China Social Science Review

No.3, 2024

 

“Sentimentality” in the Comparative Perspective of Chinese and Western Laws

(Abstract)

 

Ling Peng and Tang Ruiqing

 

From the perspective of legal history, a comparison of“sentimentality” with “legal formalism,” “judicial equitable rationality” and “legal realism” shows that the judicial process under the logic of “sentimentality” is not only different from the syllogistic application of legal texts advocated by legal formalism, but is also fundamentally different from the equitable reasoning of the common law tradition. Legal realism identifies irrational factors such as emotion, personality, and habit in the judicial process, and then views these factors either as interference external to the ideal judicial process or as having to be transformed into a higher level of legal rationality. In contrast, the logic of “sentimentality” in traditional Chinese justice fundamentally recognizes the rationality and importance of these factors in the trial process. As a way of understanding the world as a whole and as the highest goal, “sentimentality” is the key difference between traditional Chinese justice and Western justice, and the differences between Chinese and Western justice precisely reveal the differences between China and the West at the level of society as a whole at the same time.