Historical context, including legal traditions

The evolution of the modern Chinese legal system has been subject to the infusion of three streams of influences: traditional Chinese legal thought, socialist ideol­ogy and the Westernisation of Chinese law.

2.1 Chineselegaltraditions

It is said that the influence of traditional legal thought has been fading since China underwent social, political, and economic changes at an unprecedented level during the time of the late Qing Dynasty.^[33] This assertion might sound convincing as seen from the surface of Chinese society, but it is also deceiv­ing in the sense that it fails to notice that �the role of culture and tradition in shaping the law maybe muted, implicit and even unconscious'.^[34] In the Chinese context, some understanding of the legal traditions is necessary, not only because these constitute the historical context of the contemporary legal system, but also because many elements of these traditions have genuinely persisted into today's Chinese society.

Contrary to the popular misconception that there was no law in ancient, or imperial, China, �law in China has a long history and rich resources',^[35] evidenced by a great number of legal documents including the famous Tang Code (652 CE), Ming Code (1397 CE) and Qing Code (1646 CE). The earliest published law in China could be traced to the Xingshu, literally the �Book of Punishment', which was issued at least before 536 BCE.^[36] Ancient law codes share one common fea­ture: they are all comprehensive codes combining penal, civil and administrative rules in one statute.

Philosophically, the making and application of law in imperial China was influenced by several schools of legal theories, notably Confucianism and legal­ism. The Confucian school emphasises lizhi, or a society governed by li, which could be literally translated as morality, virtue, rites or rituals, or propriety (in conduct or behaviour), or the combination of all of these. The lofty goal of Con­fucianism is to achieve a harmonious social order by prescribing the rules of behaviour which vary in accordance with a person's status as defined in the vari­ous forms of social relationships.¹⁹ Confucius viewed the society as the medium through which one becomes ren (humane), and ultimately a junzi (superior man). Compulsorylaw (focusing on penal punishment) may induce compliance in the external behaviour of individuals, but is eventually powerless in trans­ferring the inner character of a person to make him a humane person of good character. Education is inevitably more useful in this regard. In one of his most cited passages Confucius said:

Lead the people with government regulations and put them in place with penal law, and they will avoid punishments but will be without shame. Lead them with virtue and organize them through the li, and people will have a sense of shame and moreover will order themselves harmoniously according to the proper rules of conduct.²⁰

Confucianism holds that an ideal system of governance is one based on virtue and rule of good people. The ruler should be a sage who takes benevolence and social rightness as the basic root of government.

What about the role of law in Confucianism's political theory? It is important to note that the Confucian school never advocated abandoning laws. Laws cannot replace the dominating role of li, but could complement the rule of li to protect the minimum interests of members of society. Punishments are used to deal with xiaoren (bad individuals) who threaten others and social stability and who refuse moral education. However, the ultimate goal is to establish a society in which the use of compulsory law can be avoided as much as possible. When Confucius was the chief judicial officer for the Lu Kingdom he said: â€?In hearing litigation I am much the same as any other judge. If you insist on a difference, it is perhaps that I try to get the parties not to resort to litigation.'²¹ The most effective wayfor this to be achieved is to encourage people's moral self-cultivation and self-containment, namely moral internalism. Under this influence, legal proceedings in imperial China attached great importance to self-motivated and self-initiated submission to the authorities, because confession represented a person's willingness to return to good virtue. Further, the primary goal of the legal system was to achieve substantive justice, while â€?the formal character of the process and the emphasis on the predetermined procedures for resolving conflict have often been seen as obstacles to a more personalized and creative approach to interpersonal conflict.'²²

19 T Ch'u, Law and Society in Traditional China, Mouton & Co, Paris, 1961, pp. 230-1.

20 Analects, II:3.

21 Daxue, IV.

22 R Peerenboom, op. cit., p. 30.

An equally influential traditional legal theory is legalism, also called legal realism. As adversaries to the Confucian school, the legalists considered differ­ences in social status irrelevant to the application of law.

Legalism was officially adopted in the Qin Kingdom which later became the Qin Empire (221-207 BCE), the first dynasty to unite China. In the Han Dynasty (206 BCE-220 CE), Emperor Wu (140-87 BCE) elevated Confucianism to the level of state ideology, resulting eventually in the so-called Confucianisation of law, meaning �the incorporation of the spirit, and sometimes the actual practice, of Confucian teaching into legal form.'^[41]

The imperial legal traditions collapsed with the end of the Qing Dynasty and the emergence of the Republic of China (ROC). After decades of fundamental social changes, including revolutions and Westernisation, �traditional legal cul­tures cannot explain the structure and content of contemporary Chinese laws.'^[42] However, although not officially recognised, the impact of China's imperial legal traditions on the country's legal system today is too obvious to be denied.

2.2 Communist and socialist ideology and practice

In 1949, the PRC was established, replacing the Nationalist Government as China's national government. The CPC replaced the Kuomintang (or Nationalist Party) as China's ruling party, except for Hong Kong, Macau and Taiwan. With the new Government adopting communism as the state ideology and socialism as the form of its political system, the contemporary Chinese legal system is heavily influenced by the country's socialist experience. To some extent, the legal system today continues to carry on at least some part of the communist ideology and socialist political-legal practice. Peerenboom nicely summarises the role of law in socialist China:

Classical socialist theory takes a dim view of law. Bourgeois law is nothing more than a tool used by the ruling class to protect its privileged positions. In the ideal communist society, the state will wither away and law will not be needed. In the interim, law is to serve political ends. In particular, law is to be used by the proletariat as a weapon in class struggles against the enemy in order to realize the people's democratic dictatorship.^[44]

In the post-1949 period, the initial development of legal theory featured two movements, namely critique of the Nationalist, bourgeois, legal theory, and wholesale adoption of Soviet legal theory.^[45] One of the first decrees issued by the new government was to abolish the Six Codes which represented the laws and the legal system of the former Nationalist Government, on the ground that �all Kuomintang laws are nothing but instruments designed to protect the reac­tionary rule of the landlords, the compradors, the bureaucrats, and bourgeoisie, and weapons to suppress and coerce the vast masses of the people'.^[46] The abo­lition was followed by a political campaign to criticise the �old theory' of the Nationalists.^[47]

Meanwhile, systematic efforts were made to import on a large scale legal institutions and legal thought from the Soviet Union.

Legal construction came to an abrupt end with the Anti-Rightist Move­ment in 1957. The political climate changed. Leaders, including Chairman Mao Zedong and Premier Zhou Enlai, opposed legal constraints on the Party-state's behaviour.^[50] Both legal activities and legal scholarship declined increasingly in the post-1957 period until the inception of the Cultural Revolution (1966-76) when virtually all laws and the entire legal system were terminated.^[51]

In short, during Chairman Mao's reign, rule by law was briefly experimented with several times but on each occasion was quickly rejected by the leadership. When law was used, it served as an instrument for implementing party policies and class struggles. In addition, there was no separation between law and politics in a nation featuring a planned economy and a state-controlled society. More importantly, Chairman Mao's personal character had a significant influence on almost every aspect of China's social and political life, including the making and application of laws. While this attitude towards law was not rights-based, it is too simplistic to conclude that it was not �useful' for China. After all, it was during the Mao era that China won and maintained its national independence, and also substantially embarked on industrialisation.

2.3 Westernisation of Chinese law

Throughout the past century, the major theme of China's legal history has been westernisation.^[52] The initial reform to the traditional system started in the late Qing Dynasty period (the late 19th century), half a century after the first mili­tary invasion by Great Britain during the Opium War of 1840.^[53] After the war, traditional Chinese values and systems were strongly challenged. Demands for reform came from internal and external forces. These included domestic social unrest which threatened to overthrow the monarchy; intellectuals attempting to modernise and reform the existing system; the penetration of Western economic, cultural and political ideals; repeated Western military victories over China; and Western claims for extraterritorial jurisdiction over Chinese territory. It was dur­ing this period that the idea of the rule of law was fashioned into Chinese legal thought for the first time in the country's history.^[54]

At the very beginning, the Qing Dynasty's legal reform was designed to serve a twofold purpose, namely, �to pave the way for the transition from traditional law to modern Western law; and to respond to Western criticisms on the cruelty of certain provisions in traditional Chinese law as reflected in the Great Qing Code.'^[55] As a result, certain traditional elements in Chinese law (such as cruel punishments) were abolished and a variety of codes, modelled after the civilian systems of Japan and European countries, were also drafted. With the collapse of the empire, the Westernisation of Chinese law was accelerated during the ROC period (1912-49) when the Kuomintang (Nationalist) Governmentpromulgated the Six Codes (Liu Fa) to cover all major aspects of social life, and established a European-style judicial system. As one commentator observes, in this period Chi­nese law �was becoming Western law, in its form, terminologies, and notions.'^[56] Almost all legislation was borrowed from foreign sources in the belief that �the prevailing legal thoughts and legislative trends in the West at that time happened to match perfectly the Chinese national sentiments.'^[57]

In the PRC period, shortly after Mao's death, Deng Xiaoping ended the Cul­tural Revolution and launched his reform and �open door' programs, which imple­mented policies such as economic development (in lieu of the political campaigns of the Mao era), opening China to foreign countries, and reconstructing the legal system. One of the major principles guiding the new programs was Deng's policy to learn from the experiences of foreign countries.^[58] Western-style legislative work commenced in the field of foreign investment and trade and steadfastly expanded to social and other economic areas. In 1992 the CPC's adoption of the notion of the �socialist market economy' led to further legal Westernisation, making new slogans such as �assimilation or harmonisation with international practice' and �doing things in accordance with international practice' prominent in China's socio-legal studies.^[59] Chen argues that since 1992 �lawmakers in China are looking for experience and models in Western countries, particularly in the pursuit for “rational” law. In doing so, Chinese law is increasingly becoming “Weberian” rather than “Marxist.”'^[60]

It can be seen that Chinese law has been evolving and now with its mar­ket economy is in the most dramatic period of this evolutionary process. In the past century, the evolution was focused on Westernisation, modernisation, marketisation and globalisation. At this stage, the evolution has built a basis for constructing a â€?thin’ version of the rule of law in China.⁴⁶ The problem of legal orientalism or quasi-legal orientalism is that they refuse to recognise this evolutionary nature and its impact on the Chinese legal system.⁴⁷

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