Let’s hop over the border to Shenzhen (深圳), China. We’ll start by looking at the influences on the Chinese legal system through the lens of history.
From Hong Kong, you can easily cross the border to Mainland China by train. The bustling city of Shenzhen does not have the sophisticated allure of HK. One thing is evident—Shenzhen means business. It has been an engine room for the economic boom since it became China’s first Special Economic Zone (SEZ) in 1980. Shenzhen is the key to understanding modern-day China. It was an experimental ground for the seemingly oxymoronic “socialist market economy”, also known as “socialism with Chinese characteristics”.
Shenzhen is a no-frills city, at least when I visited in 2012. There is a strange sense that residents are catching up with lost time through trade. The residents—who are conversant in Cantonese—could easily have been living across in HK, where Cantonese is the lingua franca. These strange geographical/historical quirks determine the fate of people who otherwise shared a common history for millennia.
China’s rapid development has resulted in some striking features in Shenzhen’s urban landscape. Despite its industrialised feel, Shenzhen has one of the shiniest new train metro systems—even in comparison to Japan and HK. I recall the gleaming train that pulled into the subterranean chamber. The inside of the train was brand new, almost clinical with its glaring white lights and twinkling LED bulbs indicating the next station. At the time I visited in 2012, the rest of the city looked nothing like its shiny metro. It seemed that the city’s infrastructure planners had entered with their copy and paste functionality (Ctrl+C and Ctrl+V if you love a shortcut).
A complex discussion
More broadly, there is so much to talk about China.
You could start with its long history (the popular figure is 5,000 years). Or its inventions over time, fireworks and paper money amongst them. Within living memory, you could point to the tumultuous years of the Cultural Revolution (which was anything but cultural). In more recent times, failures in its civil and human rights record (from re-education camps to electronic surveillance of its own population in the form of the social credit system), concerns about whether it poses a threat to other nations, its commitment to renewable energy and how its market reforms in 1978 has lifted 850 million people out of poverty.
Our love for simplicity means that we often leap to conclusions about what China is, what it isn’t and where its future lies. Most public discussions in Australia are impassioned and simplistic in equal measure. And often, driven by fear. It is difficult to import nuance into any discussion which considers the gamut of social, cultural, geopolitical and economic factors. Here, it is with some irony that we’ll only focus on the legal aspects of China’s system. But I urge you to continue the discussion in your circles.
It’s the economy, (beep)!
China’s transformation from its sleepy villages where famine was a very real problem, to the modern day—raises pertinent legal issues (amongst others). Like any country with an interest in trade or commerce, the law develops with a singular purpose of creating a system of trust. One where people abide by contracts, ship goods on time, respect private property, and so on.
However, China’s race to build infrastructure also points to difficulties in building a coherent legal system. One area is the matter of questionable land acquisitions, which in practice run counter to a system of property rights. Some developments give rise to famous “nail houses” (钉子户). This is where the owner refuses to budge from their home, often due to unsatisfactory compensation. The house, or its owner, is said to be “stubborn like a stuck nail”.
Professor Jerome Cohen from New York University puts it well:
“The savagery of the 1989 Tiananmen massacre and the subsequent continuing use of the PRC judicial system as an instrument for suppressing ‘counter-revolutionary’ speech and action have heightened foreign interest in the administration of criminal justice and the sad condition of political and civil rights in China. At the same time, there is growing awareness, outside as well as inside China, that the PRC’s impressive economic progress since 1978 has come to depend upon an infrastructure of laws, contracts and dispute resolution mechanisms that contributes to predictability and security of expectations.”
— Prof. Jerome Cohen, Forward to the First Edition of An Introduction to the Legal System of the People’s Republic of China by Prof. Albert Chen.
No modern-day assessment of the Chinese legal system is complete without an understanding of the past. In Part 1 of this blog post, we go back in time to take a look at these historical influences.
Jump into the time machine!
Say hello to 551 BC, at the birth of Confucius.
The school of thought that Confucius (551 – 479 BC) founded, Confucianism, was integral to how ancient Chinese society conducted itself. This was, until the arrival of the Communist Party of China in the 20th century. Confucianists argued for restraint and obedience toward authority.
Lesser known are the Legalists, with its proponents Shang Yang (390 – 338 BC) and Han Fei (280 – 233 BC). The Legalists, in contrast, “advocated a heavy reliance on the law” in the form of legal rules backed up by state-imposed sanctions.
These two schools of thought, Confucianism and Legalism, raise points for discussion still relevant in society today.
Professor Albert Chen notes the thinking of the time:
“The Confucianists criticised the ‘hedonistic pleasure-pain psychology’ relied on by the Legalists, which, the Confucianists argued, would lead people to think only in terms of their self-interest and make them litigious, trying to manipulate the laws to suit their own interests.”
— Prof. Albert Chen, “The Legal History of Traditional China”, p 13
In the grip of Confucian…ism
It is evident which school of thought won out in the end. Confucianism was “accepted as the state philosophy since the Han dynasty (206 BC – 220 AD)”.
Confucian philosophy taught that every individual had a role to play in Chinese society. A core tenet was respecting higher authority: wife to husband, son to father, subject to emperor.
Professor Albert Chen, a pre-eminent scholar of Chinese law at the University of HK, notes that “the State or nation or whole was conceived of as an extended family, and the importance of filial piety in the family corresponded to the emphasis on the duty of absolute loyalty and obedience on the part of subjects to the ruler”. In exchange, Confucianism taught that the ruler had the “Mandate of Heaven” in wielding ultimate authority, while:
“… under a moral obligation to treat his subjects as if they were his children. He should take good care of them, teach and nourish them, set a good moral example for them and strive to develop their moral character.”
— Prof. Albert Chen, “The Legal History of Traditional China”, p 14
The influence of Confucianism meant that Chinese society never fully awakened, as in Western societies, to the concept of rule of law. The Chinese legal system was otherwise known for its severe punishments, depending on the ruler of the day. It was never exposed to concepts which developed within Western legal systems, including those pointed out by Chen:
- legal rights
- the rule of law
- equality under the law
- humanism and humanitarianism
- democracy and majority rule
- judicial independence
- procedural fairness and due process
- a prosecutorial or procuratorial system, the jury, and defence lawyers.
Confucianism continues to have a long-lasting effect on modern Chinese society. In particular, its struggles to relate to government power:
“As the Chinese people were excluded from government affairs, especially the legislative process, they felt impotent vis-à-vis the law and the government authorities. As a result they developed two distinctive behavioral syndromes—one to withdraw and subjugate and one to defy and rebel… The Chinese people… never learned how to treat government officials as ordinary humans basically equal to themselves. The officials were either benevolent guardians or high-handed oppressors. They were to be obeyed or revolted against but not checked and supervised. In short the Chinese people never learned how to effectively control their government.”
— Prof. Chang Wei-jen (1986) “Traditional Chinese Attitudes Toward Law and Authority”, paper presented at a Symposium on Chinese and European Concepts of Law, Chinese University of HK.
Turn of the 20th century
In 1895, China lost the Sino-Japanese War. This also marked a time of “rapid influx of Western political and social thought” into China. Concepts like “sovereignty”, “citizen”, “constitution” and “democracy” were adopted by Chinese intellectuals.
There was also a realisation that the Chinese legal system needed modernising. For one, foreign Western powers refused to acknowledge Chinese laws. They extracted a concession from China in the form of “extraterritorial jurisdiction”. This allowed Western powers to try their own nationals in their own courts on Chinese territory—an unusual quirk of history which bore down on Chinese sovereignty.
In 1904, the Law Reform Bureau of the Qing dynasty (1644–1911)—the last Chinese imperial dynasty—was finally set up to translate foreign legal codes and draft new Chinese laws. The new codes of law covered diverse areas, from criminal law, criminal procedure, civil law, company law to commercial law. The leading figure of this law reform, Shen Jiaben, had studied Western legal systems and the newly modernised Japanese law. He advocated for human rights and the abolishment of cruel punishments, but “encountered strong opposition from conservative Confucianists”.
This brief period of legal modernisation was cut short in 1911. The Qing dynasty was overthrown in the 1911 Revolution, known as the “Xinhai Revolution”. This led to the formation of the Republic of China (which to this day Taiwan is known) with the Nationalist Party (“Kuomintang” or KMT) in government. Due to the KMT’s inability to extend its influence throughout Mainland China and its uneasy existence with the Communist Party of China (founded in 1921), the development of legal institutions floundered in this period.
Rule of man, not law
In October 1949, the Communist Party of China emerged victorious over the KMT and formally established the People’s Republic of China or PRC. The KMT fled Mainland China to Taiwan, where it set up its government and continues to be a political party to this day.
This juncture in history marked a tortured point in modern Chinese history, where rule of man rather than rule of law took hold. In the push to socialism, mass campaigns against the “landlord class” and “rich peasants” led to many injustices in the form of mass trials, inhuman treatment and the persecution of “class enemies”.
While the Chinese legal profession continued to exist during this period, it received two death blows in quick succession.
Hundred Flowers Movement
In 1957, the Communist Party announced the “Hundred Flowers Movement”, supposedly a new policy of “letting a hundred flowers bloom and a hundred schools contend”. The purpose? To encourage “all people to ‘rectify’ the Party by expressing their opinions freely and offering criticisms on matters such as Party policy”. This had the effect of drawing out harsh critics of the Party. The Party swiftly responded by launching an “Anti-Rightist Campaign” to purge them:
“Many jurists, lawyers and judges, who had been among the more outspoken critics of the regime during the Hundred Flowers Movement were the victims of the Anti-Rightist Campaign… After 1957, the prestige of legal institutions such as the courts and the procuratorates fell sharply. Lawyers ceased to practise, the publication of legal materials declined, the law schools switched to teach politics rather than law.”
— Prof. Albert Chen, “The Legal History of Modern China”, p 36
The Cultural Revolution
The next stage of China’s “rule of man” over “rule of law” history culminated in Mao Zedong’s 1966 “Great Proletarian Cultural Revolution”, known now as the Cultural Revolution.
This period saw widespread chaos and destruction of cultural artifacts, books and paintings, perceived as “bourgeois”. Intellectuals were driven out of their homes and put on trial or beaten up by the masses. Many fled overseas, including to Hong Kong. This was a period of deep suspicion, where anyone could be accused and set on by uncontrolled masses in the “class struggle”. It is believed that between 500,000 and two million people died during the Cultural Revolution.
For the legal profession, the Cultural Revolution was fatal:
“Law schools were closed down. Members of the legal community were persecuted or forced to shift to other kinds of work. In short, law neither existed as an academic discipline nor as a rational mechanism of social control. It was struggled against and purged.”
— Prof. Albert Chen, “The Legal History of Modern China”, p 41
Arguably, the legal profession in China is yet to recover from these death blows. A Chinese lawyer once confided that being part of the Chinese judiciary, unlike in Western legal systems, was a mark of failure and defined by low pay. Success, rather, was working in an international law firm.
A change of mind?
The terrors of the Cultural Revolution came to a close with Mao’s death in 1976. Deng Xiaoping came to power, initiating the market reforms leading to modern-day China. He delivered a speech to the Communist Party in 1978, which signalled a change of mind from the previous “rule of man” system:
“In order to safeguard people’s democracy, the legal system must be strengthened. Democracy needs to be institutionalised and legalised so that such a system and such laws would not change merely because of a change of leadership or a change in the leaders’ views and attention. The present problem is that the laws are incomplete; many laws have not yet been enacted. Leaders’ words are often taken as ‘law’, and if one disagrees with what the leaders say, it is called ‘unlawful’. And if the leaders change their words, the ‘law’ changes accordingly.”
— December 1978 speech of Deng Xiaoping to the Chinese Communist Party
This ushered in a new period of market reforms, known literally in Chinese as “reform and open up” (改革开放). Economic growth has however not translated into progressing civil or human rights, given the tragic deaths of numerous university students following the Tiananmen Square massacre on 4 June 1989.
Next week, with this historical background in mind, we’ll check out the modern-day Chinese legal system. For the curious, we’ll also look at how the civil law system works—as distinct from the common law system.
- Albert Chen, An Introduction to the Legal System of the People’s Republic of China (2011, 4th ed), LexisNexis Butterworths. (Note that as of March 2019, the 5th edition is available).
- NPR article, “30 Years After Tiananmen Protests, ‘The Fight Is Still Going On For China'” (31 May 2019), link.