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The Role of Law in Traditional, Nationalist and Communist China

Published online by Cambridge University Press:  17 February 2009

Franz Michael
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Extract

Any treatment of such a basic topic as the role of law in China, old or new, becomes meaningful only if it is related to a discussion of the philosophy of law in our own tradition. In order to make an evaluation that brings the Chinese situation into relief, one has to compare, contrast, or relate the role of law at the different stages of China's development with its role in the Western tradition. Since the basic philosophical assumptions, on which all definition and discussion of law are based, are themselves controversial in our own tradition, this is a very hazardous undertaking; but it is crucial to any understanding of China, past and present.

Type
North Vietnam
Information
The China Quarterly , Volume 9 , March 1962 , pp. 124 - 148
Copyright
Copyright © The China Quarterly 1962

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References

1 Harvey, W. Burnett, Michigan Law Review, Vol. 59, No. 4, 02, 1961, p. 605.Google Scholar

2 My Philosophy of Law, Credos of Sixteen American Scholars, published under the direction of the Julius Rosenthal Foundation, Northwestern University (Boston; Boston Law Book Co., 1941). The essays in this collection cover the whole range of views on law in Western tradition.

3 Journal of the International Commission of Jurists, Vol. 2, No. 1, pp. 7–18Google Scholar, Spring-Summer, 1959, as quoted in Harvey, W. Burnett, “The Challenge of the Rule of Law,” Michigan Law Review, Vol. 59, No. 4, p. 612.Google Scholar

4 This is the Mentian tradition. Confucius himself did not clearly indicate whether he regarded human nature as good or bad but held that it had the quality of being educatile to goodness. Hsün-tzu regarded human nature as bad but came to the same conclusion that man. could be educated. Whatever the assumption as to human nature, education was believed to develop the good in man.

5 For a discussion of the work of Han Fei-tzu, see Escarra, Jean, Le Droit Chinois (Peking: Henry Vetch, and Paris: Libraire du Recueil Sirey, 1936), pp. 31et seq.Google Scholar

6 For a listing of these laws, see for instance, Wu, Chin-fang (C. F. Wu), Chinese Government and Politics (Shanghai: Commercial Press, 1934), p. 224et seq.Google Scholar

7 I can testify to the high standards applied by these courts from my own visits to the courts in a number of Chinese cities and a study of their procedures from 1934 until after the outbreak of the war in 1937.

8 On Taiwan the tradition of a legal system is still carried on and the struggle for its full realisation is not over. Whatever weaknesses may remain in the application of the laws, the principle of government under law continues to be accepted by all in the area of Nationalist China.

9 Vyshinsky, Andrei Y., The Law of the Soviet State, trans. Babb, Hugh W. (New York: Macmillan, 1948), p. 14Google Scholaret seq. Vyshinsky gives the authoritative interpretation of Marx and the official Soviet view as presently applied within the Communist bloc. This is the theory of “socialist legality” which has replaced earlier theories such as those of Stuchka and Reisner who are now attacked with much venom.

10 Ibid., p. 15.

11 Ibid., p. 48.

12 Ibid., p. 50.

13 Ibid., p. 52.

14 Peking English Language Edition, Third Translation, 1951, pp. 16–17. See China News Analysis (CNA), No. 17, Hong Kong, 02 4, 1955.Google Scholar

15 Vyshinsky, , op. cit., p. 50.Google Scholar Vyshinsky deals also in this authoritative work with “the rights and obligations” of Soviet citizens as given in the Soviet Constitution. Actually the Soviet government is not bound to respect these constitutional rights. In the belief of the Soviet theorist it is the “material guarantees” of the Soviet system—emphasised all the more im Soviet pronouncements the less they mean in reality—that enable each citizen to “realise the rights ceded [sic] to him by the state,” ibid., p. 89. As discussed by Vyshinsky they turn out to be such rights as participation in free assembly or demonstration when organised by the Communist Party, free speech for Communist policy and under Party direction, and other similar one-sided “freedoms.” The principle of this freedom to support Communism was the same as that of the “hundred flowers” period in Communist China.

16 On this evaluation of Mao Tse-tung's eight points in the abortive negotiations with the National Government in 1949, see the article by Hsin-min, Chou, “Organisational Questions on the Development of Legal Science in the Chinese People's Republic,” Sovetskoye Gosudarstvo i Pravo, No. 3, Moscow, 02 12, 1961, pp. 64–72.Google Scholar Translated by Joint Publications Research Service, No. 4649, 05 26, 1961.Google Scholar

17 ibid. The National Government's Law Codes were abolished through the “Directive on the Revocation of the Kuomintang's Complete Book of Six Laws and On the Establishment of Principles and Justice in the Liberated Regions,” published by the Central Committee of the Communist Party in February 1949. Article 17 of the Common Programme of the People's Political Consultative Conference of September 29, 1949, repeated the stipulation on abolishing “laws, directives and the judicial system of the Kuomintang reactionary government. …”

18 See Organic Law of the People's Courts (09 1954).Google Scholar For a short description of the court system and of the prosecution, see CNA, No. 140, July 20, 1956. A most important part of the Communist legal structure is its elaborate system of prosecution, which is directly under Party control and has taken over a function originally handled by the police. See David Buxbaum, “A Preliminary Study of Chinese Communist Legal Institutions and the Role of the Criminal Law,” unpublished manuscript.

19 Quoted in Current Background (CB) (Hong Kong: U.S. Consulate-General), No. 136, 11 10, 1951.Google Scholar

20 Article 6 of the Marriage Law. For the text see ibid., p. 8 et seq.

21 Toshitaka, Shiomi et al. , “Chūgoku Kon' iahō Kikigaki,” Kazokuseido no Kenkyū, Vol. 2, p. 217 (1957).Google Scholar

22 Article 17 of the Marriage Law.

23 “Marriage in Communist China,” CB, No. 136, 11 10, 1951, pp. 16, 24, 33, 37, 40, etc.Google Scholar

24 Ibid., p. 1.

25 See statement by Minister of Justice Shin Liang in Women of New China, 05 1950, quoted in CB, No. 136, pp. 2–3.Google Scholar

26 People's Daily (Jen-min Jih-pao), 09 29, 1951Google Scholar, Cabinet Instructions, September 26, 1951, quoted im CNA, No. 5, September 25, 1953.

27 For these figures, see People's Daily, 03 20, 1953Google Scholar, quoted in CNA, No. 5. See also CB, No. 136.

28 According to a “Government Administration Council Directive on the Investigation of Conditions Relating to the Implementation of the Marriage Law” of September 26, 1951, signed by Chou En-lai, published in the People's Daily, 09 29, 1951Google Scholar: “According to incomplete statistical data relating to women in various areas who had taken their own lives or been murdered because of their inability to achieve freedom in marriage and their oppression by their families, more than 10,000 thus lost their lives in the Central South region during the past one-year period, 1,245 also died similarly in Shantung province during the same period, while during the four-month period from May through August in 1950, 119 women also had their lives ended thus in the 9 hsien comprising the Hwau Yin special district in North Kiangsu. These figures should rouse the people's governments of all levels to a sense of serious vigilance, and governments of all levels must not tolerate such a serious situation.” Quoted in CB, No. 136, p. 13.

29 A discussion of this worst aspect of the misuse of power by village cadres and of the facts revealed by government investigations can be found in CNA, No. 5, p. 3, and in many statements by Communist authorities in CB, No. 136.

30 People's Daily, 02 19 and 25, 1953Google Scholar, quoted in CNA, No. 5, p. 4.

31 For the text of the law and a discussion of it, see CB, No. 1, July 24, 1951.

32 in the last two years a number of death sentences have, for instance, been given to people accused of stealing food or looting. See for instance, Tientsin Jih-pao, 01 20, 1960Google Scholar, trans, in Survey of the China Mainland Press (SCMP) (Hong Kong: U.S. Consulate-General), No. 2202, pp. 23–25Google Scholar; or Ch'ang-chiang Jih-pao, 05 28, 1960Google Scholar, trans, in SCMP, No. 2284, p. 13. See also the case of alleged food poisoning, People's Daily, 04 7, 1960Google Scholar, trans, in SCMP, No. 2339, pp. 7–8, and Tzu-yu Chien-hsien, No. 376, 03 28, 1960, p. 15.Google Scholar

33 For documents on the “three-anti” and “five-anti” movements, see CB, No. 168, 03 26, 1952.Google Scholar

34 See articles 16 and 18 of the “Regulations of the People's Republic of China for the Punishment of Counter-revolutionaries.”

35 CNA, No. 141, July 27, 1956, pp. 5–7.

36 See the case of “A Village Solomon” given in CNA, No. 284, July 10, 1959, pp. 6–7.

37 Essay in Cheng-Fa Yen-chiu, 04 1959Google Scholar, as quoted in CNA, No. 284.

38 CB, No. 168, p. 13 et seq.

39 CB, No. 101, July 24, 1951, p. 3.

40 Articles 4, 6, 7, 8, 9, 10, 13 of the “Regulations of People's Republic of China for Punishment of Counter-revolutionaries.”

41 CB, Mo. 101, p. 3.

42 Joint Publications Research Service, No. 4649, p. 10.Google Scholar

43 Kuang-ming Daily, 01 19, 1958Google Scholar, quoted in CNA, No. 255, 11 28, 1958, p. 7.Google Scholar

44 Joint Publications Research Service, No. 4649, p. 8; CNA, No. 255, p. 4.Google Scholar

45 At the People's Congress in 1957 it was officially announced that a draft of a criminal code was ready. CNA, No. 187, p. 5 and No. 284, p. 1.

46 Anonymous essay in Cheng-Fa Yen-chiu, 04 1959Google Scholar, quoted in CNA, No. 284, pp. 2–3.

47 CNA, No. 140, 07 20, 1956, p. 2.Google Scholar

48 New York Times, 08 1, 1961Google Scholar, “Soviet Party's Draft Program of July 30, 1961.”