Domestic Law Reforms in Post-Mao China

Domestic Law Reforms in Post-Mao China

Domestic Law Reforms in Post-Mao China

Domestic Law Reforms in Post-Mao China

Synopsis

This volume explores various aspects of the law in transition in post-Mao China. Stanley Lubman's introduction places each of the substantive chapters in the larger context of Chinese legal studies. Edward Epstein analyses the transplanting of European and Anglo-American legal ideologies into China, and the dilemmas this poses for the rule of law and legitimation in the reform period. Murray Scot Tanner analyses reforms in the legislative process, focusing particularly on the separation of the Communist Party from day-to-day legislative affairs and more pluralistic tendencies in the legislative process. William C. Jones, by addressing the opinion of the Surpreme People's Court regarding implementation of the general principles of civil law, raises compelling questions about legal interpretation in China in the context of social reform. James Feinerman analyses developments in Chinese contract law, raising the question as to whether in China it can form a basis for predictability and certainty in commercial transactions that are integral to the economic reforms. Judy Polumbaum studies developing efforts to enact a press law, reflecting the uses to which law has been put in pursuit of the political issue of press reform. Finally, Pitman Potter analyses the emerging concept of judicial review in the context of the Administrative Litigation Law of the PRC, an important aspect of political reform in China. By addressing these issues, the authors aim to reveal the various aspects of the developing autonomy that is embodied in China's legal reforms.

Excerpt

The law reforms that were begun in China during the 1980s marked the beginning of a journey that will be very long--if it continues at all. Centuries of tradition before the rule of the Chinese Communist Party (CCP) was established and decades of that rule made China inhospitable to the use of formal legal institutions to define and vindicate the rights of individuals and organizations, whether amongst themselves or against the state. During the 1980s, however, the Chinese leadership (or, at least some Chinese leaders) began the work of creating such legal institutions. These chapters inquire selectively into the initial accomplishments of Chinese law reform, the mixed intentions behind them, and the difficulties they face.

The Context of Chinese Law Reform

By the beginning of the 1990s, substantial clusters of Chinese legal institutions had emerged, but how meaningful they might become was highly uncertain. Formidable limitations on their activity included doubts about their basic functions and purposes. Throughout the previous decade of reform, the Chinese leadership was unable to agree on the meaning and content of "socialism with Chinese characteristics" and on the trajectory and speed of progress toward that goal. General agreement on the function of law, consequently, was lacking as well.

Western legal forms and concepts were suspect in the eyes of some Chinese leaders and many officials outside Beijing, who saw them as tainted by bourgeois liberalism. Limits on reform were expressed in Deng Xiaoping "Four Cardinal Principles," which were announced long before the bloody Tiananmen massacre ended Beijing's bright spring of 1989. Law reform was bound in an ideological straitjacket: Although even within its grip considerable institution building was accomplished because there was so much to do, law has usually been treated as a technical adjunct to economic reform and a faithful creature of CCP policy.

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