THE NATURE OF SOCIAL AGREEMENTS (YUE) IN THE LEGAL ORDER OF MING AND QING CHINA (PART ONE)

2005 ◽  
Vol 2 (2) ◽  
pp. 309-327 ◽  
Author(s):  
Hiroaki Terada

The two most notable forms of law in the Ming and Qing periods were state law and private contracts. They were thought to exist separately, as the saying went: “The state has laws while individuals have private contracts.” Scholars have also held the same view; they have contrasted the two, defining the former as vertical, authoritative and a political tool to govern the state, and the latter as horizontal, voluntary and a tool to regulate economic activities of individuals. Social agreements that were instituted in order to maintain order in villages, however, had characteristics of both; on one hand they were contracts drawn up voluntarily by the villagers, but on the other hand, they also had the aspect of commands given by village leaders for ordinary members to observe. The opening section looks at studies that have been made on written law and private contracts. The following section examines how village compacts were instituted and how they were enforced. Three types of village compact are examined – village regulations, village compacts based on the Confucian moral code, and alliances connected with rent-resistance movements. Part Two will discuss the nature of coercive commands and voluntary contracts, both of which commonly coexisted in a unique mixture in village compacts, and will then expand the conclusion drawn from the discussion above to the level of the state, to present a new framework for understanding the relationship between statutory law and private contracts, and that between state authority and social power.

Author(s):  
Peter Coss

In the introduction to his great work of 2005, Framing the Early Middle Ages, Chris Wickham urged not only the necessity of carefully framing our studies at the outset but also the importance of closely defining the words and concepts that we employ, the avoidance ‘cultural sollipsism’ wherever possible and the need to pay particular attention to continuities and discontinuities. Chris has, of course, followed these precepts on a vast scale. My aim in this chapter is a modest one. I aim to review the framing of thirteenth-century England in terms of two only of Chris’s themes: the aristocracy and the state—and even then primarily in terms of the relationship between the two. By the thirteenth century I mean a long thirteenth century stretching from the period of the Angevin reforms of the later twelfth century on the one hand to the early to mid-fourteenth on the other; the reasons for taking this span will, I hope, become clearer during the course of the chapter, but few would doubt that it has a validity.


2013 ◽  
Vol 6 (3) ◽  
pp. 325-340
Author(s):  
Ridwan Al-Sayyid

This paper tackles the relationship between Islam and the state in light of the ongoing revolutions. It focuses on two perspectives: the Islamists' claim that the Shari'a and not the umma (community) are the source of legitimacy in the evolving regimes; and that it is the duty of the state to protect religion and apply the Shari'a. The main disadvantage of these propositions is that they preclude the Umma both from political power and Shari'a, thus pitting it against these two assets which become manipulated to its disadvantage by those holding power. On the other hand, an open-minded and reformist Islamic perspective believes in people regaining the prerogative to rule themselves, guided by their intellect and the public good. The main call for the Arab uprisings is to quit political Islam, which seems to be the major threat to religion, and dangerously divisive for societies.


2020 ◽  
pp. 1-37
Author(s):  
MANISHA SETHI

Abstract A bitter debate broke out in the Digambar Jain community in the middle of the twentieth century following the passage of the Bombay Harijan Temple Entry Act in 1947, which continued until well after the promulgation of the Untouchability (Offences) Act 1955. These laws included Jains in the definition of ‘Hindu’, and thus threw open the doors of Jain temples to formerly Untouchable castes. In the eyes of its Jain opponents, this was a frontal and terrible assault on the integrity and sanctity of the Jain dharma. Those who called themselves reformists, on the other hand, insisted on the closeness between Jainism and Hinduism. Temple entry laws and the public debates over caste became occasions for the Jains not only to examine their distance—or closeness—to Hinduism, but also the relationship between their community and the state, which came to be imagined as predominantly Hindu. This article, by focusing on the Jains and this forgotten episode, hopes to illuminate the civilizational categories underlying state practices and the fraught relationship between nationalism and minorities.


2019 ◽  
pp. 78-102
Author(s):  
Gleider Hernández

This chapter assesses the relationship between international law and municipal law. Though international law deals primarily with inter-State relations, and municipal law addresses relationships between individuals or between individuals and the State, there are many overlapping issues on which both international and national regulation are necessary, such as the environment, trade, and human rights. Though the international legal order asserts its primacy over municipal legislation, it leaves to domestic constitutions the question of how international legal rules should be applied or enforced in municipal orders. Two conflicting doctrines define the relationship between international and municipal legal orders: dualism and monism. Dualism is usually understood as emphasizing the autonomy and distinct nature of municipal legal orders, in which the State is sovereign and supreme. Meanwhile, theories of monism conceive the relationship between international and municipal legal orders as more coherent and in fact unified, their validity deriving from one common source.


2018 ◽  
Vol 9 (1) ◽  
Author(s):  
Xiaoguang Kang

AbstractChina recently promulgated and revised a number of laws, regulations and measures to regulate the nonprofit sector. All these administrative efforts increase support for Chinese nonprofit organizations (NPOs) on the one hand and put unprecedented pressure on them on the other. The seemingly contradictory effects are actually based on the same logic of Administrative Absorption of Society (AAS). This article proposes three phases in the development of AAS: an subconscious phase, a theory-modeling phase, and an institutionalization phase. The institutionalization of AAS has led to the rise of neo-totalitarianism, which is featured by state capitalism, unlimited government, and a mixed ideology of Marxism and Confucianism. Neo-totalitarianism further strengthens AAS and has begun to reshape the relationship between the state and the nonprofit sector. This article analyzes China’s nonprofit policymaking from a sociopolitical perspective, and clarifies the context, the characteristics, and the evolution of laws and policies in the nonprofit sector in macrocosm.


Author(s):  
Simon Ball

This chapter characterizes the relationship of the British state to war over the long term. It analyses two epistemic turning points for the war–state relationship, one occurring in the 1860s, the other in the 1970s. It explains the importance of war to the British state under the ‘fiscal security’ compromise.The chapter traces the long and uneven emergence of the ‘welfare state’ as a successor to the ‘warfare state’. It argues that the ‘warfare state’ paradigm loses much of its empirical and conceptual force if it were to be extended beyond 1970. The relationship of the state to war changed so fundamentally at that point that history, the chapter suggests, ceased to be a useful guide for future conduct.


Modern Italy ◽  
1998 ◽  
Vol 3 (01) ◽  
pp. 67-85 ◽  
Author(s):  
James Martin

SummaryThis article examines Gramsci's theory of intellectuals in the light of Bauman's distinction between ‘legislators’ and ‘interpreters’. By distinguishing descriptive and prescriptive dimensions to Gramsci's theory, it is possible to see a tension between the dual ethical and political functions that he attributes to ‘organic intellectuals’. In the one, Gramsci effectively deconstructs the intellectual's role as the bearer of universal knowledge, while in the other he reconstructs that role through an emphasis on the revolutionary party. It is argued that the tensions in Gramsci's theory stem from his attachment to a peculiarly modern conception of the relationship between intellectuals, culture and the state.


2018 ◽  
Vol 12 (2) ◽  
pp. 219-247
Author(s):  
Mohammad Hefni

Success of the Ottoman empire as one of the greatest, most extensive, and longest-lasting empires in the history of the world could not be released from the efforts of the government to organize the state throught establishment various institutions. Among them are judicials instititution such as kadi courts and Hisbah institutions which was led by a muhtesib. Therefore, this paper discusses the relationship and the interaction between the kadi and the muhtesib in the Ottoman empire, and their historical roots in the periods before. The position of a kadi and a muhesib has existed in periods before the Ottoman empire. A kadi has existed since the Prophet Muhammad pbuh period. While, a muhtesib historically has began in the Greco-Roman agoranomos. In the Ottoman empire, both became important governmental functions. They had the power to pronounce decisions on everything connected with the sharî'a and the Sultanic law. They played roles in controlling urban life, its economic activities in particular. All the production and manufacturing activities in the cities that were carried out within the framework of the guild organization was under the control of the kadi and the muhtesib. For example a craft guilds and a creditor guilds.  


2006 ◽  
Vol 55 (3) ◽  
Author(s):  
Giuseppe Dalla Torre

Dopo essersi rilevato il fenomeno della rinascita del fatto religioso nell’odierna società secolarizzata, grazie anche al massiccio fenomeno immigratorio, si descrive l’impatto del pluralismo etnico-religioso sulle tradizionali realtà degli ordinamenti giuridici statali; impatto reso ancora più problematico per l’ascesa di nuovi poteri, in particolare quello tecnico-scientifico, insofferenti ad una eteroregolamentazione non solo sul piano etico, ma anche sul piano giuridico. Si mette quindi in evidenza una crescente ambiguità che investe la biogiuridica: da un lato la nuova esigenza di riconoscere il rivendicato “diritto alla diversità” da parte delle diverse formazioni etnico-religiose; dall’altro l’esigenza di una regolamentazione giuridica uniforme a garanzia dell’ordinata convivenza attorno ad una scala valoriale che abbia nella “vita” il bene centrale ed ultimo da salvaguardare. Tra le conclusioni cui si giunge è innanzitutto quella per cui la pacifica convivenza in una società multietnica e multireligiosa può essere assicurata, nel rispetto delle diverse tradizioni e culture, attraverso il ricorso a moderati e saggi riconoscimenti di spazio al diritto personale all’interno degli ordinamenti statali, ma nei limiti rigorosi posti dalle esigenze di tutela della dignità umana. Ciò tocca anche la questione dei “nuovi poteri” che, nel contesto di una società globalizzata, impongono una rielaborazione dell’idea di diritto che, partendo dal quadro di un sistema di fonti che tende sempre più ad essere organizzato non secondo gerarchia ma secondo competenza, si ispiri al principio del riconoscimento dell’essere umano nella sua dignità, indipendentemente dall’appartenenza etnico-religiosa. Infine si mette in evidenza l’inaccettabilità di un “diritto debole”, solo procedimentale, perché sostanziale negazione della funzione stessa del diritto, che è quella di prevenire e/o dirimere i conflitti tra interessi in gioco e, quindi, i contrasti tra le parti della società, difendendo nel rapporto i soggetti più deboli; così come si mette in evidenza che il prezioso bene della laicità dello Stato non è – come invece spesso si ritiene – salvaguardato da un “diritto debole”, ma solo da un diritto giusto. ---------- After being noticed the phenomenon of the rebirth of the religious fact in today’s secularized society, it is described also the impact of the ethnic-religious pluralism on the traditional realities of the government juridical arrangements; impact made even more problematic for the ascent of new powers, particularly that technical-scientific, impatient to an heteroregulation not only on the ethical plan, but also on the juridical plan. It is put therefore in evidence an increasing ambiguity that invests the biojuridical: from one side the new demand to recognize the vindicated “law to difference” from different ethnic-religious formations; from the other the demand of a uniform juridical regulation to guarantee of the orderly cohabitation around to a scale of value that has in “life” central and ultimate good to safeguard. Between the conclusions which the author comes it is, first of all, that for which the peaceful cohabitation in a multiethnic and multireligious society can be assured, in the respect of the different traditions and cultures, through the recourse to moderate and wise recognition of space to the personal law into the government arrangements, but in the rigorous limits set by the demands of guardianship of human dignity. This also touches the matter of new powers that, in the contest of globalization, impose a new elaboration of the idea of law that, departing from the picture of a system of sources that extends more and more to not be organized according to hierarchy but according to competence, inspire to the principle of the recognition of the human being in its dignity, independently from the ethnic-religious affiliation. Finally it is put in evidence the unacceptability of a “weak law”, just procedural, as substantial negation of the law function itself, which is that to prevent and/or to settle the conflicts between affairs at stake and, therefore, contrasts between the parts of the society, defending in the relationship the weakest subjects; as it is evidenced that the precious good of laity of the State is not - like instead it is often considered - safeguarded by a weak law, but only by a correct law.


Author(s):  
Kevin Vallier ◽  
Michael Weber

Religious exemptions take a variety of forms, with distinct shapes and normative underpinnings. This chapter identifies eight ideal types of religious exemptions, grouped into three larger rubrics, representing different analytic and justificatory structures, to help make sense of what might otherwise seem to be mysterious discontinuities and inconsistencies. The essay suggests how the various types can illuminate each other and how surveying the sequence as a whole might say something about the relationship between religion and the state and the power of the legal imagination. The payoff is that the first, most straightforward, category of religion-based exemptions is also the most radical. Some of the other categories are tamer precisely to the extent that they introduce a wider and more complex range of values, but that the excursion in the end will necessarily come full circle to where it began, with an existential encounter between religion and the state.


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