Research Handbooks in Comparative Law series
Edited by Mauro Bussani and Anthony J. Sebok
Chapter 17: Chinese tort law: Between tradition and transplants
When one examines a legal system or a particular area of law in a particular jurisdiction, it is difficult to truly appreciate the reality by only looking at the official laws. When dealing with a country as old and sophisticated as China, one can easily miss the whole picture by focusing only on the written statutes. Admittedly, a series of legal transplants have resulted in the enactments of major legislations and the establishment of legal institutions that are modeled on western systems. A westernized civil law system has been established in China after a century of legal modernization. However, in a country that has been run by its own set of social norms that were guided by feudal law and Confucianism for thousands of years, the legitimacy of the foreign laws imposed by political elites cannot be earned overnight. Judge Charles Summer Lobingier of the United State Court for China from 1914 to 1924 observed that: It is no easy task to restate a legal system, already more than four thousand years old, so as to meet the needs of a nation of 400 million. In fact the danger lies rather in haste than in deliberation. Jurists from Savigny down have pointed out the folly of imposing bodily upon any nation the laws of another. That folly becomes aggravated when each represents a totally diverse type of civilization. Importation of foreign codes into China will not solve the problem.
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