. Political considerations play a decisive role in incentivizing judges to facilitate a settlement. The cultural meanings of money serve as another factor shaping the outcome of reconciliation. In particular, blood money is valued both for its practical certainty and its symbolic value as a token of apology. Through a brief comparison of the Chinese and US systems, the article shows that this framework represents a step toward a more systematic and theoretical conception of legal commensuration.

Keywords: criminal reconciliation, China, political considarations, judges, legal commensuaration, punishment, institutional logic, cultural logic, blood money, negotiated justice, economic compensation, justice

JEL Classification: K00, K10, K14, K4, K40, K41

Suggested Citation

Ng, Kwai Hang and He, Xin, The Institutional and Cultural Logics of Legal Commensuration: Blood Money and Negotiated Justice in China (January 31, 2017). Centre for Chinese & Comparative Law Research Paper No. 2017/003. Available at SSRN: https://ssrn.com/abstract=2909405 or http://dx.doi.org/10.2139/ssrn.2909405

Kwai Hang Ng

University of California, San Diego (UCSD) ( email )

9500 Gilman Drive
Mail Code 0502
La Jolla, CA 92093-0112
United States

Xin He (Contact Author)

City University of Hong Kong (CityUHK) ( email )

83 Tat Chee Avenue
Kowloon
Hong Kong

University of Illinois at Urbana-Champaign, College of Law, Visiting

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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