China's History: Law And Order Through Time

China's history and its approach to the rule of law are deeply intertwined. The country's legal tradition is one of the oldest in the world, and while its modern legal system is based on a mix of Germanic-style civil law, socialist law, and traditional Chinese approaches, the influence of earlier traditions persists.

The core of Chinese law has historically been based on Confucian philosophy, which emphasises social control through moral education, and Legalism, which focuses on codified law and criminal sanctions. These two schools of thought continue to shape China's legal system today.

Confucianism, with its belief in the fundamental goodness of humanity, advocates for rule by moral persuasion and the use of traditional customs and norms to guide behaviour. Legalism, on the other hand, maintains that humans are inherently evil and must be controlled by strict rules and uniform justice.

Over time, China has grappled with how to balance these two approaches and create a legal system that serves the needs of its people and government. The country's legal system has evolved through various dynasties and political movements, incorporating elements of both Confucian and Legalist thought.

Today, China's legal system is still influenced by these historical traditions, and the country continues to strive for the establishment of the rule of law, or fazhi. However, the interpretation and implementation of the rule of law in China differ significantly from the universal understanding of the concept.

While China has made significant progress in developing its legal infrastructure and education, challenges remain. The country's legal system must navigate the competing interests of impartially adjudicating cases while also being responsive to the will of the ruling Communist Party. Additionally, structural social differences and the internal and external legal cultures in China present further complexities.

As China continues to develop and reform its legal system, it is essential to recognise the unique historical and cultural context that shapes its approach to the rule of law.

The influence of Confucianism and Legalism on China's rule of law

Confucianism and Legalism are two Classical legal theories or philosophies that developed during the Spring and Autumn period and the Warring States period, a time that saw the most impressive proliferation of new ideas and philosophies in Chinese history. While both theories call for governmental hierarchy, they differ drastically in their views of human potential and the preferred means to achieve political order. Nevertheless, both theories have influenced and continue to influence the development of cultural, social, and legal norms in China.

Confucianism

The basic premise of Confucianism is the idea that human beings are fundamentally good. With this optimistic view on human potential, Confucius advocates for ruling through li – traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character, rather than through government regulations and penal law. The idea is that people will internalize the acceptable norms and only take proper actions. This will not only lead to a harmonious social order but will also improve an individual's inner character and the overall quality of society.

In the Confucian world view, rule of law is applied only to those who have fallen beyond the bounds of civilized behaviour. Civilized people are expected to observe proper rites. Only social outcasts are expected to have their actions controlled by law. Thus, the rule of law is considered a state of barbaric primitiveness, prior to achieving the civilized state of voluntary observation of proper rites. What is legal is not necessarily moral or just.

Legalism

Legalism (which henceforth will be called the fa tradition) is a popular—albeit quite inaccurate—designation of an intellectual current that gained considerable popularity in the latter half of the Warring States period. Fa thinkers were political realists who sought to attain “a rich state and a powerful army” and to ensure domestic stability in an age marked by intense inter- and intra-state competition. They believed that human beings—commoners and elites alike—will forever remain selfish and covetous of riches and fame, and one should not expect them to behave morally. Rather, a viable sociopolitical system should allow individuals to pursue their selfish interests exclusively in the ways that benefit the state, viz. agriculture and warfare. Parallel to this, a proper administrative system should allow officials to benefit from ranks and emoluments but also prevent them from subverting the ruler’s power. Both systems are unconcerned with the individual morality of the rulers and the ruled; rather, they should be based on impersonal norms and standards: laws, administrative regulations, clearly defined rules of promotion and demotion, and the like.

Influence on China's Rule of Law

The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches. For most of China's history, its legal system has been based on the Confucian philosophy of social control through moral education, as well as the Legalist emphasis on codified law and criminal sanction.

The two major Chinese philosophical schools strongly influenced the idea of law in China. Under Confucianism, the state should lead the people with virtue and thus create a sense of shame that will prevent bad conduct. Under Legalism, the law is to publicly promulgate standards of conduct backed by state coercion. The tension between these two systems is that Confucianism relies on tradition to make the leader the head of household of all China, while Legalism makes standard law that even the emperor should be bound by. The common factor is that both endorse to different degrees a paternalistic conception of the state, which knows better than its citizens and makes laws to protect them. This concept persisted throughout the imperial period, into the republican period, and can still be seen today.

The role of the Communist Party in China's legal system

The Chinese Communist Party (CCP) has historically viewed the law as a tool to control the masses and maintain its power. Since the formation of the People's Republic of China in 1949, the country has lacked judicial independence, with the courts not having authority beyond what is granted to them by the CCP-controlled National People's Congress.

During the Maoist period (1949-1978), the CCP exhibited a hostile attitude towards a formalised legal system, seeing the law as a constraint on their power. Courts were closed, law schools were shut down, and lawyers were forced to change professions or be sent to the countryside. The CCP instead favoured a system of social control rooted in Confucian philosophy, which emphasised rule by moral persuasion and education as a means of maintaining social order.

Following the Cultural Revolution, the CCP under Deng Xiaoping adopted an "open door" policy, utilising the law as a tool to support economic growth. This period also saw attempts to create a system of law independent of the CCP, which were ultimately abandoned after the Tiananmen Square protests and massacre in 1989.

Under Xi Jinping, the CCP has further subordinated the legal system to the party, with Xi emphasising the leadership of the CCP as essential to upholding the "socialist rule of law with Chinese characteristics". While the party continues to delegate day-to-day legal matters to state institutions, it maintains a dual system where those deemed a threat to the party-state are dealt with outside the law.

The CCP's influence over the legal system is reflected in the requirement for lawyers in China to swear an oath of loyalty to the party. Lawyers who refuse to follow the party line may have their licenses to practice law revoked. Additionally, the CCP's Central Political and Legal Affairs Commission maintains effective control over the courts and their personnel, ensuring that the law remains firmly under the party's leadership.

The impact of China's history on its interpretation of the rule of law

China's interpretation of the rule of law is influenced by its long history of legal thought, which has been dominated by two schools of thought: Confucianism and Legalism.

Confucianism

Confucianism, which emphasises moral persuasion and social norms over codified law, has been the dominant ideology in China for over two millennia. It holds that human beings are fundamentally good and that rulers should lead by virtue, creating a sense of shame that prevents bad conduct. This philosophy has shaped the country's social order and influenced its legal system, with education seen as the key to maintaining order. While Confucianism does not reject the use of formal laws, it considers them a subsidiary tool to be used against determined wrongdoers who cannot be influenced by moral instruction.

Legalism

On the other hand, Legalism, which advocates for the use of codified laws and harsh punishments to maintain social order, has also had a significant impact on China's history and legal system. This philosophy, which believes that human beings are inherently evil and self-interested, gained prominence during the Warring States period and influenced the first imperial dynasty, the Qin. However, the harshness of Legalism led to the quick demise of the Qin dynasty after only 14 years.

Impact on China's Interpretation of the Rule of Law

China's interpretation of the rule of law is shaped by the tension between Confucianism and Legalism. While the current Chinese legal system is primarily based on Western-style legal codes, traditional Chinese approaches continue to exert influence. The core of modern Chinese law reflects a blend of Germanic-style civil law, socialist law, and traditional Chinese elements.

The influence of Confucianism can be seen in China's emphasis on moral education and social norms as a means of maintaining social control. Additionally, the idea of "social rightness" (*yì*) is an important concept in Chinese legal thought, reflecting the Confucian notion of virtue and shame as a means of guiding behaviour.

At the same time, Legalism's emphasis on codified law and criminal sanctions is also evident in China's legal system. The country has comprehensive legislation covering various areas, including national laws, administrative regulations, and local rules. However, China's interpretation of the rule of law differs from the Western understanding, as it emphasises the leadership of the Communist Party and does not fully embrace concepts such as judicial independence.

In conclusion, China's history and the ongoing influence of Confucianism and Legalism have shaped its interpretation of the rule of law, resulting in a unique blend of traditional and modern, Western and socialist legal concepts.

The development of China's legal infrastructure

In the early periods of China's history, the concept of law was viewed purely in secular terms, and it was considered indicative of a moral decline and a disturbance of the cosmic order by Confucian thinkers. However, early emperors embraced Legalism as a way to exert control over their vast territories and growing populations. This integration of Legalism with traditional Chinese beliefs in the cosmic order resulted in a system where correct behaviour was seen as behaviour that was consonant with the appropriate responses set by law.

Over time, the legal system evolved, with the imperial period being characterised by the concept of law serving the state and exerting control over citizens. Efforts to reform the law codes by importing German codes began in the late Qing dynasty and continued into the republican period, resulting in the Provisional Constitution of 1912, which included the idea of equality under the law, rights for women, and broader rights for citizens.

The establishment of the People's Republic of China in 1949 brought about a more Soviet-influenced system of socialist law. During this time, the Communist Party emphasised the rule of law as a basic strategy for state management and began to develop a legal infrastructure. The current Constitution, created in 1982, states that no organisation or individual is above the law, and the People's Congresses and state administration are responsible to the people.

In recent years, China has continued to develop its legal infrastructure, with legal reform becoming a government priority in the 1990s. The country has passed numerous laws and regulations, particularly in the economic area, and has established mediation committees to resolve civil disputes and minor criminal cases. The legal system has also been influenced by traditional Chinese views, the socialist background, and the legal systems of Taiwan, Hong Kong, and other countries.

While China has made significant progress in developing its legal infrastructure, challenges and criticisms remain. These include the lack of independence of the judiciary from political pressure, high levels of corruption among public officials, and the inadequate number of qualified attorneys and judges.

The relationship between China's domestic law and international law

China's legal system has a long and complex history, with the country's current laws and legal system influenced by various factors, including traditional Chinese approaches, Confucian philosophy, and socialist law. While the country's legal system has evolved over time, the relationship between China's domestic law and international law has been a subject of debate and discussion.

The Influence of History and Philosophy on China's Legal System:

China's legal tradition is one of the oldest in the world, and the core of modern Chinese law is based on a combination of Germanic-style civil law, socialist law, and traditional Chinese approaches. Confucian philosophy, with its emphasis on social control through moral education, and Legalism, which emphasizes codified law and criminal sanctions, have played significant roles in shaping China's legal system.

The Impact of the Communist Party on China's Domestic Law:

Since the establishment of the People's Republic of China in 1949, the country's legal system has been influenced by the Chinese Communist Party (CCP). The CCP abolished the previous legal codes and attempted to create a system of socialist law, modelled after the Soviet Union. The CCP's view of the law and legal institutions as tools to support party and state power has shaped the country's legal system.

China's current legal system, established in the late 1970s, reflects the country's unique historical and cultural context. While China has adopted some international legal principles and practices, the country's domestic law remains heavily influenced by its own traditions and ideologies.

One key aspect of China's legal system is the emphasis on socialist rule of law, which prioritises political and legal organs believing in and upholding the law while following the CCP's leadership. This differs from Western concepts of judicial independence, where the judiciary is independent of political influence.

China has also been selective in adopting international legal practices, particularly in areas such as commercial law and intellectual property rights, to support its economic development and attract foreign investment. The country's legal system has been described as a "socialist legal system with Chinese characteristics," reflecting its unique blend of international and domestic legal influences.

Challenges and Criticisms:

China's legal system has faced challenges and criticisms, particularly in areas such as judicial independence, human rights, and the rule of law. The CCP's control over the legal system and the lack of a fully independent judiciary have been cited as obstacles to the country's progress towards the rule of law.

Additionally, China's legal system has been criticised for its high criminal conviction rate, retention of capital punishment, and lack of protection for certain human rights. These issues have been a subject of debate and discussion, both within China and internationally.

In conclusion, China's domestic law and its relationship with international law are shaped by the country's unique historical context, philosophical traditions, and the influence of the CCP. While China has adopted some international legal practices, its legal system remains heavily influenced by its own traditions and ideologies, creating a complex and evolving legal landscape.

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