The Institutional and Cultural Logics of Legal Commensuration: Blood Money and Negotiated Justice in China

Abstract

Legal commensuration is a complex mechanism of valuation. Its complexity has much to do with the relational nature of the monetary exchange involved between parties in the litigational context. This article offers a framework to understand its process and outcome by focusing on the institutional and cultural logics of the practice. 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 favoring reconciliation and cultural meaning of money. Political considerations play a decisive role in incentivizing judges to facilitate a settlement. The cultural meanings of money serve as another factor shaping the outcome of reconciliation. In particular, blood money is valued both for its practical certainty and its symbolic value as a token of apology. Through a brief comparison of the Chinese and US systems, the article shows that this framework represents a step toward a more systematic and theoretical conception of legal commensuration.

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