Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law

Abstract

Hong Kong courts have over one hundred years of experience dealing with cases of historical Chinese marriage that took place in Republican China (1912-1949), forming a common-law narrative of the changes that the law underwent from the imperial to modern legal systems. Into the 21st century, family and succession law cases involving issues relating to these historical marriages continue to be brought before the courts. The courts apply only the transplanted civil code, i.e. Book of Family, if the matters in question occurred after that code’s effective date of 5 May 1931. Imperial Chinese jurisprudence is regarded as incompatible with ‘modern’ law, and thus ignored. This article argues that this century-old approach to narrating how family law changed in China is flawed and Orientalist. It also raises wider methodological concerns about judges’ tendency to follow judicial precedents based on archaic sources and abandoned historiography in investigating legal history.