Legal System—History (Fǎzhìshǐ 法制史)|Fǎzhìshǐ 法制史 (Legal System—History)

William C. JONES (dec.)

A district court in the Putuo District (NP-W) Shanghai. PHOTO BY JOAN LEBOLD COHEN.

Since the third century, China has always consisted of a strong central government. The emperor’s decrees were law, changing only with dynasties, until 1912’s revolution. Throughout the modern era, one concept has remained: the government as a centralized bureaucratic autocracy.

Westerners think about law as a formal system, with such features as contracts, a bench, and bar. Throughout its history some of China’s most prominent thinkers have shown hostility to what Westerns think of as law. Just as Western missionaries took it upon themselves to correct the defective Chinese system of religion, Western jurists have felt impelled to show the Chinese what a proper legal system is. Initially, the Chinese were unimpressed. Eventually, however, succumbed to Western arguments—backed by Western arms—and established a new European-style legal system. But traces of the legal system developed in the Tang dynasty (618–907 CE), which are unlike anything Westerners think of as law, remain.

Western Legal Perspectives

Westerners think of a legal system primarily as a social institution within which persons (individuals, groups of individuals, or even the state) can make claims against other persons and have these resolved by a neutral judge of fact and law: the court. Normally, persons are represented by lawyers. Westerners also tend to think that the laws applied by the courts will deal with private law, torts, contracts, property, and the like. An organized bar, judicial independence, separation of powers, and some judicial review of administrative acts are also institutions that Westerners expect. These are all aspects of a familiar legal system. They reflect the point of view of law formed by Roman law.

In the fourth century BCE, when Roman law was developing, Rome was a small and predominantly agricultural community with a weak government. The legal problems that Roman law dealt with were the resolution of disputes between private individuals that arose out of torts, simple contracts, and succession. In addition, there were problems of status, both because Roman society was sharply divided (patricians, plebeians, and slaves) and because Romans distinguished themselves from the citizens of other states. Although Roman society soon changed radically, the focus of Roman law had been set.

By the second century CE, Rome was enormous and headed by an emperor whose status and power were unequalled. Nevertheless, civil law, the basic law of the empire, continued to look at society from the point of view of individuals, and its basic concerns were those of individuals.

Civil law remains at the heart of Western law. Western jurists use a model of the universe composed of discrete entities—persons—who create legal obligations by the exercise of their individual wills. They also assume that these persons can get their disputes resolved by professionally trained judges. These persons are no longer human beings but the central figures of the legal system. They are sometimes called rights bearers. Even the state can appear as a person in a domestic lawsuit. States are the persons of public international law, whose terminology and structure are based on Roman private law.

Traditional Chinese Law and Codes

From the Chinese point of view, the central element of their legal system was a body of rules promulgated by the emperor. The system of government that developed in China after its unification in the third century consisted of a strong central government headed by the emperor, who ruled through a highly centralized bureaucracy. The emperor’s power was absolute. There was no doctrine of separation of powers.

The collection of rules is called a code. Each dynasty had its own code—for example, the Great Ming Code, the Qing Code—according to the name of the dynasty. Since the formal legal system was an integral part of the governing apparatus of the empire, when the empire collapsed in the early part of the twentieth century, the legal system disappeared along with everything else. Before that, there is clear continuity from the Tang dynasty to the end of the Qing (1912), and, most likely, the tradition stretches back many centuries before the Tang.

During most of the period for which there is a clear documented tradition (653–1911), the Chinese legal system governed a territory and a population that was greater than that governed by Roman law. In addition to governing China itself, China’s legal system formed the basis of the formal legal systems of nations subject to its influence, most notably Korea, Japan, and Vietnam. It was only when Roman law spread beyond Europe that it began to exceed Chinese law in scope.

In addition to the codes themselves, there were annotations to the codes and many other collections of statutes and regulations still in effect. There were also thousands of decisions in cases that arose under the codes, in addition to studies of customary law in which elements of what we would call family and commercial law can be found.

It is best to regard the code as a treatise of sorts, but not in the sense of Western law. The Qing Code, the final code in the tradition, is the product of a great deal of thought. The rules show much refinement. There are many cross-references. It comes close to constituting a scientific analysis of what the Chinese regarded as law. It is not just a compendium of rules, and the rules themselves have been refined and harmonized to a considerable degree. General principles have been factored out. It is a true code that represents the considered view of some of China’s leading jurists as to how to think about what law is. It showed the way to analyze legal problems and provided methods for applying legal rules to them.

By the end of the Qing dynasty, the code was not the direct or immediate basis of decision for most cases (although it contains detailed rules). Rather, the cited authority would most likely have been a li, a set of detailed rules normally based on decisions or interpretations by officials at the highest level of the central government. They were printed following the article of the code to which they referred.

If there was an applicable li, or substatute, it was applied instead of the statute. In addition, there were a number of statutes and regulations outside the code. This is also the case in Western law. Precedent plays an enormous role, as do the opinions of eminent authorities and, on occasion, other statutes and regulations. Nevertheless, the code remains at the heart of the system, and serves as the basis for organizing instruction in civil law. The same holds true for Chinese codes.

The Chinese code was a directive to district magistrates telling them when to punish and precisely what punishment to inflict in any circumstances perceived by the state to be legally significant; that is, as injurious to the emperor. District magistrates, the lowest ranking officials who represented the central government, were the emperor in miniature. They exercised all the powers of the state in many functions, including collecting taxes, providing for defense, carrying on public works, conducting religious ceremonies, supervising examinations for entry into the civil service, and deciding cases. Deciding cases was simply one administrative task among many, an aspect of the mag
istrates’ general charge to keep order. Magistrates adjudicated cases but were not judges in the Western sense.

Imperial Law

By the time the legal system was formalized, the primary obligation of every Chinese was to fulfill the duties assigned by the emperor. The law was concerned with the enforcement of imperial policy. All human activities had to be carried on to fit into his scheme for directing society. Consequently, imperial law took note of human activity only as it was perceived to affect imperial policies. Thus many aspects of marriage were dealt with since marriage and the family system were basic to the nation. An institution similar to the English mortgage, the dian, was given considerable space because it was important to know who owned land so that the government could collect taxes on it.

Tang emperor Li Shimin remarked, “The wise emperor governs his officials; he does not govern the people.” The primary focus of imperial law was the regulation of the official activities of bureaucrats, their conduct or their failure to carry out their duties. Such matters have been dealt with in the United States by internal regulations of government offices. But they are not regarded as being part of the American legal system, except on the rare occasions when they are relevant to some action that is being brought in the regular courts, such as a wrongful discharge.

Judicial Process

The code was administered by career civil servants who were selected by competitive examinations based on the Chinese classics. Law was not one of the subjects tested. There were no facilities for training jurists, although some magistrates might have picked up some legal knowledge on the job.

The system was not based on the idea of rights and their enforcement. The adversary trial, which Westerners regard as standard, did not exist in connection with enforcing the code. No lawyers represented parties at a trial. Instead, when a magistrate took jurisdiction over a case, he called in all interested parties and interrogated them. If there was significant, real, nontestimonial evidence, such as a corpse, he examined it. Finding the facts was regarded as much more difficult and important than finding the law, something that the magistrate tended anyway to leave to his clerk. The magistrate made a preliminary decision, and it was reviewed in exactly the same way that superior officials would have reviewed a decision to increase the area’s tax assessment, simply a part of the system of bureaucratic control.

The proceeding could be quite dreadful for everyone. All persons concerned, including complainants and witnesses, were usually imprisoned pending conclusion of the matter. Interrogation often involved torture. The least severe punishment, beating, could nevertheless be crippling or even fatal. Despite this, the system seemed to function in a way the government found satisfactory, and it was not so unbearable as to cause the populace to revolt. With minor changes, it survived for many centuries.

Informal Legal System of Traditional China

Along with the formal legal system of imperial China, there was also an informal system. For example, though the code did not deal much with contracts or other commercial matters, the Chinese had an active and sophisticated commerce. They had developed devices similar to negotiable instruments and had a number of business arrangements, such as agencies and partnerships. It was possible to get disputes over these matters resolved by magistrates, but the people used other devices, such as mediation by village elders or guild procedures. There were even persons who performed many of the functions of lawyers, such as drafting complaints and appeals. An elaborate body dealt with such matters as tenancy, debts, and family law. The Chinese did not think of such matters as legal.

Contact with the West

Everything in China changed following contact with the West in the nineteenth century. Initially, the Chinese government refused to let Europeans enter China or do business in the country, except in a small area near Guangzhou (Canton). The Europeans insisted on being permitted to trade inside China and carried on a series of wars to achieve their aims. Once they got in, the Europeans did not wish to be subject to Chinese law, which they regarded as barbarous. They forced the Chinese to let them have their own courts for both criminal and civil matters. This principle was called extraterritoriality.

There were certain areas in important Chinese cities, notably Shanghai, that were self-governing foreign enclaves (called foreign concessions); thus in parts of China, foreign legal systems were functioning in place of the Chinese system. This led to a movement to establish a Western-style legal system in China. It was thought that a Western-style system would get rid of extraterritoriality. In addition, some Chinese intellectuals believed that European legal systems were superior.

Republican Legal System

This movement accelerated after 1912 when the Guomindang, the Chinese Nationalist Party, came to power. The new government’s institutions were essentially based on those of the United States, modified by Sun Yat-sen to reflect his sense of China’s needs and traditions, as well as by his perception of American progressivism at the time. As the Republican government grew stronger, it attempted to establish a Western-style legal system. In addition to establishing a system of courts, it enacted a series of Western-style codes. These are the so-called Six Laws: the Constitution, the Civil Code, the Criminal Code, the Codes of Civil and Criminal Procedure, and administrative law. The Six Laws served as subject-matter headings under which other laws could be placed. For example, the company law (corporation code) was placed under the heading Civil Code.

About this time Chinese began to study Western law abroad in Europe, North America, and Japan. In Japan Western-style faculties of law were well established, and Western codes had been adopted. Western-style law schools also began to develop in China. Legal education was organized after the European model. Both in the law departments of state universities, such as Nanking Central University, and in private universities, usually Western missionary institutions, Western-style codes were explicated in the European manner, though sometimes according to the American case method. Although a few law schools remained open during the Cultural Revolution, legal education came to a halt until after Mao died and did not revive until 1978 or 1979.

It is difficult to say what the effect of all this legal activity was. It seems certain that it had no effect on the lives of the vast majority of Chinese who were peasants (over 80 percent). They lived the lives that had always been theirs. Mostly concerned with survival, they arranged their family affairs as they always had, made arrangements with or punished local criminals, and tried to avoid the government and its tax collectors. Since many urban Chinese had got used to a Western legal system because of their dealings with Westerners, and in some cases because they lived under it in the foreign concessions, there was some use of the new Western system in civil as well as criminal matters.

Law in Maoist China

When the war with Japan ended in 1945, the civil war between the Nationalists and the Communists resumed. Reestablishing and strengthening the prewar legal system was a low priority, although a new constitution was promulgated. The Communists won the war in 1949, and one of the first acts of the new People’s Republic of China (PRC) was to repeal all the laws of the old Nationalist government. Gradually, the judges from the old government were purged, and the law professors were either purged or
retrained.

This did not mean, however, that there were no laws or law education. Most of the Western-style law schools continued to function through much of the first decade of the PRC. Initially, the same professors taught the same material that had been taught before Communist rule. Within a few years, they were either replaced or reeducated, usually by their former students who were trained in Soviet law by Soviet teachers sent to China, or by Chinese who had studied in the Soviet Union.

Most of the leaders of the new government had little education, and few had studied law. Many of those who had such knowledge survived and remained in China and were used by the new government to help frame the new legal system. They became quite visible after the change in policy that resulted in the formation of a completely different system after 1978.

The China that began on 1 October 1949 had within it two legal traditions that had not been destroyed. One was the concept of law as an aspect of the government of a centralized bureaucratic autocracy. This approach to law was inherent in the system of government that the Communists inherited. The second was the Western concept of law, a system based on individual rights and administered by impartial professional tribunals separated from the administration. This system was overtly rejected by the Communists when they took power, but to the extent that they thought about legal systems, this was what they had in mind. They had adopted the Western definition of a legal system while rejecting the system itself.

There was a new legal system, but it was fragmented and local and did not deal with many of the problems faced by the government of a densely populated area with significant industry and trade and large cities. And, as always in China, it was not easy to escape the past. To control the entire country, it was felt necessary to adopt the traditional Chinese device of a centralized bureaucracy, with the consequence that many characteristics of the imperial government remained. The whole society was organized to fulfill the purposes of the central government. Individuals were subjects who were to do what they were told so the purposes of the government could be fulfilled. There was no concept of rights or separation of powers. The influence of the past was not limited to the traces of the empire. The Republican period had also left its mark, particularly the Six Laws and the system that enforced them. But the Communists also developed some novel institutions in the base area of laws they continue to use. In addition, they began immediately to enact new legislation.

Law Based on Ideology

The important new element that shaped the new institutions and changed the old was the ideology of the Chinese Communist Party. The Chinese call it “Marxism-Leninism, Mao Zedong Thought,” also known in the West as Maoism. Marxism in any form is a very complicated doctrine; therefore, what follows here is basic and generalized.

The most important basic theory is the belief that there are laws that govern human society that are quite as definite and demonstrable as the laws of physics, and that these laws had been discovered through Marx. The life of mankind is a linear process, not a static reality. It is in constant flux. The key to the changes that occur in society is found in the productive forces. As these develop, products in excess of need appear, and some individuals appropriate the product of the work of others. The relations of production further determine the whole range of phenomena to which Marx gives the name superstructure. This includes all political institutions, especially the state, all organized religion, political associations, laws and customs, and finally human consciousness expressed in ideas about the world, religious beliefs, forms of artistic creation, and the doctrines of law, politics, philosophy, and morality. Thus legal institutions and legal relations are, in essence, ephemeral. They are elements of the class struggle created by the class that controls the means of production in order to maintain its position. As the class struggle progresses, and a new class takes over, the institutions will change to reflect the desires and needs of the new rulers.

The only real right at this stage is the right—and indeed the duty—of the proletariat and its instrument, the Communist Party, to eliminate the domination of the bourgeoisie and establish the socialist system. Crime is a symptom of a defective society.

Marxism, as the Chinese understood it, affected many changes in attitude toward traditional institutions that caused them to disappear or suffer radical change. At the same time, it provided a sort of glue that kept society together. The governing ideology helped the Chinese to form new institutions to replace the old and deal with new conditions. Nowhere was this more evident than in the law. Marxism required the elimination of the old system. At the same time, it provided a conceptual framework for the construction of a new one.

The question of who owns or can own property or how interests in the property are transferred or even the question “what is to be done when A kills B?” are not what the Chinese legal system is about. The legal system is always about benefiting and protecting the interests of the ruling class, as are all other social institutions.

The divisions of bourgeois social analysis—religion, law, education, commerce, and industry—do not necessarily reflect the way a Communist would view the same society. To persist in looking for institutions that Westerners regard as legal is futile. Still less do the divisions Westerners give to law have any meaning. Public law, private law, property, torts, succession, all have no real significance. Even if institutions are given the same names that we use, such as contracts, the meaning will be different.

While it is possible to retain the appearance of a bourgeois legal system—courts, codes, lawyers—in the period of transition to Communism, the system will, in fact, have changed radically. Perhaps the most important thing to change is the notion of permanence. Since every social and governmental institution is simply a device for enforcing the control of the ruling class, none has any independent existence or validity. Due process and all the apparatus of human-rights protection may be preserved or established if the existence of those institutions is perceived by the party to be in the interest of the revolution, but if they do not assist that process, they will not be permitted to exist. Thus it would be possible to have the right to counsel, the right not to be forced to incriminate oneself, and the right of appeal before an independent judiciary. It is possible at any moment to change the rules. If it is regarded as harmful to the revolution to recognize private ownership and the state’s duty to compensate the owner for expropriation, this right will not be recognized, and there will be no compensation. If enforcement of a contract right, such as a right to demand repayment of a loan, is regarded as not useful, the right will not be enforced.

Many of these concepts are embodied in the formal legal system of present-day China. However, they mean little in practice, but it is possible to conceive of a Communist society in which such a system is operative for a significant period. There seem to have been some tentative moves in that direction in China in the late 1980s, but they were brought to a halt by the events in Tiananmen Square in June 1989.

Thought Reform

The principal technique for achieving and advancing change in thinking on the mass level was the campaign, or movement, (yundong). On an individual level, the technique was thought reform, sometimes called brainwashin
g. Thought reform must be considered in any treatment of the Chinese legal system during the Maoist years. Both the campaign and thought reform were used to accomplish purposes that Westerners would not recognize as legal—backing national policies, such as opposing the United States and aiding Korea, for instance. But they can also be used to deal with what Westerners regard as legal matters, such as land ownership, marriage, tax collection, and crime. There was an effort to have those accused of crime not merely to confess but also to change their thinking. This policy continued to the end of the Maoist years. Confessions continued to be the rule. Whether they resulted from thought reform or physical coercion or a combination is not clear.

The campaign and individual thought reform were effective, on the whole, and fit the general aim of the party. They were, however, time consuming and not always practical. To accomplish the varying tasks of government, it was much more practical simply to issue orders. Since China was so large, it was also necessary to make use of a bureaucracy to carry out most programs. Orders were issued by a particular ministry and these would be transmitted through subordinate levels to local offices for enforcement.

The precise way this was done is not completely clear. Many of the statutes and regulations, even today, are classified as being for internal use (secret), and are not available to foreigners or even to most Chinese. Those that are generally available consist for the most part of statutes, directives, and regulations of the central government, though there are also many local regulations. There were at least two kinds of statutes: general directives, such as Several Provisions of the State Council Regarding Improvement of the Food Control System, and precise, narrow rules, such as Notification by the Ministry of Posts and Telecommunications on the Regulations Governing the Time Limits for Refunds on Money Orders and for Making Inquiries About Them. The common feature of all these laws, from those dealing with the most important interests of the state to those concerned with relatively trivial matters, is that they are almost entirely directed toward government officials, not to the public, just as in the days of imperial law. However, the rules of the PRC are much more pervasive since the control of the whole society, especially the economy, is much greater than was that of the imperial government.

Judicial Process in the PRC

In the early days of the PRC, the system of courts was carried over from the Nationalist period, even though all the laws of that government were repealed. These courts continued to function where they had functioned before, particularly in the large cities. It was necessary to retain not only the courts but also a number of nationalist judges and to recruit new ones from the existing pool of law school graduates, although they were later replaced with loyal party members.

It is not clear just when the old system disappeared, but certainly by the time of the first formal constitution in 1954, the new system had been established. On paper this consisted of a familiar hierarchical court system that went from a people’s court at the local level to the Supreme People’s Court in Beijing with two intermediate appellate courts in between.

One important use of the courts was to serve as the vehicle for the confiscation of foreign assets. Claims were filed against foreign concerns for back taxes, wages unjustly withheld from workers, fines for violation of regulations, and other infractions.

Once all industrial, commercial, and agricultural property was nationalized, there could be no commercial litigation unless the various state enterprises sued each other, which seems to have happened quite often. Apparently there was no formalized system of arbitrating disputes among state enterprises as there was in the Soviet Union. But there was some civil litigation between private citizens. The civil suit was usually part of an effort by local party officials to get the parties to settle their differences. Courts were active participants in this process, but judges did not act as independent adjudicators and did not give what Westerners would regard as legal reasons for their actions.

Most treatment of crime, including punishments, was handled by the Security Administration—the police. A trial was the final formal step in an administrative proceeding that took place within the Security Administration. It was usually only a formality whereby a sentence already determined was formally adjudged for the record, although it could be public if such a proceeding was regarded as useful in educating the masses. In any case it simply confirmed a decision that had already been made. This is not to say that local officials acted without supervision or without reference to rules. They were subject to rigorous supervision by their direct superiors as well as by other agencies, particularly the party. They were expected to follow the rules and policy directives of their superiors and to make complete reports and keep accurate records to show they had done so.

The dominant fact about the legal system is that it was and is a part of the political-legal system composed of the Security Administration, the procuracy (a state agency that supervised the observance of the law), and the courts. This made it possible to coordinate both policymaking and its implementation. The Security Administration was much larger than either the procuracy or the courts, and officials in the Security Administration were often transferred laterally to the procuracy or courts, maintaining the subservience of the courts to the police. The overlapping identities of these organizations became even more obvious in the 1960s and was recognized in the 1975 constitution, when the procuracy disappeared.

But even if the courts and procuracy had been equal in power to the Security Administration, the fact that they all worked together as a system shows that there was no concept of judicial independence, no separation of powers. At best there was a separation of functions. Adjudication was seen as one function of government; the police and procuratorial functions were others.

Throughout the 1950s and 1960s there remained a significant group of people who were trained in European law, either in its capitalist or socialist form, who continued to work in the field, at least in an academic way, until the Cultural Revolution. Although their work was not visible, this meant that when, in the late 1970s, there was a change in attitude toward Western institutions and contacts, there was a cadre of jurists able to draft Western-style codes and reopen the Western-style law schools. In the majority of cases, their knowledge was entirely theoretical. They had never actually used the law they taught or studied in the kind of society for which it was designed. Still, they had an awareness of Western concepts and institutions.

During the Cultural Revolution (1966–1976), most traces of a formal legal system disappeared, although there were still courts.

Law after 1979

While traces of the imperial Chinese legal tradition and that of Republican China are present in the legal system of the new regime that arose after 1978, the most obvious influences are those of the Mao years. After Mao died in September 1976, the faction led by Deng Xiaoping prevailed.

Two elements of the policy of the new regime are especially relevant for law. One was the opening to the outside, which meant that China would welcome foreign investment and technology and would increase foreign contacts by means of allowing Chinese to go abroad and foreigners to come to China. This plan required a legal framework that would reassure foreigners of the safety of t
heir dealings with China. The second was the emphasis on the importance of the rule of law. What this meant to the Chinese officials who propounded it is not clear. None of them had any personal experience of a Western legal system, and they certainly did not intend to give up much power. Most of them had suffered during the Cultural Revolution, however, and they seem to have been searching for a more regularized society, one in which people behaved by rules according to established procedures. They apparently wanted at least to reduce the importance of the campaign and to get rid of the doctrine that policy is law.

All institutions associated, however vaguely, with the concept of law were revived or established. Codes of law, law schools, courts, lawyers, and legal publications appeared in vast numbers. The result has been the establishment of something that looks like a Western legal system.

The new legal system that has been established in China on paper since 1978 may eventually become such a system in fact. As Chinese society changes, new institutions will probably emerge that are neither Western nor traditionally Chinese. The village and township enterprises are an example. It is very difficult to fit them into either Western or traditional Chinese concepts of ownership or business organization. One fact remains: Chinese law, past and present, has to be examined on its own terms. Categories of Western law do not work. In China there is simply one body of law.

The ultimate form of the Chinese legal system cannot be predicted. It seems likely that it will continue to look like a Western system but contain the influence of its own traditions in ways hard to foresee. It will almost certainly be significantly different from the legal systems of the West.

Legal System—History (Fǎzhìshǐ 法制史)|Fǎzhìshǐ 法制史 (Legal System—History)

Western Legal Perspectives