Within China’s legal system, there are two competing pressures in the practice of law. On the one hand, state officials have routinely expressed the desire for implementing “formal law,” especially during the early reform period post-Mao, in order to give “coherence and legitimacy to reform efforts.” [1] On the other hand, recent campaigns have sought to do away with this codification altogether, signifying a potential return to Maoist era legal philosophy.
Consider the developments of state policy from the post-Mao period to present. While the post-Mao period saw a routinely expressed desire from state officials to implement “formal law,” the Chinese Communist Party sought to reverse these developments in 2006 with their campaign on the “socialist rule of law theory,” of which the goals were to ensure the legal system’s “political colour” and loyalty to the Party, while emphasising mediation over adjudication in the dispute resolution process. [2]
Except for a brief stint in constitutionalism during the first few years after the 1949 revolution, Maoist era China saw legality pushed to the wayside in favour of Party absolutism. The legal community was one of the first targets of the 1957 Anti-Rightist Campaign. Mao was quoted as saying: “The Civil Law, the Criminal Law, who remembers those texts?” The Ministry of Justice was closed in 1959, and China had no formal legal apparatus for the next 20 years. Instead, disputes between citizens were resolved by mediation, either by a local activist or a party official, often to transmit Party doctrine in the process and correct “feudal thinking.” [3]
China’s move towards legalistic governance began in the early 1980s, shortly after Mao’s death and the demise of Hua Guofeng and the gang of four. This legal reform allowed constitutionalists, who had been persecuted by the Maoist campaigns in the 1950s, to come forward, restore the state’s legal apparatus, and rebuild the legal profession which had been virtually non-existent during the Cultural Revolution. [4] Instead of mediation, the government advanced court adjudication as “the preferred means of resolving civil disputes.” A successive number of legislations were passed to codify the reforms, including the Civil Procedure Law, the Administrative Litigation Law, the Administrative Licensing Law, as well as the Regulations on Open Government. While the judiciary was still supposed to “support key Party-state objectives,” the latter regulation even gave citizens limited rights to challenge the state in court. [5]
In the late 2000s, however, formal law began to be perceived as an imported foreign institution, which failed to address the realities of China’s situation, especially in rural areas. Fears grew that the inability to enforce court decisions would lead to social unrest grew. The legal system was blamed for “creating artificial barriers between the people and officials.” Thus, the objective of the Chinese government’s judicial reform shifted towards the objective of then-President Hu Jintao’s goal of “harmonious society” – reorienting the country’s goals from pure economic growth to addressing “social and regional contradictions.” [6] To accomplish this, the vice-president of the Supreme People’s Court, Cao Jianming, stated that a campaign of “socialist rule of law” should be undertaken to avoid the “negative influence of Western rule of law theory.” The Maoist-era institution of people’s mediation committees was brought back to the forefront and was formally implemented in the 2010 Law on People’s Mediation. [7]
Chinese propaganda often signals the values of the state by elevating a “model official” – a state employee whose conduct embodies idealized values of the State apparatus at the time. In the case of the judiciary, the officials who were promoted were “model judges.” The differences in the preferred method of case resolution can be seen by analyzing the “model judges” which were promoted during these time periods.
In the 1990s, model judges included figures such as Qin Lingmei, who was praised for her “cool headedness” and “rejection of excessive social contacts.” Likewise, Judge Gao Binghuan was praised for her “fearless execution of court judgements,” and was quoted as saying: “we must uphold the authority of the law, even at the cost of our lives.” The portrayal of model judges in the late 2000s were very different. Take the case of the 2010 campaign of Judge Chen Yanping. She was praised for her desire to “realize the Confucian ideal of a world without litigation,” thus helping to achieve the goal of “harmonious society.” She was extolled as the ideal judge, who was “willing to spend hours, days, or weeks to reach a mediated conclusion.” On the other hand, judges “who merely rely on cold law and mechanical procedures” were denounced. [8]
Though analysis is scarce, it seems that the situation regarding the adjudication of the courts has shifted again under the Xi Jinping administration. Xi has initiated a push towards a more “professionalized, efficient, and effective…legal sector.” It seems that the courts are again encouraged to resolve disputes formally (adjudication) rather than informally (mediation). It appears that the Xi administration has changed tactics to address the rise of social instability in China. Unlike President Hu, who encouraged the legal system to find informal solutions to civil disputes so as to not let them boil over into open court cases, President Xi prefers to use outright coercion against instigators of social instability, thus forcing them to use formal institutions to air their grievances. Political scientists Diana Fu and Greg Distelhorst found that while contentious political participation has been severely cracked down upon since 2013, the rate of administrative lawsuits has increased. [9]
However, this does not mean that the Law on People’s Mediation has been negated, nor that mediation as a “Confucian ideal” has exited the public psyche. For now, it seems that the legalism which was once at the forefront of Chinese legal reform has made a comeback, but only time will tell if “formal law” or “socialist rule of law” will prevail.
Edited by Samantha Dagres.
Bibligraphy:
[1] Minzer, Carl F. “China’s Turn Against Law.” The American Journal of Comparative Law 59, no. 4 (2011): 935-84. www.jstor.org/stable/23045693.
[2] Liebman, Benjamin L. “China’s Courts: Restricted Reform.” The China Quarterly, no. 191 (2007): 620-38. www.jstor.org/stable/20192809.
[3] Tiffert, Glenn D. “Epistrophy: Chinese Constitutionalism and the 1950s.” In Building Constitutionalism in China, edited by Stéphanie Balme and Michael W. Dowdle, 59–76. New York, NY: Palgrave Macmillan, 2009.
[4] Ibid.
[5] Ibid.
[6] Mohanty, Manoranjan. “‘Harmonious Society’: Hu Jintao’s Vision and the Chinese Party Congress.” Economic and Political Weekly 47, no. 50 (2012): 12-16. www.jstor.org/stable/41720457.
[7] Ibid.
[8] Ibid.
[9] Fu, Diana, and Greg Distelhorst. “Grassroots Participation and Repression under Hu Jintao and Xi Jinping.” The China Journal, no. 79 (January 2018): 100–122. https://doi.org/10.1086/694299.
The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Studies or the Political Science Students’ Association.
