The institutional and cultural logics of legal commensuration: Blood money and negotiated justice in China

Abstract

© 2017 by The University of Chicago. All rights reserved. Legal commensuration is a complex mechanism of valuation. It entails social exchanges among parties in the litigational context. The way the law evaluates the unevaluable is guided by many specific facts about the parties and is influenced by its own institutional priorities. 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 promoting reconciliation and the cultural meanings of money. Political considerations play a decisive role in incentivizing judges to facilitate reconciliation. But the cultural meanings of money also shape judicial outcomes. In particular, blood money is valued both for its certainty and its symbolic value as a token of apology. Through a brief comparison of the Chinese and U.S. courts, the article shows that our emphasis on process can generate a more socially grounded understanding of legal commensuration.