China's Long March toward Rule of Law

By Randall Peerenboom | Go to book overview

Notes
1
To cite one among many possible examples, in an article on the role of judges and lawyers in defending rule of law, Adama Dieng (1997: 551) claims that the “experiences of many generations of jurists from highly diverse nationalities” demonstrate that rule of law requires an independent legal profession. For similar such claims, see the citations in Lee (2000: footnote 39).
2
See Chapter 4.
3
See deLisle (1999).
4
See Chapter 3. Geoffrey Walker (1988: 36–37) is an exception, as he explicitly includes a competent and independent legal profession among the requisites of a thin theory of rule of law.
5
Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, held in Havana, Cuba, August-September 1990, and welcomed by the 45th General Assembly of the United Nations in resolution 45/121, adopted December 14, 1990. The Basic Principles cite several international rights documents that require access to counsel, particularly in criminal cases. China has signed two of them and ratified the second: the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. The Universal Declaration of Human Rights (UDHR) contains similar provisions requiring a fair and impartial trial in which the accused “has had all of the guarantees necessary for his defence. ” Scholars are divided on whether the UDHR is legally binding in whole or in part or not at all on members of the United Nations.
6
Walker (1988: 36–37).
7
Abel (1995: 20–21) notes, however, that on the whole the South African legal profession failed to champion rule of law and that “the vast majority of practitioners and the organized profession actively or passively supported the government. ” More generally, while the legal profession in Ghana and Malaysia supported the judiciary against attacks by the authoritarian ruling regimes, the legal profession failed to oppose McCarthyism in the USA, the German occupation of France, or Fascism in Italy. Abel (1995: 10).
8
Macauley (1998). On the importance of law in practice, see generally Scogin (1990: 1325–1404); Bernhardt and Huang (1994).
9
While never promulgated, the 1906 draft Qing Criminal and Civil Litigation Law included a chapter on lawyers. This law was revised in 1911 as the Draft Criminal Litigation Law and Draft Civil Litigation Law. However, the Qing dynasty toppled before these laws took effect. Xiao Shengxi, ed. (1996: 30).
10
These regulations were supplemented by more detailed regulations on registration, disciplinary actions, and examinations of lawyers. Conner (1996: 216); Xiao Shengxi, ed. (1996: 30–32).
11
Growth then slowed over the next decade, so that by 1943, there were only 9,245 lawyers registered with the MOJ. Conner (1996: 230).
12
By way of comparison, Japan in 1935 had one lawyer for every 9,700 people. Conner (1996: 230).

-384-

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China's Long March toward Rule of Law
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Preface ix
  • Abbreviations xvi
  • 1 - Introduction 1
  • Notes *
  • 2 - The Evolution of Rule of Law in China: the Role of Law in Historical Context 27
  • Notes *
  • 3 - Post-Mao Reforms: Competing Conceptions of Rule of Law 55
  • Notes 110
  • 4 - Rule of Law and Its Critics 126
  • Notes 175
  • 5 - Retreat of the Party and the State 188
  • Notes *
  • 6 - The Legislative System: Battling Chaos 239
  • Notes *
  • 7 - The Judiciary: in Search of Independence, Authority, and Competence 280
  • Notes *
  • 8 - The Legal Profession: the Quest for Independence and Professionalism 343
  • Notes 384
  • 9 - The Administrative Law Regime: Reining in an Unruly Bureaucracy 394
  • Notes *
  • 10 - Rule of Law and Economic Development 450
  • Notes *
  • 11 - Rule of Law, Democracy, and Human Rights 513
  • Notes *
  • 12 - Conclusion: the Future of Legal Reform 558
  • Notes *
  • References 599
  • Index 653
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