Those who use the past to criticize the present should be put to death, together with their relatives. 1
As the People's Republic of China (PRC) emerges from the era of the late Deng Xiaoping, a familiar shower of questions still riddles the issue of human rights. In this time of potential upheaval, law and policy analysts are anxiously watching the next generation of Chinese leaders deal with issues that effect the largest population in the world and thousands of Chinese political and religious dissidents under surveillance within that population.2 A renewed approach to the U.N. Commission on Human Rights in Geneva, increased interaction with the White House, and a revamped criminal law hold the promise of Chinese human rights reform.3 However, despite their importance, these policies will inevitably be studied incorrectly. Chinese laws with implications for human rights conditions are not truly modernizing, and the current field of scholars and analysts critiquing these laws is not currently equipped to say otherwise. This note will not only be the first to inform academics how to react to and interpret some provisions of the new Chinese criminal law, but it will also advise them one way to properly address international human rights in general.
Perhaps the greatest modern tension between the PRC and most countries comprising the rest of the international community, especially the United States, is China's apparent reluctance to entertain the notion of human rights or civil liberties in its domestic affairs. The United States has pursued the "human rights issue" in discussions of economic and political relations with China for years,4 and international organizations like Amnesty International have similarly decried China's policies as violations of the U.N. Declaration of Human Rights.5 These voices have been the loudest in a global conventional wisdom that China cannot compare with the "modern" democracies. Other than a few sinologists and comparative law academics, however, no one is comparing China to China. While China's stance on human rights may appear static or monolithic over the past two centuries to an external eye, we must look further to changes in the interpretation and implementation of human rights in order to verify such a conclusion, especially in light of the dynamism of political and social institutions in that same period. This paper will attempt to tackle the broader issue of China's human rights modernization or lack thereof by focusing on internal changes in one area recognized by human rights activists: the death penalty.
From the late imperial period of the Qing dynasty (1644-1911) to March 1997 when the new Criminal Law' was enacted, the imposition of the death penalty has not been modernized in theory or in practice in China. 8 This conclusion is based solely on the internal changes in Chinese criminal law and procedure, that is, it is reached after comparing China yesterday with China today. By "today," I specifically refer to China's newly adopted Criminal Law. Using indicia discussed below, I conclude that the PRC's new capital punishment scheme is as or more Confucian, or moralistic, as the system in place at the close of the dynastic era. In more concrete terms, China's social or Confucian reliance on executions as public and moral forms of justice is as strong now as it has been throughout China's "5,000 years of history," and the arbitrariness and politicization of the judicial process leading up to the execution is even stronger than it was at the turn of the century. While they are an earnest start, it is doubtful that even the new Criminal Law provisions can cure these ills.
This paper reaches this two-tiered conclusion by answering several questions. First, what is being said about the death penalty in the international arena? Second, what theoretical tool should be used to remove the biases of "external" interpretations present in this discussion? …