In the Name of Justice

In the Name of Justice: Striving for the Rule of Law in China

Foreword by John L. Thornton
Introduction by Cheng Li
Copyright Date: 2012
Pages: 230
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  • Book Info
    In the Name of Justice
    Book Description:

    Of all the issues sparked by China's ongoing economic and sociopolitical transformation, the development of the Chinese legal system is arguably the most consequential. Even as public demand for the rule of law grows, the Chinese Communist Party still interferes in legal affairs and continues its harsh treatment of human rights lawyers and activists. Both the frequent manifestations of social unrest in recent years and the growing tension between China's various interest groups underscore the urgency of developing a sound and sustainable legal system.

    One encouraging trend is the rapid expansion of the Chinese legal profession. Lawyers and legal scholars are no longer considered state officials, as they were in China's recent past. Now they boast an unprecedented degree of political autonomy and a steadily increasing level of professionalism.

    In the Name of Justicepresents a critical assessment of the state of Chinese legal reform by He Weifang, the country's leading liberal law scholar. Professor He has been at the forefront of the country's bumpy path toward justice and judicial independence for more than a decade. His bold remarks at the famous New Western Hills Symposium in 2006, including his assertion that "China's party-state structure violates the PRC Constitution," are considered a watershed moment in the centurylong movement for a constitutional China. In addition to a selection of the author's academic writings, the volume also includes many of Professor He's public speeches, media interviews, and open letters, which provide more insight into his dual roles as thinker and practitioner in the Chinese legal world.

    He Weifang also offers a historical review of the evolution of Chinese traditional legal thought, enhanced by cross-country comparisons. Among the volume's many topics are judicial independence, judicial review, legal education, capital punishment, and the legal protection of free speech and human rights. A proponent of reform rather than revolution, Professor He believes that the growing institutionalization of factional checks and balances within the Party leadership may represent important steps toward democracy. In his view, only true constitutionalism can guarantee social justice and enduring stability for China.

    eISBN: 978-0-8157-2291-5
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-xii)

    I have long believed that the rule of law is a critical civic virtue for the development of a just and thriving society. It is a view I have held in particular about China since the beginning of my involvement with the country more than twenty years ago. In those days, my enthusiasm for the topic was not usually matched by the Chinese officials with whom I interacted, but I felt confident that their views would change over time as China opened up to the world, especially the commercial world that would increasingly demand legal clarity as a condition for...

  4. Acknowledgments
    (pp. xiii-xvi)
    He Weifang
  5. Introduction Fighting for a Constitutional China: Public Enlightenment and Legal Professionalism
    (pp. xvii-l)

    One evening in the fall of 2011, almost five months before the dramatic downfall of heavyweight political leader Bo Xilai, I sat in an auditorium at the Law School of Peking University listening to a panel discussion on China’s judicial reforms.¹ The Beida Law Society, a student organization on campus, sponsored this public forum featuring He Weifang and Xu Xin, two distinguished law professors in Beijing.² The auditorium was crowded with several hundred people (mainly students and young faculty members but also some Chinese journalists). As I listened to this engaging and enlightening discussion, it occurred to me that I...

  6. PROLOGUE An Open Letter to Legal Professionals in Chongqing
    (pp. 1-6)

    Dear Colleagues in the Chongqing Legal World:¹

    For more than a year now I have wanted to write an open letter to discuss my views on the “campaign against the underworld” in Chongqing.² But because I had already written quite a number of commentaries on my own blog and for various media outlets, I feared I might make carping remarks or get all twisted up in an open letter, so I wrote the idea off. Several recent trends in Chongqing are nagging causes for anxiety. In my view, the various things that have happened in that city, however, may already...

  7. PART I Judicial Independence:: China’s Treacherous Path

    • CHAPTER ONE The Ongoing Quest for Judicial Independence in Contemporary China
      (pp. 9-39)

      On September 23, 1821, an accident occurred while an American ship from Baltimore, namedEmily, was loading cargo in Guangzhou. A woman on a nearby boat fell into the water and drowned. Her family accused a crewmember from theEmily, Francis Terranova, of hitting the woman with an earthen jar, which caused her death. The Americans insisted that the woman fell into the water inadvertently and Terranova had nothing to do with her death. The local magistrate of Panyu County heard the case on October 6 on the shipEmily, where the trial was held. According to British scholar Hosea...

    • CHAPTER TWO Mencius on the Rule of Law
      (pp. 40-60)

      In what follows I would like to discuss the legal dimension of Mencius’s thought and, more broadly, the relevance of Confucianism to the development of China’s rule of law today. The relationship between Confucian teaching and the rule of law has captured the imagination of Chinese intellectuals in recent years—actually, I should say ever since 1840. For more than a century, we Chinese have been grappling with the issue of how to strike a balance between the tradition we inherited and the modernity we seek. A good example is the May Fourth Movement and its stirring slogan “Down with...

  8. PART II Constitutionalism and Judicial Review

    • CHAPTER THREE China’s First Steps toward Constitutionalism
      (pp. 63-100)

      Zhang Shaoyan, moderator: Dear students, distinguished guests, ladies and gentlemen, good evening! It gives me great pleasure to introduce this evening’s guest speaker, Professor He Weifang! [Applause] A graduate of the class of ’78 from our university, Professor He is no stranger to this audience. Like many of you, I am also an ardent admirer of his. Professor He really needs no introduction, but let me just highlight one thing about him: he was named byChina Youthmagazine in 2001 as one of the most influential youths who would shape the future of China in the twenty-first century! [Applause]...

    • CHAPTER FOUR Constitutionalism as a Global Trend and Its Impact on China
      (pp. 101-124)

      Many Western-educated, enlightened Chinese intellectuals in modern China, most notably Yan Fu, advocated that China should learn from the West not only in building warships and armaments but also in developing sound legal and political systems. That is, we should look beyond the outer strengths of Western powers to see their institutional and cultural contexts, which foster such strengths. We came to notice the existence and great significance of a constitution in these countries very early, and made various efforts toward constitutionalism, including the formulation of a quasi-constitution after the manner of the West in the late Qing dynasty. Since...

    • CHAPTER FIVE Remarks Given at the New Western Hills Symposium
      (pp. 125-130)

      I am from the Law School of Peking University and a colleague of that professor [Gong Xiantian], just mentioned by President Gao [Gao Shangquan], who wrote an open letter against the adoption of the Real Right Law.¹ We are quite a unique pair in the school, especially during the dissertation defense of law students, when he would choose the seat at the left end while I would sit at the right end. This often causes big trouble for the students who keep looking to the left and then to the right, at a loss on how to answer our questions,...

  9. PART III The Expansion of Legal Education and the Legal Profession

    • CHAPTER SIX China’s Legal Profession: The Emergence and Growing Pains of a Professionalized Legal Class
      (pp. 133-143)

      The process of constructing the rule of law in China has been ongoing since the late 1970s. During this transitional “post–Mao Zedong” era, many factors have influenced China’s quest for the rule of law, such as still-viable socialist theories; the historical inertia of various institutions built on these theories; the emerging market economy’s need for a unified, stable, and predictable legal system; the directional uncertainties posed by the diversity of imported knowledge; and the difficulties posed by a virtually static political system.

      In this chapter, I wish to emphasize how the current difficulties we face in building institutions relate...

    • CHAPTER SEVEN Foreign Models and Chinese Practice in Legal Education during the Reform Era
      (pp. 144-172)

      Lü: A university’s academic atmosphere often has a huge influence on its students. You served as a visiting scholar at Harvard University for some time and experienced typical American or Anglo-American legal education, so I think you are well positioned to give us an informative introduction to Anglo-American legal education, like that offered by the Law School of Harvard University, as related to curriculum, sources of students, campus study, teaching methods, career directions of graduates, and so forth.

      He: I did not stay there for long—only seven months—though, of course, I did get an impression of the legal...

  10. PART IV The Legal Protection of Free Speech

    • CHAPTER EIGHT Freedom of the Press: A Necessary Condition for Social Stability in China
      (pp. 175-180)

      Southern Weekend: The government is something of an agent who likes to be praised. If a country’s media are full of the sound of praise, do you think it is a good thing for the government?

      He Weifang: It is definitely not a good thing. It is true that the government is like an agent in some ways, and the government is a multilayer system comprising the central government, local governments, and grassroots governments. It is very important for governments at higher levels to have effective control of governments at lower levels. In the absence of such effective control, the...

    • CHAPTER NINE An Open Letter to the CCP Politburo Standing Committee Regarding Media Censorship
      (pp. 181-188)

      Dear Secretary General Hu Jintao, Dear Members of the Standing Committee of the CCP Central Committee,

      We are writers for theChina Youth Daily’sFreezing Pointsweekly.¹ On January 24, 2006, the Propaganda Department of the Communist Youth League Central Committee decided, on grounds that this weekly had published an article by Professor Yuan Weishi that considered modern Chinese history and history textbooks in a new light and that “created a negative influence on society and drew sharp criticism from relevant departments of the Central Committee,” to issue critical reports to that newspaper’s editor-in-chief and the chief editor of the...

  11. PART V The Legal Protection of Human Rights

    • CHAPTER TEN Challenging the Death Penalty: Why We Should Abolish This Barbaric Punishment
      (pp. 191-215)

      The topic I would like to discuss with you this evening is a heavy one; it’s the death penalty. As we know, the death penalty is a focal issue in many countries around the world. As a matter of fact, the death penalty has been abolished or basically abolished in more than 120 countries worldwide. In other countries, such as the United States—a rare case among developed countries—the death penalty is still pronounced and executed. According to a recent news report, since 1976, when the death penalty was reinstated, a total of 1,000 executions have been performed in...

    • CHAPTER ELEVEN A Plea for Genuine Political Progress in China
      (pp. 216-220)

      Deutsche Welle: Professor He, you jokingly complained at the beginning of your speech earlier that the organizer inviting you to Germany did not tell you beforehand that the program’s main subject is Tibet. So let’s start our interview with this issue. Do you agree that the West’s strong reaction to the issue of China’s presence in Tibet is due to the media’s biased reporting?

      He Weifang: I think the West’s recent strong reaction is the culmination of the interaction between China and the West in the past several years. Since the middle of the 1980s, China has been a popular...

  12. Notes
    (pp. 221-250)
  13. Further Reading: The Writings of He Weifang, 1984–2010
    (pp. 251-256)
  14. Index
    (pp. 257-269)
  15. Back Matter
    (pp. 270-271)