Political Order and Political Decay (58 page)

In contrast to the Confucian viewpoint, the Legalist school in ancient China argued in favor of written law. Unlike the Confucians, who saw human nature as essentially good and educable, the Legalists believed that human beings were selfish and prone to disorder. Behavior needed to be regulated not through morality but through strict incentives—above all, extremely harsh punishments for transgressions. The Legalists argued, in the words of one historian, that a government must “publicize its laws to all and to apply them impartially to high and low alike, irrespective of relationship or rank,” and that “Law is the basis of stable government because, being fixed and known to all, it provides an exact instrument with which to measure individual conduct.” By contrast, “A government based on
li
cannot do this, since the
li
are unwritten, particularistic and subject to arbitrary interpretation.”
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In many ways, the Legalist tradition comes much closer to the contemporary Western understanding of law as general, clearly stated, and impartial rules, and of human behavior being determined primarily by incentives rather than moral norms. If the Western tradition seeks to limit the autonomy of governments through law, the Chinese tradition seeks to maximize it through a more flexible system of morality.
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Although the Legalist school disappeared after the beginning of the Han Dynasty in the second century
B.C.
, subsequent Chinese government was always something of an amalgamation of the Confucian and Legalist positions. Major legal codes were promulgated during the Han, Tang, Ming, and Qing Dynasties, which were mostly lists of punishments for criminal offenses in the Legalist tradition. However, the law specified many different outcomes dependent on circumstance, along Confucian lines.
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Formal law always played a much smaller role in regulating Chinese social behavior than it did in the West. Many disputes were adjudicated under customary (that is, unwritten) rules of the lineage, clan, or village rather than being settled through the court system. Formal litigation was denigrated. Judges were not a separate, high-status group as in Israel, the Middle East, India, and Europe, but were just another species of bureaucrat without their own separate training institutions and guildlike traditions. In Europe, the first bureaucrats in the Middle Ages were recruited out of the ranks of lawyers, and lawyers played central political roles in later events like the French Revolution. Nothing like this was ever remotely the case in China.
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CHINA GETS A CONSTITUTION

The Manchu regime ruling Qing China was much slower to react to the Western challenge than were the rulers of Meiji Japan. Responding to Western criticisms of traditional Chinese law, particularly with respect to the cruelty of punishments, a commission led by Shen Jiaben was established in 1902 to recommend revisions to the Qing Code.

The Chinese reformers were motivated, as were the Japanese, by fear that their military and political weakness stemmed from defects in their traditional institutions. Much like contemporary developing countries facing the International Monetary Fund, they understood that they had to align their own practices with Western standards as a condition for being treated as sovereign equals. Members of the commission traveled to Japan, Europe, and the United States to study alternative constitutional models, and by 1911 they had drafted an extensively revised code that contained new provisions related to commercial law, procedure, and judicial organization. Like the Japanese, the Chinese reformers considered and then rejected Common Law in favor of Civil Law; in their revisions of criminal law they borrowed a great deal of the German code virtually intact. They copied much of the Japanese approach since Japan had so successfully used it to overturn the unequal treaties in the previous decade. Two Japanese scholars, Okada Asataro and Matsuoka Yoshitada, established the first modern law school in Beijing in 1906. These reforms met substantial resistance from conservatives in the court, who were particularly upset with changes affecting the traditional family.
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The old regime proposed a nine-year plan to replace the old empire with a constitutional monarchy, based on wholesale importation of the Meiji Constitution (minus its modest restrictions on imperial powers). Neither the revised code nor the proposed constitution could be implemented, however, before the regime faced an armed uprising in 1911. A last-minute promulgation of a constitution known as the Nineteen Articles was too little and too late to save the regime, which was replaced by a Chinese republic the following year.
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In the ensuing period of warlordism and civil war, constitutions were enacted by various political actors to burnish their legitimacy, but few had any real effect in limiting power.
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The leading exponent of Chinese revival following the 1911 Revolution was Sun Yat-sen, leader of the Nationalist movement. While he appealed to Abraham Lincoln and the French Revolution as sources of inspiration, the Guomindang party (KMT) he created was both Leninist and authoritarian. After KMT's break with the Communists in 1927, the party, under the leadership of Chiang Kai-shek, promulgated an organic law that was to serve as a provisional constitution for the Republic of China. This law entrenched single-party rule by the KMT for a period of tutelage, which was formally ended only in 1946 by adoption of a constitution of the Republic of China (ROC). Once it had retreated to Taiwan after the Communist victory in 1949, the KMT government remained a dictatorship through emergency powers granted on the basis of the existence of a “Period of Communist Rebellion.” True constitutional government came to the Republic of China on Taiwan only in 1991, with the formal ending of the “rebellion” and the lifting of military rule.
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While the constitutions of the early twentieth century were largely meaningless, the same cannot be said of the revisions to the civil code that were published by the KMT in 1929–1930, some of which have been preserved in contemporary laws of the People's Republic of China. There were three major areas of reform, some carried forward from the proposed revisions to the Qing Code of 1911. The first was the shift from the old Qing Code's schedules of proscriptions and punishments to a system recognizing the rights and responsibilities of citizens. For the first time, Chinese citizens were seen not simply as the subjects of state power but as individuals with positive legal entitlements. The second shift was economic. The old Qing Code had embedded property rights in the lineage or patrilineal kin group, and the right to alienate property was severely entailed by the obligations of one family member to another. The KMT code, by contrast, recognized property rights that were individual and freely alienable. It put into effect a whole domain of private law involving contract and torts, which had been regarded as “minor matters” in Qing law. And finally, it attacked the legal basis of the patrilineal family by giving women full rights to inherit property and the ability to contest those rights before the courts. This was one area in which Chinese legal reform outpaced reform that had taken place in Japan up to that date.
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MAO'S ASSAULT ON LAW

When the Chinese Communists came to power in 1949, they liberated the mainland from foreign occupation and restored the sovereignty of a centralized state. Mao Zedong had by this point acquired such stature as “the Great Helmsman” that he was able to embark on a personal dictatorship so extreme that it completely dismantled all semblance of law. Even though emperors in dynastic China were in theory absolute sovereigns, their power was in fact limited by the bureaucracy and the myriad rules, procedures, and rituals by which the court operated. One would have to go back to Qin Shi Huangdi, unifier of China in the third century
B.C.
, Wu Zhao, the “evil empress Wu” of the Tang Dynasty in the seventh century, or the first Ming emperor, Zhu Yuangzhang, in the fourteenth, to find precedents for Mao's personal exercise of power. It is no accident that Mao celebrated Shang Yang, the Legalist mastermind of the dictatorial state of Qin that unified China, as a protototalitarian predecessor.
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One of Mao's first acts on coming to power was to abolish at one stroke all of the codes developed by the KMT government. Where law was used, it was an arbitrary terroristic weapon to fight the Chinese Communist Party's (CCP) “class enemies.” In 1952–1953, law itself became a target as judges and clerks with legal training under the former nationalist government were purged and replaced with party cadres. The criminal law was used to go after perceived enemies, and the police began to operate independently of the judicial system, creating a vast network of detention camps and attacking groups like “landlords,” “counter-revolutionaries,” and “rich peasants.” In a country where private property was being eliminated, civil law essentially did not exist. As Premier Zhou Enlai was to explain in 1958, “Why should we proletarians be restrained by laws?!… Our law should be developed in pace with the changes of the economic base. Institutions, rules and regulations should not be fixed. We should not be afraid of changes. We have advocated uninterrupted revolutions and the law should be in the service of the continuing revolution … It does not matter if we make a law today and change it tomorrow.”
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Mao himself asserted that “[we must] depend on rule of man, not rule of law.”

No society, of course, can live entirely without rules, and as the Communist Party sought to stabilize and expand the economy in the 1950s, it began rebuilding law by importing statutes from the Soviet Union. But this process was cut short by the Anti-Rightist Movement in 1957 and the Great Leap Forward of 1958. The latter was an ideologically driven campaign whose goal was to mobilize mass support for industrialization but instead brought about a famine estimated to have killed thirty-six million people.
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After this disaster, there was another brief effort to rebuild a legal system during the early 1960s, which was in turn brought to an end by Mao's Cultural Revolution of 1966–1976. Mao's revolution ended any semblance of rule-based administration, undermined the operations of government, and terrorized the party itself, much like Stalin's purges of the Soviet Communist Party during the 1930s.
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REBUILDING RULE BY LAW AFTER 1978

It is impossible to understand the China that emerged after the death of Mao and the reforms that began in 1978 except in relation to the trauma experienced by those who lived through the Cultural Revolution. The Communist elite that survived this period, led by one of the greatest statesmen of the twentieth century, Deng Xiaoping, was determined that Mao's form of personal dictatorship must never be allowed to occur again. The political reform process that unfolded subsequently centered around the slow construction of a series of rules that would limit the ability of any future charismatic leader to emerge and wreak havoc on the whole of Chinese society in the manner of Mao. In addition, law was seen as a mechanism by which the party could channel and monitor popular grievances against the government. As a result, nearly forty years after Mao's death, China has become a far more law-governed and traditionally bureaucratic society.

It has not, however, become a society governed by a rule
of
law. Even though leaders at the top levels of the Chinese Communist Party have agreed on rules to manage their relationships with one another, they have nonetheless never acknowledged the supremacy of law itself over the party. The evolution of constitutions since the founding of the People's Republic of China (PRC) tells a story about the failure of the Communist Party to create a true rule of law.

Virtually all Communist countries followed the lead of the former Soviet Union in adopting formal constitutions that were essentially worthless pieces of paper in terms of any real constraints on political power. The PRC's first constitution, which was adopted in 1954, enshrined the Socialist principles from the CCP's 1949 Common Program and imported many provisions from the Soviet constitution wholesale. The gradual implementation of “social transformation” noted in this document was then rejected in favor of a more leftist constitution drafted during the Cultural Revolution in 1975 that openly called for the dictatorship of the party over the state.

Since Mao's death in 1976 and the fall of the so-called Gang of Four, there have been new constitutions or major constitutional revisions promulgated in 1978, 1982, 1988, 1993, 1999, and 2004. These revisions largely reflected the shift to the right and the opening toward a market economy that was taking place in the political realm. Article 18 of the 1982 constitution, for example, provided a basis for foreign investment and its protection, while the 1988 revision provided for the commercial transfer of land use rights. The 1992 revision substituted “socialist market economy” for “planned economy,” and “state-run enterprises” with “state-owned enterprises.” The newer versions also returned some powers from the party to the state, reflecting the latter's larger role in economic management.

These constitutional provisions, however, were more declarations of new policy initiatives decided on by the party than serious legal instruments that would govern the party's own behavior. The contemporary Chinese constitution is built around two potentially contradictory principles. On the one hand, Deng Xiaoping asserted in 1978 that “democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes, or whenever the leaders change their views.”
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The Chinese constitution provides for an elected National People's Congress (NPC), which is held to be the “supreme organ of state power,” along with people's congresses at lower levels of government. The constitution further states that the Communist Party must operate under its provisions and the law. China scholar Kenneth Lieberthal notes that in the decades after 1978, the NPC has played a greater role in policy deliberation and has passed “a remarkable corpus of formal law” in areas not regarded as inherently political by the party. This contrasts with the virtually lawless state of affairs under Mao.
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