Domestic Law Reforms in Post-Mao China

By Pitman B. Potter | Go to book overview

1 Law and Legitimation in Post-Mao China

Edward J. Epstein

The Chinese law reforms derived from a combination of influences. While the impetus for increased regularity and formalism in China arose in part in reaction to the radicalism of the Cultural Revolution, foreign concepts of law played an influential role in the structure and content of legal reform. The process of legal transplanting from abroad affected virtually all aspects of the Chinese domestic law reforms.

Law was never more vigorously invoked to legitimate Communist rule in the People's Republic of China than it has been in the present era of reforms that are the subject of this book. It is true that many laws were made in the Chinese Soviets 1 and again in the consolidation of Communist rule in the 1950s to legitimate the Socialist transformation of Chinese society. 2 But the breadth and intensity with which post-Mao reformers have engaged in transplanting laws and applying legal ideas and techniques to solve contemporary, above all, economic problems have no parallel since the Republican era and in some respects even surpass it.

Law in China has thus assumed two forms: First, it is still conceived and operates as an instrument with which to uphold the Socialist political order and perpetuate party domination, but it is also used to carry out and consolidate institutional, primarily economic, changes according to predetermined policies. In this instrumental form, law relies primarily on the state bureaucracy to transform power into political action and is backed up by coercion. Exercised in this form, domination is still legitimated by tradition, charisma, or the bureaucracy, and law is easily manipulated by the party. Second, law is also becoming an ideology which secures submission to power exercised according to law, with little or no resort to coercion. In this form law, not tradition or charisma, legitimates domination. Legal legitimation means the exercise of political power justified on the basis of legal authority created within relatively autonomous legal institutions by the ideological function of law; that is, the ability of law to bring

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