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Chinese Politics and the New Theory of “Rule of Law”*

Published online by Cambridge University Press:  12 February 2009

Ronald C. Keith
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Extract

In light of widespread western condemnation of the Tiananmen Square event, it may seem somewhat capricious to raise the issue of the “rule of law” as it is understood in China; however, prior to 4 June the Chinese Communist Party sanctioned a provocative theoretical debate which featured the “rule of law” as opposed to the “rule of man.” Even though the Chinese rule of law derived self-consciously from Chinese ideology and history, it seemed to parallel loosely the substantive concern in the western theoretical notion of “government of laws, not men.”

Type
Research Notes
Information
The China Quarterly , Volume 125 , March 1991 , pp. 109 - 118
Copyright
Copyright © The China Quarterly 1991

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References

1. Dicey, A. V., Introduction to the Study of the Law of the Constitution (London, 1927)Google Scholar in the theoretical analysis of Hutchinson, Allan, Monahan, Patrick (ed.), The Rule of Law: Ideal or Ideology (Toronto: Carswell Press, 1987) pp. 4–7Google Scholar.

2. Potter, Stephen considers Weber's analysis in the light of developing Chinese law relating to economic contracts. See his unpublished Ph.D. thesis, “Policy, law and private economic rights in China: the doctrine and practice of law on economic contracts” (University of Washington, 1986) pp. 4–6Google Scholar.

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5. This is the language of Article 4 of the Organic Law of the People's Courts of the PRC. Exactly the same language is used in Article 126 of the State Constitution of 1982. Both passages are in Zhonghua renmin gongheguo changyong falu daquan (Compendium of Often-used Laws of the PRC) (Beijing: Falu chubanshe, 1988) pp. 19, 55Google Scholar. The two usages of “judicial independence” were explained in an interview with the Beijing constitutional expert, Gong Xiangrui, in December 1982. Gong's, view agrees with the current entries in Xianfa cidian (Constitutional Law Dictionary) (Chilin: Chilin renmin chubanshe, 1988) pp. 135, 302Google Scholar.

6. See Deng Xiaoping's 25 December 1980 comment on law and stability in “Implement the policy of readjustment, ensure stability and unity” in Xiaoping, Deng, Selected Works of Deng Xiaoping (1975–1982) (Beijing: Foreign Languages Press, 1984) p. 352Google Scholar.

7. A strict interpretation of Lenin's notion of “smashing” the old state machinery disallowed any inheritability of the laws of the old regime. In the 1980s debate over the “class” and “social” nature of law, some argued against the one-sided stress on the law's flexibility against class enemies. Zhang Hongsheng and Luo Jianping, for example, argued that since some rules of social behaviour would continue to apply even given changing productive forces and relations, some degree of “inheritability” would necessarily apply on the basis of common human recognition of natural laws, ziran guilu, governing social relations. See Hongsheng, Zhang and Jianping, Luo, “Lun fadi jiejixing he shehuixing” (“On law's class and social natures”), Zhengfa luntan (Politics and Law Forum), No. 2, 08 1986, pp. 4–5Google Scholar.

8. “Buxu quangai renmin fayuandi xingzhi” (“Changing the nature of the people's court is not allowed”), Renmin ribao, 24 September 1957. 1 should like to thank Lin Sen for bringing this article to my attention.

9. As cited in Keith, Ronald C., “Socialist legality and proletarian democracy in the People's Republic of China,” Canadian Journal of Political Science, Vol. XIII, No. 3, 09 1980, p. 572Google Scholar.

10. For example see “Completely smash the feudal, capitalist and revisionist legal systems,” U.S. Consulate General, Hong Kong, Survey of China Mainland Magazines, 3 September 1968, No. 625, pp. 23, 26.

11. Xiaoping, Deng, “Emancipate the mind, seek the truth from facts and unite as one in looking to the future,” Selected Works of Deng Xiaoping, pp. 157–58Google Scholar.

12. Ibid.

13. Deng Xiaoping wenxuan (Selected works of Deng Xiaoping) (Hong Kong: Sanlian shudian/Renmin chubanshe, 1983) p. 137Google Scholar. There are several overviews of Deng's view of the “rule of law,” for example see Wang He, “Shilun Deng Xiaopingdi fazhi jianshe sixiang” (“Examining Deng Xiaoping's thought on the rule of law”) in Zong, Yue and Zhi, Xin (eds.), Dui Deng Xiaoping yu lilun yanjiu huibian (Collection on Deng Xiaoping and Theoretical Research) (Beijing: Zhonggong dangshi ziliao chubanshe, 1988) pp. 183–206Google Scholar and Liu Peng, “Fazhi sixiang” (“Legal thought”) in Lansun, Zhang and Peng, Liu (eds.), Deng Xiaopingdi sixiang lilun yanjiu (Theoretical research of Deng Xiaoping's thought) (Beijing: Zhongguo shuji chubanshe, 1988), pp. 104–118Google Scholar.

14. See Fei's, preface to A Great Trial in Chinese History (Beijing: New World Press, 1981) pp. 7, 9Google Scholar.

15. Peng's, speech is extracted in Fazhan shehuizhuyi minzhujian quan shehuizhuyi fazhi (Develop Socialist Democracy and Establish Socialist Legality) (Beijing: Falu chubanshe, 1988) p. 123Google Scholar.

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18. Xin, Zhang discusses the history of this issue in Zhongguo fazhizhi xianguang ji gaige (Conditions and Reform of China's Legal System) (Singapore: Mingbao chubanshe, 1989) p. 17Google Scholar.

19. Fengju, Zhou, “Fan danzhun shi jieji douzheng gongju ma?” (“Is law simply an instrument of class struggle”), Faxue yanjiu (Studies in Law) No. 1, 1980, p. 40Google Scholar. Zhou was attacked in Han, Liu and Daying, Wu. “Ye tan fadi jiejixing” (“More on the class nature of law”), Faxue yanjiu, No. 3, 1980, pp. 9–16Google Scholar.

20. Many of the related articles are reprinted in the compendium published by the People's University entitled, Fuyin baokan ziliao (Duplicate Journal Materials), under the series title, Faxue (Legal Studies).

21. During September-October 1989 I interviewed the following experts on legal change and the “rule of law”: Beida law professors Gong Xiangrui (constitutional expert), Zhang Guohua (president, Chinese Legal History Association), Shen Zongling (expert in comparative law); Renda law professors Sun Guohua (theorist), Wu Lei (vice-general manager, Criminal Procedural Law Institute), Gao Mingxuan (criminal law expert and vice-president, China Law Society), Han Yusheng (vice-dean, Law Department); Wu Daying (director, Institute of Political Science, Chinese Academy of Social Sciences (CASS)); Li Buyun, Institute of Law, CASS, and a general editor of Faxue yanjiu; Liu Han, Institute of Law, CASS; Xu Chongdi, vice-president, Political Science Association and Constitutional Law Society; Yao Kerning, Beijing Higher People's Court Judge and director of the court's research department; Wang Huaran, deputy general-secretary, All-China Lawyers' Association.

22. Guohua, Sun, “Chuji duanjiedi fazhi: gainian he tedian” (“The legal system in the primary stage: the concept and its characteristics”), Falu xuexi he yanjiu (Legal Studies and Research) No. 6, 1988, pp. 15–19Google Scholar.

23. Zhengmao, Ni, “Lun zhengzhi tizhi gaigedi fazhi xuyao” (“The requirements of the legal system in political restructuring”), Faxue jikan (Law Science Quarterly) Chongqing, No. 2, 1987, p. 3Google Scholar.

24. Xin, Zhang discusses this conference in Conditions and Reform, p. 15Google Scholar. Some commentators opposed the changed wording; for example, see Qianghua, Wang, “‘Yi fa zhi guo’ di kouhao meiyou zuo,” (“The ‘rule-by-law state’ slogan is not mistaken”), Faxue (Law Science) Shanghai, No. 71, 10 10 1987, pp. 14–16Google Scholar.

25. See Dick's, Anthony discussion of this in “The Chinese legal system: reforms in the balance,” The China Quarterly, No. 119, 09 1989, p. 543Google Scholar.

26. Xiaoping, Deng, Fundamental Issues in Present-Day China (Beijing: Foreign Languages Press, 1987) p. 146Google Scholar.

27. Ibid.

28. Xunzi's middle position is discussed in Bodde, Derk and Morris, Clarence (eds.), Law in Imperial China (Cambridge, Mass.: Harvard University Press, 1967), p. 22CrossRefGoogle Scholar.

29. Xin, Zhang, Conditions and Reform, p. 16Google Scholar.

30. Buyun, Li and Liming, Wang, “Renzhi he fazhi neng huxiang jiehe ma?” (“Can the rule of law and rule of man be combined?”), Faxue yanjiu, No. 2, 1980, p. 45Google Scholar.

31. Liming, Wang, “‘Yi fa zhi guo’ fazhi,” Renmin ribao, 27 02 1989Google Scholar.