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China's Legal Awakening

China's Legal Awakening: Legal Theory and Criminal Justice in Deng's Era

Carlos Wing-hung Lo
Copyright Date: 1995
Pages: 402
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  • Book Info
    China's Legal Awakening
    Book Description:

    After decades of nihilistic rule under Mao Zedong, can legal order be restored in China? How successful is Deng Xiaoping's initiative in developing a socialist legal system? Where is China on its road to the 'rule of law'? This book illustrates - through the analysis of more than two hundred criminal cases selected from Minzhu yu fazhi (Democracy and the Legal System) in the period 1979-89 - that the establishment of a formal criminal justice system and the development of an embryonic socialist theory of law in China reflect a genuine and widespread legal awakening. A rudimentary legal culture has taken hold among Party leaders, cadres, judicial personnel, intellectuals and the general public. Nevertheless, the contradiction between legal order and Party supremacy remains, as demonstrated by the June Fourth incident in Beijing and the ensuing trials of the 1989 dissidents.

    eISBN: 978-988-220-065-4
    Subjects: Law

Table of Contents

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

    The study of law in the Chinese People’s Republic is both frustrating and exciting. Frustration derives from the fact that the dominant ideology in the Chinese People’s Republic combines very uneasily four positions on law. The first of these is a communitarian view which sees recourse to law (fa) as evidence of the failure of prescribed social mores (or li). The second is an ultra-humanistic view which reduces all legal statutes and acts simply to the actions of legislators (according to which view the ‘rule of law’ is impossible). Thus law may be seen only in a positivistic sense (no...

  4. Preface
    (pp. ix-xii)
    Carlos Wing-hung Lo
  5. Introduction
    (pp. 1-14)

    More than a decade has passed since Deng Xiaoping commenced restructuring the Chinese legal system. In December 1978, a sweeping judicial reform was inaugurated with the promulgation of the Communiqué of the Third Plenum of the Chinese Communist Party’s Eleventh Central Committee. This condemned the previous legal nihilism and affirmed that law is essential for ‘socialist modernization’. There followed the codification of law, revision of the Party and State Constitutions, reorganization of judicial organs and the revival of legal studies. Deng Xiaoping strove hard to replace the past practice known as the ‘the rule of persons’ by ‘the rule of...

  6. Part One Marxism in Deng’s China

    • Chapter One The Impact of Ideological Upheaval on the Legal System in China
      (pp. 17-32)

      Marxist ideology has been in a state of ferment since 1978. The debate on the criterion for evaluating truth in that year sparked off an enthusiastic discussion of Communist ideology.¹ That ideological contention gathered momentum as the Party adopted a more liberal attitude on the ideological front at the end of 1978.² In the ensuing years, China embarked on a process of de-Maoification.³ This gave rise to ideological disputes unparalleled in the history of the People’s Republic of China, with regard to duration, intensity and depth.

      Ideological upheaval can be traced back to 1977, the year Deng Xiaoping was rehabilitated....

    • Chapter Two Deng Xiaoping’s Ideas on Law
      (pp. 33-42)

      In an effort to remove the Maoist legacy of hostility towards law, Deng Xiaoping broke through the tendency towards legal nihilism and the so-called dominance of the ‘two whatevers’ in the aftermath of the Cultural Revolution. As a prominent victim in the heyday of lawlessness, he realized how miserable a country could be without law and democracy. Reviewing the past thirty years, Deng had spelt out the position that there was an urgent need for an impersonal, highly institutionalized legal system with a complete set of legal codes, even before he emerged as the supreme Party leader at the Third...

    • Chapter Three Chinese Jurists’ Perspectives on Law
      (pp. 43-68)

      The preceding chapter examined Deng Xiaoping’s ideas on law. This chapter will discuss jurists’ perspectives on law in post-Mao China. First, it will describe debates on ‘the rule of persons’ versus ‘the rule of law’ and the relationship between law and policy. It will then depict jurists’ examination of the Chinese Marxist jurisprudence and consider arguments about the nature of law. Finally, the concept ‘a socialist legal system with Chinese characteristics’ will be discussed.

      At Deng’s instigation, the receptive attitude towards law and democracy taken in the Communiqué of the Third Plenary Session of the Eleventh Central Committee of the...

  7. Part Two Legal Reform and the Practice of Law:: Case Studies in the Administration of Criminal Justice, 1979-1989

    • [Part Two Introduction]
      (pp. 69-72)

      As mentioned above, case materials are selected from Minzhu yu Jazhi from the first issue of 1979 to the sixth issue of 1989. In considering legal reform, these ten-and-a-half years under study will be divided into four periods. Since the scope of this study goes beyond criminal justice, each chapter on case studies will start with a documentary analysis of the state of legal construction in general and the criminal justice system in particular in each of the periods. At the end of each of these four chapters, there will be a summary of the case material, followed by overall...

    • Chapter Four In the Wake of the Third Plenum: The Inception of Legal Reform
      (pp. 73-86)

      As we have seen, a strong commitment to establishing a legal order, expressed by the Party in the wake of the 1978 Third Plenum, resulted in priority being given to the establishment of a socialist legal system. The task was urgent, since the old legal system was in disarray; laws had lost their legitimacy and hence their binding power. Moreover, the judicial system, provided by the 1978 Constitution, was nothing more than a sham. In trying to rescue China from lawlessness, the Party faced formidable obstacles, including its loss of legitimacy after a long period of failing to keep promises....

    • Chapter Five The Prelude to Legal Order: The Inauguration of Criminal Justice, 1980-82
      (pp. 87-132)

      The year 1980 was significant in the development of legal order in China. The National People’s Congress busied itself with legislation; the scope of law-making extending to civil and economic laws and most important of all, the enforcement of criminal law according to the over-arching Criminal Procedure Law. Under scrutiny was the institutional strength of the existing system in dispensing justice; and the trial of the ‘Gang of Four’ demonstrated the end of the previous period of lawlessness.

      As noted, Party organs were mobilized to ensure the realization of the rule of law in the course of the legal reform....

    • Chapter Six On the Threshold of Legality: 1983-85
      (pp. 133-190)

      The year 1983 was a watershed year. The adoption of the 1982 state Constitution brought legal security within China’s reach. Unequivocally and unprecedentedly the Constitution was declared ‘supreme’:

      All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct. They have the duty to uphold the dignity of the Constitution and ensure its implementation.¹

      More precisely, the Constitution stated: ‘no organization or individual may enjoy the privilege of being above the Constitution and the law’.²

      This marked the beginning of the...

    • Chapter Seven Legal Reform in Progress: The Emergence of a Legal Society, 1986-89
      (pp. 191-244)

      After 1986, legal reform moved toward consolidation. Optimism about the developmement of a legal order took hold as Deng Xiaoping and the Chinese leadership insisted that forging a socialist legal system went hand in hand with socialist construction and modernization in general.¹ The direction of legal reform was clear.

      However, the future of the entire reform programme seemed threatened when Hu Yaobang, a prime symbol of the reform movement, was forced to step down from the post of Party General Secretary in January 1987, following the student movement at the end of 1986. The ensuing nationwide campaign to ‘combat bourgeois...

  8. Part Three Towards a Chinese Socialist System and a Chinese Theory of Law

    • Chapter Eight Principles, Theory and Practice of Socialist Law in the First Decade of Legal Reform
      (pp. 247-270)

      The preceding chapters argued that legal reform and the revival of legal studies in China derived inspiration from the ideas of Deng Xiaoping. The development of a Chinese legal system owed much to him; and it was his views which sparked off jurisprudential debates. Deng’s aim was to invigorate the orthodox ‘Marxist theory of the state and law’, a task long hampered by the Cultural Revolution. Yet Deng was concerned mainly with practicalities and did not provide a coherent set of legal principles; nor did his ideas have the same authority as those of Mao. Though, not always clear of...

    • Chapter Nine The 1989 Student Democratic Movement: A Legal Perspective
      (pp. 271-296)

      The Chinese socialist legal system developed steadily after its re-establishment by the Third Plenum in 1978, according to Deng Xiaoping’s vision of political stability. A framework was secured for building socialism in a peaceful environment. For more than a decade, Communist Party leaders tried to reconcile Chinese Marxism with a positive notion of socialist law and for more than six years, 1983-89, the Party attempted to graft the political system on to a constitutional scheme. Current legal reform was based on the hope that China was heading towards a comprehensive socialist legal order. But encouraging signs that China was turning...

    • Chapter Ten Trials of Dissidents of the 1989 Democratic Movement: the Limits of Socialist Justice
      (pp. 297-322)

      From the point of view of Deng and the hard-liners, the military crack-down was a successful operation, since China regained its ‘hard-won’ political stability — the régime’s ‘highest interest’.¹ As in all crisis situations, the Four Cardinal Principles provided the basis for Party leadership.² Since order was stabilized, the newly reorganized Party was ready to resume intermittent socialist reform, along lines adopted by the 1978 Third Plenum.³ The Party reiterated the policy of economic construction and strengthening democracy and the legal system.⁴ Yet most observers of China signalled the ouster of Zhao as the end of the liberal era in China,⁵...

  9. Conclusion
    (pp. 323-328)

    This study, covering the longest period of political stability enjoyed by China under Communist rule (1979-1993), has argued that China has entered an age characterized by the rule of law. A highly institutionalized legal system has been built up which functions on the basis of socialist legality. The Communist régime has undergone a legal awakening in which both Party leadership and popular masses have seen that the ‘rule of law’ is a sound alternative to the former disastrous ‘rule of persons’. Political stability secured by legal order, above all, marks off Deng Xiaoping’s era from that of Mao Zedong. Despite...

  10. Appendix 1 Structure of the Criminal Justice System of the People’s Republic of China
    (pp. 329-330)
  11. Appendix 2 Law and Regulations of the People’s Republic of China for Criminal Justice, 1949-1993
    (pp. 331-338)
  12. Glossary
    (pp. 339-348)
  13. Bibliography
    (pp. 349-364)
  14. Index to Case Studies
    (pp. 365-368)
  15. Index
    (pp. 369-388)