Chinese Law Research Paper

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China’s modern legal institutions reflect powerful political, economic, and social forces that have struggled to shape them since the latter part of the nineteenth century. For thousands of years, before the last dynasty fell, cultural values in the world’s oldest continuous empire were inhospitable to ideals of ‘rule of law’ that evolved slowly in the West. In the Republic (1911–49) formal legal institutions were only superficially borrowed from abroad. From 1949 to 1979 the Maoist party-state reduced law to the merest tool of totalitarian politics. Mao’s successors launched economic reforms in 1979 that have led to the creation of the most significant legal institutions in Chinese history, but at the end of the twentieth century traditional values endured, the ideology and the apparatus of the party-state remained in place, governmental institutions were disorderly, and the economy in flux. The new institutions can grow in strength and legitimacy only if they receive sustained and powerful political support from China’s leadership and greater recognition in the legal culture of China’s officials and its populace.

1. The Chinese Legal Tradition

Contemporary Chinese institutions should be viewed in light of profound differences between Chinese and Western legal history. Imperial China blended law and morality in contrast to Western Europe, where secular and sacred authority were separated early. The dominant cult and philosophy of Confucianism emphasized governance by men who acquired moral authority by emulating ancient sages in setting virtuous examples of benevolence and social rightness for their subjects to follow. Law was regarded as a set of inferior norms that supplemented more basic principles, especially rules of propriety (li) that differentiated individuals according to their status as determined by age and rank in family and society. Confucianism was briefly rivaled by the early philosophical school of Legalism, which stressed the need for harsh penalties using positive law ( fa) to deter wrongdoing, but both schools shared a vision of society in which proper behavior derived from an individual’s status in the hierarchies in which he or she lived.

Law was first codified in the Qin Dynasty (third century BC) and recodified and augmented by a complex body of regulations in subsequent dynasties, notably in the Tang and Ming. Principally penal, it unambiguously reinforced ideas of hierarchy and subordination and was addressed to officials, not to the populace. It was enforced by local county magistrates without legal training or expertise, as part of their general duties to govern on behalf of the emperor. Specialized institutions for adjudication like the centralized judicial systems that developed over centuries in the West were absent, although there were unofficial legal specialists at provincial and central levels. The outcomes of cases had to be substantively correct according to both law and Confucian morality. The concerns for procedural justice and uniformity of results that have come to mark Anglo-American law were absent.

The Chinese state exercised its rule mostly in an indirect manner, through local elites—landowners, family heads, and village elders—which enforced local customs. The concept of personal rights did not develop because the basic units of society were not individuals but rather the collectivities of family, clan, village, and guild. Economic transactions arose and were enforced largely in the context of custom governed relationships. The official philosophy exerted strong social pressure in favor of mediation and compromise. Litigation before the magistrates was time-consuming, degrading, and costly. Civil disputes were common, nonetheless, but most were settled extra-judicially. Unlike the West, where lawyers emerged, any tendency for legal specialists to act as intermediaries between individuals and the state was actively discouraged, although in the late Qing men who facilitated litigation, albeit tarred as ‘litigation tricksters,’ did flourish.

From the mid-nineteenth century until 1949, when the People’s Republic of China (PRC) was established, sporadic and inconsistent attempts were made to transplant foreign legal institutions. These failed to take root since they were often too complex as well as being irrelevant to Chinese conditions. China established its first professional bar during the Republican period, but lawyers’ training and qualifications were uneven and their standards of professional behavior low. Judges were both few and poorly educated, and judicial professionalism and independence were weakened by corruption and favoritism. The authoritarian Nationalist Party undercut the spirit of the new legal reforms.

2. The People’s Republic Of China

2.1 Maoism, 1949–79

Under Mao Zedong the Chinese Communist Party (CCP) mounted extensive programs of economic reconstruction and social change, relying on both previous experience in ruling large areas before 1949 and on Soviet models, which entwined state institutions with the Party. Law was used as a political tool, along with mass organizations and propaganda media, to mobilize the populace to carry out policies. The criminal process was declared an instrument to exercise ‘dictatorship’ over members of the former exploiting classes, and sanctions frequently varied according to political ‘campaigns’ and policies of the moment. Systematized codes of criminal law or criminal procedure were lacking, and the courts merely formalized findings of guilt by the police and the procuracy, which was a prosecutorial agency. The police could impose sentences of as long as four years without any judicial involvement.

The collectivization of almost all private property left little scope for noncriminal law. In the planned economy, disputes between state-owned enterprises were resolved informally through flexible, highly pragmatic attempts to adjust problems without fixing legal blame. Disputes among individuals were usually dealt with through mediation. Mediation committees that formed part of a totalitarian control apparatus which penetrated deeply into Chinese society were charged with attaining politically correct results that would benefit socialist construction and strengthen the party-state’s control over ‘bad elements.’ Politicization was not total, of course; traditional attitudes among mediators and the populace persisted.

Mao and other leaders, determined to speed continued revolution and social change, refused to regularize law and administration. The Cultural Revolution (1966–76), further reduced the relevance of legal institutions that had already been politicized. After the overthrow of the ‘Gang of Four’ in 1976, the lawlessness of the Cultural Revolution moved their successors, led by Deng Xiaoping, to advocate adoption of orderly legal institutions. An era of reform began, and since then law has risen to greater prominence than ever before in Chinese history.

2.2 Reform Since 1979

Legal reform has been driven by the economic reforms that began in 1979 and have unfolded irregularly but irreversibly. A growing and increasingly differentiated non-state sector has been created and modernization has been aimed at constructing a ‘socialist market economy,’ including a legal system. China’s departure from previous Maoist disregard for formal legislation has led to one of the greatest outpourings of legislation in history.

The structure of the Chinese state has been defined in a Constitution and in ‘organic’ laws dealing with key state institutions such as the courts and central and local legislative bodies; the General Principles of Civil Law, a partial civil code intended to mature into a comprehensive one; ‘basic’ laws such as codes of criminal law and criminal procedure; and enactments by the central government, subnational units, and by central ministries and their local branches. These define newly recognized economic relationships and participants in expanding markets and address regulatory problems generated by economic reform. Much legislation, however, has been incomplete and ad hoc as new economic policies appeared, reflecting the difficulties that the leadership has had in defining the direction of economic reform. There is a continuing struggle between concepts of law as a framework for economic activity by autonomous actors and as an administrative instrument.

Extensive legislation also signals China’s participation in a global economic community. Direct foreign investment has been addressed by legislation on various investment vehicles and their operation, as well as on such matters as intellectual property, labor, customs, foreign exchange, bank lending and guaranties, and export and import licenses. A taxation system has been established. China has acceded to an extensive range of international agreements, such as the UN Convention on the International Sale of Goods, whose rules have become part of Chinese law.

2.2.1 Building A Judicial System. The courts, formerly scorned as ‘rightist’ institutions at the end of the 1950s and as ‘bourgeois’ during the Cultural Revolution, have been rebuilt in a four-level hierarchy. The number of civil and economic disputes brought to the courts rose from 2.4 million cases in 1990 to 5.7 million in 1999, while the number of disputes brought to mediation committees declined from 7.4 million in 1990 to 5.1 million in 1999. Growing reliance on contracts and the increase in litigation suggests increasing acceptance of concepts of law-based rights.

The Chinese judicial system presents many problems at the beginning of the twenty-first century. Judges are poorly trained, and most still lack a complete legal education despite efforts to raise their educational qualifications. Over half of the cases brought to the courts are resolved through judicial mediation rather than adjudication of competing claims and rights. Judges often prefer to resolve cases by mediation to avoid reversal by a higher court; lower courts, fearful of being reversed, sometimes request instructions from a higher court before they issue a judgment, thereby rendering meaningless the right of unsuccessful parties to appeal. The finality of judgments is impaired by legislation permitting noncriminal decisions to be reopened within two years after they become effective. Sometimes, too, higher courts reviewing the quality of the work of lower courts reopen decisions even though they have already taken legal effect. The role of judges has been defined only ambiguously, and adjudication has not been significantly differentiated from decision making by administrative agencies in the course of implementing policies.

The independence, powers, and effectiveness of the courts have been constrained by the requirement that they follow CCP policies. In 2000, over 70 percent of judges were members of the CCP and the principal affairs of the courts, including personnel matters, were directed by Party organizations. Judges are appointed and their salaries paid by the local governments in the jurisdictions in which they serve, leading to ‘local protectionism’ that frequently influences the outcomes of litigation. In addition, guanxi (relationships), corruption, and bribery are often employed to influence outcomes that on many occasions pervert justice.

2.2.2 The Legal Profession. The bar was formally reestablished in 1980 following a twenty-year hiatus after a brief experiment with a Soviet-style bar was ended, and legal education was revived. There were over 120,000 lawyers in 2000, but the educational level of many older lawyers is low and legal education remains highly formalistic. By 2000 China had over 8,000 law firms, most of which were state-run, but the number of ‘cooperative’ firms was growing. The sudden expansion of the legal profession created enormous temptations for lawyers, judges, and officials to engage in bribery and other corrupt practices. The state continued to regulate and scrutinize lawyers’ activities, and a major unresolved contradiction existed between the concept of a professional bar and CCP opposition to autonomous organizations and professions.

2.2.3 The Criminal Process. The criminal process continues to be a tool for the politicized administration of law, as when political leaders focus it on activities deemed to ‘endanger the security of the state,’ or on other particular types of criminal activity. The formal rationality of the criminal process has been slowly increased in a criminal code and code of criminal procedure, but the extensive power of the police and the CCP over the criminal process have been only ineffectually restrained, and the police-administered system of sanctions begun under Mao remained in place in 2000.

2.2.4 Administrative Law. The Chinese leadership began in the 1990s to address the need to create legal institutions that might curb bureaucratic arbitrariness. A series of laws gave affected persons or organizations the right to sue agencies that have acted unlawfully, defined the wide assortment of punishments that may be imposed by administrative agencies, and recognized situations in which governmental agencies may be liable for injurious consequences of their acts. However, the jurisdiction of the courts and their power to restrain arbitrariness remained limited. Chinese laws and administrative rules have generally given agencies very broad discretion, while judicial control of administrative action has been limited by a reluctance to allow courts to review the validity of general rules issued by administrative agencies or to decide that they had improperly used their discretion. The courts were at best only at the same level of authority as the other institutions of the state apparatus; their limited reach reflected the subordination of law to the bureaucracy.

2.3 The Future

The development, shape and meaningfulness of Chinese legal institutions will depend upon critical factors that lie outside the law.

2.3.1 Policy. As long as the CCP rules China, its policy will have to overcome its ambivalence toward the role—and rule—of law. The Chinese Constitution, amended in 1999 to declare that ‘The People’s Republic of China shall be governed according to law and shall be built into a socialist country based on the rule of law,’ also affirmed ‘the leadership of the Chinese Communist Party, Marxism-Leninism and Mao Zedong Thought, and ‘‘Deng Xiaoping Theory’’’ as ‘guiding principles.’ The leadership has tended to equate law with discipline and to treat it as an instrument to maintain the dominant role of the CCP in Chinese society. At the same time, it has also recognized that law can further rationalize decision making and implementation of policy, while increasing legitimacy at home and abroad.

2.3.2 Structural Problems. At the beginning of the twenty-first century institutions for law making heavily reflect the imprint of pre-reform doctrine and practice. Three principal law-making agencies share the central government’s legislative power under the Constitution adopted in 1982—the National People’s Congress, its Standing Committee and the State Council—but their respective powers were only very generally defined and subject in practice to informal negotiations. The State Council, at the head of the executive branch of the central government, together with the ministries, commissions, and bureaus that are subordinate to it, possesses broad power to generate rules superior to all local enactments.

Although subnational units and more than 20 functional bureaucracies of the central government issue regulations, distinctions among the rules that they issue, and between rule making and implementation, are blurred. No effective mechanism has existed to measure legal norms for consistency with higher-level norms, and the Constitution is not justiciable. Chinese administrative agencies have exercised the power both to issue and interpret their own rules, and to require the courts to enforce them. The lower courts are formally denied power to interpret laws, although in practice the Supreme People’s Court has asserted a strong role in the interpretation and clarification of laws. These problems are aggravated by the frequently provisional nature and tentative style of legislation.

Although the dramatic Chinese economic reform at the end of the twentieth century was greatly promoted by increasing the power of local governments, it also facilitated extensive interpenetration of government and business. It was carried out without carefully defining property rights, and local governments took advantage of the uncertainty to form alliances with private enterprises. Local government involvement in enterprises varied from disguised ownership to acceptance of payoffs and bribes. Overall, in the year 2000, marketization was often not synonymous with privatization, and some Western scholars perceived the emergence of corporatist relationships that closely linked non-governmental actors to local governments. Also, the growth of local power increased local deviations from central state policies, and undermined uniformity in the application of legal rules and the reach of the central government generally.

Legal development remains tied to economic reform; its vigor will in turn not only on the strength of the economy and the consolidation of reforms already accomplished, but also on whether solutions are fashioned to deal with basic problems that have been difficult to surmount. The state sector of the economy has been governed by rules and practices to which legal rules are essentially irrelevant. Although reform has long been a goal of the leadership, it has been unable to chart a clear course between privatization and continued dedication to state ownership, or to create mechanisms to deal with the large-scale unemployment and associated social distress that further industrial reform would generate. The establishment of enforceable rules on the governance of formerly state-owned firms that have been converted remains problematic. Financial system reform began in the last years of the twentieth century but was incomplete and faced serious obstacles; and both creation and regulation of capital markets were still in early stages.

2.3.3 The Crisis Of Values. Reform dramatically relaxed state control over the lives of many Chinese in noticeable ways, but it also created severe social dislocations including income disparity and an impoverished ‘floating population’ of as many as 100 million peasants who have flocked to China’s cities seeking employment. Discontent has risen, among peasants angry at their exploitation by local cadres and among unemployed workers at state-owned enterprises that have closed down. Crime, violent and otherwise, has risen, provoking widespread concern about social order.

The profound political and economic changes of the last two decades of the twentieth century unsettled both traditional and Communist values. The Party’s ideology became hollow and its legitimacy increasingly questioned, while the opening of China to the rest of the world exposed the Chinese people to new values and ideas, including Western concepts of legality. The weakening of the totalitarian grip on individual lives and the continuing flux of economic reform have fostered the re-emergence of an emphasis on personal relationships and clientelism. Corruption has grown despite continued efforts by the leadership to check and punish its many manifestations, and has aroused alienation and cynicism among many Chinese.

2.3.4 Chinese Legal Culture: Continuity And Change. Chinese legal culture continues to reflect competing currents. Traditional values remain strong. Many Chinese remain unwilling to take their disputes to courts, choosing to rely on personal relationships or to defer to authority. In the courts, concern for procedural justice is weak. Bureaucrats continue to want to enjoy broad discretion. At the same time, the extensive social and economic changes sparked by reform have promoted consciousness of legal rights and willingness to use legal processes to assert such rights. Lawsuits against government agencies are increasing, although they remain relatively small in number, and peasant and worker protests often invoke published laws and policies to resist official behavior that they consider to be unjust. Some Chinese legal scholars, officials and intellectuals have called for a legal system with a national and autonomous judiciary that applies standards of procedural fairness. Some economic actors in the non-state sector desire stronger protection of their transactions by rules enforced meaningfully and consistently by the power of the Chinese state. Despite the resistance of the CCP to the growth of civil society, the continuing development of non-state economic activity, the strength of communal traditions and the tenacity of some nongovernmental organizations in Chinese society could combine to advance the development of legal consciousness.

3. Conclusion: Perspectives

It should not be assumed that legal development will lead to Western-type institutions or to liberal democracy. The domain considered ‘legal’ and the boundaries between it and other areas of Chinese state, society, and economy will not necessarily converge with Western concepts, and rights may remain ‘soft.’ Nor should Western observers overstate the supposed virtues for China of Western concepts and institutions, themselves imperfect and under question.

Twenty years of reform efforts began a journey toward greater legality, and further efforts are underway at the beginning of the twenty-first century to advance judicial reform, add coherence to Chinese law making, and develop administrative law further. The accession of China to the World Trade Organization would impose on China international obligations to increase the transparency of government and the reach of legal institutions. The General Agreement on Tariffs and Trade and other agreements that are implemented by the WTO require all member nations to adopt and implement their laws relating to trade in a manner consistent with the rule of law as it is understood in the West, and China will have to adjust its legal institutions to comply with WTO standards. The deepening of legal reform most depends, however, on political reform. Legal institutions will be hobbled by political constraints as long as any Chinese leadership, Communist or post-Communist, maintains an instrumental view of law, remains ambivalent about the rule of law, and inhibits the growth of an active civil society. For law to grow more meaningful, leadership policy and official ideology must enlarge the domain of the law, end or greatly dilute one-party domination, and remedy institutional weaknesses in the structure of the Chinese state. Even the strongest political commitment will require considerable time to implement further reform, overcome the serious limits on state capacity that make the governance of China difficult under any circumstances, and inspire popular confidence in institutions. The processes of institutional change that have begun can only work slowly at best.

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