China's Legal Awakening: Legal Theory and Criminal Justice in Deng's Era

By Carlos Wing-Hung Lo | Go to book overview

Foreword

The study of law in the Chinese People's Republic is both frustrating and exciting. Frustration derives from the fact that the dominant ideology in the Chinese People's Republic combines very uneasily four positions on law. The first of these is a communitarian view which sees recourse to law (fa) as evidence of the failure of prescribed social mores (or li). The second is an ultra-humanistic view which reduces all legal statutes and acts simply to the actions of legislators (according to which view the 'rule of law' is impossible). Thus law may be seen only in a positivistic sense (no more than the act of the sovereign power). The third position, deriving from Soviet orthodoxy, sees law as no more than a function of class domination. There is a fourth position, which owes much to the Soviet theorist Pashukanis but for Stalinist reasons has rarely been acknowledged as such, that law has increasingly mirrored commodity relations; it reached its high point in capitalism, as indeed did the commodity system, but with the transition to communism law will be transcended.

So much for the sources of frustration, now what about the sources of excitement? It is clear that the communitarian position still holds but the practical necessities of a modern market society demand its modification. The study of Chinese law can add much empirical evidence to adjudicate the liberal-communitarian debate which has so preoccupied political theorists in the past decade. Second, ever since Dicey made the point that the rule of law may be said to be in effect once the state just becomes another actor, similar to all other actors in legal disputes, jurists have challenged the reduction of law to the actions of legislators. That challenge may reflect what many Chinese theorists describe as the 'bourgeois separation of powers', but one wonders how 'bourgeois' the separation has to be and might speculate on the validity of the separation of powers for all modern societies. Third, it is becoming quite clear that class reductionism is particularly dangerous; but can one dismiss it totally when one considers affirmative action and stronger forms of that term? Fourth,

-vii-

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