Domestic Law Reforms in Post-Mao China

By Pitman B. Potter | Go to book overview

tion. Even then, some lawyers proved to be difficult to control, and it was too much of a risk to expose trials to the public. 165 Transcripts of some judgments and defense lawyers' statements have nevertheless been leaked. Ironically, they are thus published in the foreign press but remain secreted from the Chinese people. 166

The post-Mao reforms have broken down many old economic relations and put new ones in their places. The legal expression of these new economic relations emphasizes the autonomy of the individual, private property rights, and the role of the market. Civil and economic law in post-Mao China are couched in terms of rights and obligations, that is, realizing economic rights through the enforcement of legal rights. Moreover, the legal process, be it arbitration or litigation, is being held out as the means by which parties realize their rights. The political process by which China's leadership has sought to propagate a popular legal consciousness may have little or no effect in engendering the idea that law and legal process legitimate the exercise of state power. However, the surge of civil and economic cases suggests that by participating in the legal system to realize their economic objectives, parties believe that law and legal process do legitimate the exercise of private economic power.

As we have seen, this is most obvious in the enforcement of contractual rights and personal and property rights in tort. By their participation in the legal process parties are accepting the legal forms which analyze their economic relations with each other in the expectation of vindicating their respective positions as decisively and quickly as possible. In other words, by their active participation the parties believe or come to believe it is the legal process which determines the outcome rather than some economic, political, or other extralegal consideration. The advent of administrative litigation and the increase of administrative cases which will no doubt result is a sign that in the future law may also become an effective means of legitimating state power in China. Whether or not this will happen depends very much on the course of China's political development as well as legal change. Without even the appearance of judicial independence and impartiality, for example, it seems very doubtful that prospective plaintiffs will place much hope in the courts' ability to check the power of government. On the contrary, continued interference with the courts by party and government will cause disillusionment with the legal process which may affect the litigation of other claims. These are developments which will deserve our attention in the years to come.


Notes

The author would like to express his thanks to Yash Ghai, Sir Y. K. Pao Professor of Public Law, Faculty of Law, University of Hong Kong, and to Kent Greenawalt, Cardozo Professor of Jurisprudence, School of Law, Columbia University, for their helpful comments on this chapter in its various stages of preparation. Of course, responsibility for the views expressed and the errors which remain rests solely with the author.

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