International Social Science Journal (Chinese Edition)

No.3, 2024

 

Legal Transplantation: Reforms of the Judicial Hierarchy and Jury of the Court of Admiralty in the Tudor Dynasty

(Abstract)

 

Han Chenguang

 

The Court of admiralty is an independent tribunal that applies civil law in English legal history. How to understand the Tudor dynasty’s design of its judicial hierarchy and jury has been controversial for a long time. On the one hand, during the Tudor period, the judicial hierarchy was established, and the qualification to hear appeals became one of the privileges that the king could grant. The appeal system centered on people, not institutions, established a judicial hierarchy in maritime justice. On the other hand, during the Tudor period, a system of “maritime jury” was established, which has the characteristics of not needing to apply for a warrant and only being responsible for trial facts. The Court of Admiralty using juries is still independent of the common law system. Both are attempts in England to transplant specific procedures in the civil law or common law system. In terms of function and purpose, maritime “judicial hierarchy” and maritime jury seem to be “failures”; but according to various modern standards for judging the success of legal transplantation, they all seem to be “successful.” Returning to the theory of comparative law and legal transplantation, this “success” can demonstrate the feasibility of the “court transplantation theory” centered on judicial initiative or court initiative. Transplantation issues provide new ideas.