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The Modernization of Contemporary Chinese Law

Published online by Cambridge University Press:  05 August 2009

Benjamin Gregg
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With the collapse of the Soviet Union, the People's Republic of China remains the world's only major communist society. Will China's regime go the way of its Soviet counterpart, or might it survive well into the next century and beyond? I do not undertake to answer this question directly. But my analysis of one sector of contemporary Chinese society—the legal system—suggests that the Communist party is losing its tight control over several major areas of Chinese society. In the long-run the party will be progressively weakened by current trends toward legal modernization. These trends encourage more liberal (because noninstrumentalized) forms of political, and not only legal, organization.

Type
Research Article
Information
The Review of Politics , Volume 55 , Issue 3: Special Issue on Public Law , Summer 1993 , pp. 443 - 470
Copyright
Copyright © University of Notre Dame 1993

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References

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3. Gregg, “Legal Neo-Traditionalism in Communist China.” One source for imperial Chinese law is the Da Qing Lu Li (published under the alternate translation: Ta Tsing Leu Lee, trans. Staunton, George [London: Strahan and Preston 1810])Google Scholar, a body of edicts, ordinances and rules governing the activities of officials and indirectly regulating relations between citizens. It was first promulgated in 1728, amended every ten years, and finally nullified by the fall of the Qing Dynasty in 1911. Many of the amendments were in the form of sub-statutes, legislated in response to actual cases, representing further refinements and finer distinctions to statutes. Such refinements made possible an initial evaluation of a case (according to preestablished criteria), as well as an evaluation of consequences that could be expected. Hence the disposition of earlier cases provided “precedents” which could be used to guide disposition of later, related cases. Further, the code contains rules of interpretation (e.g., sec. 21, on the procedure to be followed when a person under sentence commits a second offense, or sec. 25, on remission of penalty for voluntary surrender), including a clause providing for the use of analogy to determine appropriate punishment for crimes not mentioned in the code. Hence Jones's assertion is overstated that no contemporaneous tradition existed of analyzing the Qing code or legal relations in general (Jones, William C., “Studying the Ch'ing Code—The Ta Ch'ing Lü Li,” American Journal of Comparative Law 22 [1974]).CrossRefGoogle Scholar Staunton's translation of the Da Qing Lu Li (which I cite) does not include any of the sub-statutes, which may be found in Chinese in Tu-Li Tsun-I [“Reservations on Reading the Li”], ed. Huang, Tsing-chia (Taipei: Hsueh, 1970)Google Scholar, and in French translation in Manuel du Code Chinois, trans. Boulais, Guy (Paris, 1924).Google Scholar

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24. China Daily, 22 February 1989; Japan Times, 27 October 1992, p. 8. To appreciate the truly daunting task in China today of quickly educating large numbers of students in a specialized field like law, one must bear in mind that 230 million people in China (95% of them rural and 70% of them female) were defined as “illiterate” by the State Statistical Bureau, (China Quarterly 117 (03 1989):180–95 and 118 (04 1989):391–407).Google Scholar According to a 1980 estimate (Spence, , Modern China, p. 690)Google Scholar, less than 6 percent of the Chinese judiciary had any formal legal education. Short-term special training courses have been used to educate newly appointed officials with no previous exposure to legal study. But in the allocation of assignments to the bench, political dependability remains far more important than professional competence.

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26. Ibid.

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28. For example a definitive textbook of international law, with contributions from twenty senior Chinese jurists, was published in 1981. Beijing officials invited numerous foreign legal experts to visit China and help analyze international procedures, such as the Law of the PRC on Enterprise Bankruptcy of 1986 (Spence, , Modern China, p. 709Google Scholar).

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45. Buxbaum, David, “Some Aspects of Civil Procedure and Practice at the Trial Level in Tan shui and Hsin chu from 1789 to 1895,” Journal of Asian Studies 30 (1971): 266–67.CrossRefGoogle Scholar The very form and organization of the Da Qing Lu Li suggest that Qing law was undifferentiated from administration in many ways. In form, the code is a directive from the emperor to magistrates on correct procedures in trying or deciding cases; it is not addressed to the population to whom it applied. The code organizes offenses according to which of the six state bureaucracies a particular delict would fall under—and not according to the nature of the crime (e.g., crimes against person or crimes against property), its seriousness (e.g., crimespunishable with beating or crimes punishable with death) or the status of the victims (e.g., family members or government officials) (Jones, , “Studying the Ch'ing Code,” pp. 338-39Google Scholar).

46. In Qing China law was not formally studied, as were for example philosophy and literature, both of which were subjects on the civil service examination (Watt, John, The District Magistrate in Late Imperial China [New York: Columbia University Press, 1972], pp. 24–25Google Scholar). No provision was made for on-the-job training or practica. The district magistrates who enforced the Da Qing Lu Li were not trained in the law, although they had secretaries who were experts of a sort and who, at least in some cases, may have functioned as the actual decisionmakers (Der Sprenkel, Sybille Van, Legal Institutions in Manchu China [London: Athlone Press, 1962], pp. 144–46Google Scholar). The county magistrates acted as detectives, judges, and jury; they accumulated the evidence, evaluated it, and passed sentence. Punishments for particular crimes were prescribed in the legal code, which magistrates had to follow. Although these officials often relied on a member of their clerical staff allegedly “expert” in the law, no independent profession of law and no lawyers existed. Those who, from the outside, tried to intervene in criminal cases were usually castigated for their efforts.

47. Jones, , “Studying the Ch'ing Code,” p. 356.Google Scholar

48. Hence the criminal-civil distinction was not so relevant as whether an offense or dispute should be settled by the formal or informal judicial machinery, which, according to Ansley (Ansley, Clive, “Chinese Criminal Law under Manchus and Marxists,” University of British Columbia Law Review 20 [1986]: 169–71)Google Scholar, depended on three related factors. (1) Were the interests of the government (or society at large) seriously affected? A theft, an assault, or in certain specific family situations, a killing, might not involve the formal legal machinery at all. Conversely, stirring up litigation or even reneging on a stated intention to commit suicide might well result in heavy penalties being inflicted by the formal judicial process. (2) What was the magnitude of the act? As a general rule, an act would not encounter the formal machinery of the law if it had a relatively minor impact on society. But if it created a noticeable disturbance, whether by “criminal” activity or simply by fomenting discontent, formal legal implications were inevitable. Thus inciting a commercial strike was punished by decapitation in the Qing code (Bodde, Derk and Morris, Clarence, Law in Imperial China, Exemplified by 190 Ch'ing Dynasty Cases [translation of Hsing-an hui-lan] [Cambridge, MA: Harvard University Press, 1967], p. 279).Google Scholar Correspondingly, art. 10 of the PRC's current Code of Criminal Procedure renders criminal and punishable by law “any action which… disrupts public order… or any other action which endangers society.” (3) Did the more informal judicial organs fail? If clan, guild, or village organizations or mediators failed to resolve a dispute or reform a chronic troublemaker, the matter would end up at court.

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51. Ibid., p. 129.

52. Habermas, Jürgen, Faktizität und Geltung. Beiträge zur Diskurstheorie de Rechts und des detnokratischen Rechtsstaats (Frankfurt: Suhrkamp, 1992), p. 484.Google Scholar

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55. Nor is modernization necessarily and in all respects emancipatory, in a political and social sense. In some cases modernization may simply provide resources for new forms of domination. In other cases it may increase anxiety over social status. For example the distribution of rewards in modern societies depends, increasingly, on individual achievement, not group membership or ascribed status.

56. If for example a legal rule (plausible in terms of both civil and economic law) asserts that, in a given context, the equal should be treated equally and the unequal unequally, how should it be applied in concrete cases? In fact, no legal rule, no matter how context-sensitive, can actually bring about the asserted equal right to private autonomy unless it simultaneously provides the individual an effective equal right to political autonomy (the right to participate in, or otherwise influence, the political fora in which equality and inequality are defined in practical terms and measures decided upon to create, eliminate, or modify them). In many concrete instances probably only the affected parties themselves can determine what equality and inequality actually mean.

57. The liberal and the welfare-state models both regard the individual solely in his or her role as addressee of the legal order. But individuals can only be autonomous when they are equally “authors” of the law to which, as addressees, they are also subject (Habermas, , Faktizität und Geltung, p. 492Google Scholar). In this spirit (though in a very different context) I develop a general model which I call “enlightened localism” (Benjamin Gregg, “Possibility of Social Critique in an Indeterminate World,” Theory and Society [forthcoming]). “Enlightened localism” does not attempt to resolve the tension between the liberal and the welfare-state models, but rather to go beyond both paradigms. Both constructs freedom as the equal distribution of earned or entitled goods. My alternative constructs freedom not as possession, but as action: equal participation in the collective self-determination of interested citizens or otherwise relevant members of a community, however defined. Such a model could be relevant to a future China freed of its enduring traditionalism.