Mediation, litigation and justice: Confucian reflections in a modern liberal society

Abstract

The practice and institution of mediation as a means of dispute settlement is an important element of traditional Chinese legal culture, particularly Confucian legal culture. Is mediation out-of-date in a modern society based on the Rule of Law? This article introduces the philosophical basis, theory and practice of the Chinese tradition of mediation, and sets out the criticisms of traditional mediation from the perspective of modern liberalism and the Rule of Law ideal. The article then points out that mediation is still alive and well in both China and the West, and discusses the defence of mediation as a means of 'Alternative Dispute Resolution' developed by Western scholars. It suggests that there is convergence between such contemporary Western thought and traditional Confucian thinking. The article concludes that the theory and practice of mediation as 'creatively transformed' can make a significant contribution to modern civilization, and that therefore the heritage of China’s traditional culture is a valuable and useful resource for modernity.

調解作為一種解決紛爭的做法和制度 ,是我國傳統法律文化尤其是儒家法律文化的重要部分。在現代法治社會中 ,調解否已經過時 ?本文首先介紹中國的調解傳統的哲學基礎、理論和實踐 ,然后從現代自由主義和法治理想的角度 ,對傳統的調解提出批判。本文進而指出 ,調解在當代的中國以至西方仍有頑強的生命力 ,西方學者對調解作為“解決糾紛的另類選擇”之一提出了多種理論依據 ,其中不少與儒家傳統的睿見不謀而合。本文的結論是 ,經過“創造性轉化”后的調解理論與實踐能對現代文明作出貢獻 ,由此可見 ,傳統文化遺產在現代仍是十分寶貴和有用的資源。