Rule Of Law in China

Historical Introduction, Present Status, Future Prospects


Essay, 2013
7 Pages, Grade: 2,0

Excerpt

Table of Contents

I. Introduction

II. Development ofRule ofLaw in China
a. Imperial Rule
b. Late Empire and Republic of China
c. The PRC under Mao Zedong
d. The PRC after the Cultural Revolution

III. Present Situation

IV. A small prospect on the further development

Introduction

The People's Republic of China in 2013: 1.3 Billion people on the verge of becoming part of the - expected - ruling nation of the 21st century. By smartly adapting western style economic policies to replace the hence centrally planned by a well functioning market economy, the former developing country has managed to rise in just 3 decades from the ashes of the political chaos of the cultural revolution to the olymp of the world's leading industrialized nations. Reaching an economic accural rate of annually over 8 Percent, it already managed to took over the place of Japan in terms of GDP and is now only second to the United States, while the gap between them continues to decrease every year.[1]

But does this modernization of the economic as well as the financial sector goes in hand with the modernization of the law system, leading to what western scholars would describe as the Rule of Law in China?

This will be the key question of the following work, focusing not only on the historic origins of the Chinese understanding of jurisprudence and the development of Rule of Law in China, but also discussing the current situation and finally dare to venture a prognosis on the future of Rule of Law in China.

Though Rule of Law is already a widely known concept, there is still a huge academic dispute about its exact definition.[2] Does the system only consist of publically declared laws with prospective application, that inherit the characteristics of generality, equality and certainty as the proponents of the formal or thin theory of Rule of Law argue or are individual rights or even the implementation of democratic structures necessary, as the advocates of the opposing thick theory allege?[3]

Since the precise extent of the thick theory is still by far more difficult to define, but does, however, always base on the formal characteristics of the thin theory, we will hence make use of the latter and resort to the thick theory if necessary.

II. Development ofRule ofLaw in China

To get an insight on the Chinese understanding of Law (fa3; if), it is further essentiel to give a small introduction on the development of what Chinese people determined as Rule of Law (fa3zhi4; kffn) through the centuries, starting from the Imperial Time to the Establishment of the Republic and People's Republic of China and the Era of Mao Zedong.

a. Imperial Rule

Speaking of the legal principles, that are inextricably linked to the imperial understanding of Law in China and that still have a deep impact on modern sense of justice, we have to regard the legal theories of Legalism as well as Confuciansm.

Legalism (fa3jial; fM) was the first major Chinese philosophical theory, that focused entirely on codified law to archieve social order. Through a system of granting awards for obedience and enforcing harsh punishments for misbehaviour, it demanded ultimate submission of all the ruler's subordinates under his authority.[4] Stating, that since the law was enforced, openly declared and generally valid to all his subordinates, an applied legalist theory would therefore meet the standards of Rule of Law is though not quite appropriate. The most influental legalist theorist and author Han Fei (Han2 Feil; H ^) does on the one hand express his will to let the law rule by itself without further state interference and advocates, that it has to be applicable to all social classes. On the other hand he is, however, strongly in favor of the nobility enacting the law solely by themself, thus creating a state in which the law merely serves as a guarantee to uphold the privileges of the upper class against social unrest, effectively Rule by Law as opposed to Rule of Law.[5]

While in Legalism, the codified Law is the everything else outruling key factor, the opposing philosophical school of Confuciansm (Ru2jial;\MM ) bases the well being of the social coexistence rather on traditional rites and ethics (li3; ijfi ) and regards the presence of human made law as indicator for declining public morals. Orthodoxe Confucianists do therefore neglect the principle of a the authorities overruling law and rely on a patriachalic monarch, that leads his subjects wisely as a father would lead his family.

Although Legalism declined soon after the downfall of the only dynasty, that implemented it as the official state doctrine - the short-lived Qin-Dynasty - it nevertheless had a deep impact on the further development of China's jurisprudence and formed alongside Confuciansm the state's understatement ofLaw till the end oflmperial reign.[6]

b. Late Empire and Republic of China

Despite occasional efforts of scholars and officials to alter the status quo, major change did not occur until the very end of Qing-Dynasty, when the empirial government realized the importance of a progressive westernized law system. Following the example of Meiji Japan, China translated European continental laws (especially from the German Empire) and attempted to codify their law.[7]

Neither being able to let go of their neo-confucian roots nor to understand the needs of the ordinary citizens, the Qing were overthrown by the Xinhai Revolution under Dr. Sun Yat-Sen (SunlZhonglShan; # ^ UU) in 1911 and replaced by the Republic of China.[8] It was then, when the Nanjing Provisional Government established the Provisional Constitution of the Republic of China (^ □ ,&□□□□ U), that cut back then ruling president Yuan Shikai's (Yuan2Shi4kai3; SWM) authority to exert power and guaranteed the idependence of the Judiciary system.[9] Since the republican forces were, however, militarily in no position to enforce the constitution, while Yuan Shikai used his potical power to widely disregarded it, Rule of Law only existed in theory, and the state soon drifted into a chaotic reign, when warlords declared their territory independent, introducing an era of continuing civil war.[10] Although reunited by Guomindang (KMT) leader Chiang Kai-Shek's Armies during the Northen Expedition in 1928, the constitution was not reinstalled. Founding a one-party rule soon after, the KMT led government was characterized by a corrupt administration and surpression of all opposing forces, soon abandoning the idea of democratic reforms till the end of nationalist control of mainland China in 1949.[11]

c. The PRC under Mao Zedong

Emerged victorious from the struggle for power with KMT, the Communist Party of China (CPC), led by Mao Zedong founded the People's Republic of China (PRC) in 1949. Outruling all laws made by the KMT administration as one of their first acts, they replaced the former constitution by the Common Program, that included citizens of all social classes in forming a new socialist society.[12 Although formally granting democratic and legal rights, especially criminal cases underwent official procedure only occasionally. Instead, mass-trials were held, that often included public denunciation from the audiance and not seldom led to the executions of the accused. After only 5 years in power, the Common Program, was soon replaced by the 1954 constitution. Promoting a socialist nation under the leadership of the working class, the newly proclaimed constitution should lead the society to socialist economy and set up a law system modelled after the Soviet Union.[13] ;[14] It, however, was soon brought into discredit after the Sino-Soviet Split in late 1950s and was from then continuosly disregarded by the authorities and key guidelines such as the election of the National Peolple's Congress every 4 years were not adhered to. Additionally, many legal scholars, who critizised the CPC government during the 100 Blossoms Campaign in 1957 were therefore purged from office or inprisoned, leaving the law system to high party officials. The 1954 Constitution was then, hardly ten years after this campaign, absolutely nullified by the era of Cultural Revolution (1966-1976), when the whole country's institutions effectively ceased working due to Maoist Red Guard uproar against asserted rightists among the CPC senior cadres on all levels.[15] Believing the soviet inspired law would risk the archievements of the working class since the establishments of the PRC, laws were no longer enforced, courts disbanded, law schools closed and informal basic level mediation soon became the most common form oflegal procedure.[16]

d. The PRC after the Cultural Revolution

The Cultural Revolution lasted effectively till the eventual death of Mao Zedong in 1976. At that time, the 3rd constitution of 1975 had been installed, a Maoist attempt to preserve the „archievements“ of the Cultural Revolution whilst decreasing the already shortened civil rights to an absolute minimum and replacing local authorities formally by Revolutionary Comitees.[17] However, with the death Mao Zedong, the majority of party members - many of whom had to endure severe atrocities in the last decade - were eager to reinstall a functioning legal court system.[18] As a consequence, leading heads of the Cultural Revolution - commonly known as the Gang of Four - got arrested in the very year and trialed in 1981 for anti-party crimes as well as the estimated death of over 1 milion people during their reign.[19] Furthermore, a new constitution replaced the one from 1975 only 3 years later, reinstalling the greater part of the 1954 Constitution and emphasizing on the need of Socialist Democracy.[20]

[...]


[1] Report for Selected Countries and Subjects. World Economic OutlookDatabase, October 2013. International Monetary Fund. Retrieved October 22, 2013.

[2] Tamanaha, Brian Z. (2004). On the Rule ofLaw. Cambridge University Press. p.9.

[3] Tamanaha, Brian Z., The Rule ofLaw for Everyone?. St. John's Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=312622

[4] Watson, Burton, trans., Basic Writings, Han Fei Zu, pp. 28-29.

[5] Xiangming, Zhang; On Two Ancient Chinese Administration Ideas: Rule of Virtue and Rule by Law, The Culture Mandala: Bulletin of the Centre for East-West Cultural and Economic Studies, 2002.

[6] LeFande, Matthew August; Aspects of Legalist Philosophy and the Law in Ancient China: The Chi'an and Han Dynasties and Rediscovered Manuscript of Mawangdui and Shuihudi; via http://www.lefande.com/AncientChinaLaw.htm

[7] Yu Jiang, "Jindai Zhongguo faxue yuci de xingcheng yu fazhan" "Formation

and development of modern Chinese legal language and terms"] in Zhongxi falu chuantong

"Chinese and Western Legal Tradition"], vol. 1 (Beijing: Zhongguo zhengfa daxue chubanshe, 2001).

[8] Trocki, Carl A. (1999). Opium, empire and the global political economy: a study of the Asian opium trade, 1750­1950. Routledge. p. 126. ISBN 0-415-19918-2.

[9] Provisional Constitution of the Republic of China, via http://www.gongfa.com/linshiyuefa.htm (Chinese).

[10] Fenby, Jonathan, Chiang Kai Shek: China's Generalissimo and the Nation He Lost, Da Capo Press, 2009, p.136-138.

[11] Fung, Edmund; In Search of Chinese Democracy: Civil Opposition inNationalist China, 1929-1949 (Cambridge; New York: Cambridge University Press, 2000, p.30.

12 Common Program of the People's Political Consultative Conference, via: http://e- chaupak.net/database/chicon/1949/1949e.pdf

13 Constitution of the People's Republic of China (1954), Article 1, via: http://e- chaupak.net/database/chicon/1954/1954bilingual.htm

14 Cohen, Jerome Alan (1978). "China's Changing Constitution". The China Quarterly (76): pp. 794-841.

15 Cohen, (1978).

16 Cohen, (1978).

17 Cohen, (1978).

18 Peerenboom, Randall; China's Long March towards Rule of Law; Cambridge University Press, Cambridge, 2002, p.55.

19 MacFarquhar, Frederick, Shoenhals, Michael; Mao's Last Revolution; Belknap Press ofHarvard University Press, 2006, p. 258.

20 Cohen, (1978).

Excerpt out of 7 pages

Details

Title
Rule Of Law in China
Subtitle
Historical Introduction, Present Status, Future Prospects
College
China University of Political Science and Law
Course
Introduction to Chinese Law
Grade
2,0
Author
Year
2013
Pages
7
Catalog Number
V272053
ISBN (eBook)
9783656633082
ISBN (Book)
9783656633075
File size
413 KB
Language
English
Tags
China, Rule of Law, Politik, Ostasien, Verfassung, Menschenrechte, Bürgerrechte, Sinologie, Jura, Recht, Rechtsvergleichung, Internationales Recht, Öffentliches Recht, Verfassungsrecht
Quote paper
Tim Alexander Hagemann (Author), 2013, Rule Of Law in China, Munich, GRIN Verlag, https://www.grin.com/document/272053

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