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

By Carlos Wing-Hung Lo | Go to book overview

Introduction

More than a decade has passed since Deng Xiaoping commenced restructuring the Chinese legal system. In December 1978, a sweeping judicial reform was inaugurated with the promulgation of the Communique of the Third Plenum of the Chinese Communist Party's Eleventh Central Committee. This condemned the previous legal nihilism and affirmed that law is essential for 'socialist modernization'. There followed the codification of law, revision of the Party and State Constitutions, reorganization of judicial organs and the revival of legal studies. Deng Xiaoping strove hard to replace the past practice known as the 'the rule of persons' by 'the rule of law', and this resulted in a national legal awakening. Law gradually acquired an authoritative and normative status denied in the Maoist era.

Since legal reform in Deng's China has proceeded in a 'socialist' framework, a few words need to be said at the outset about what that entails. The demise of Soviet communism shook the world but did not undermine the foundation of socialist law in China. China has moved far from the Soviet model, particularly in the pursuit of a Chinese-style socialist legal system throughout Deng's era; however, China did inherit a legal framework from the former Soviet Union. This must be understood as a distinct legal tradition. That Soviet tradition is held to be socialist because it is considered to rest on the material base of a'socialist mode of production' and operates in a regime where the Communist Party is supreme.1 Dominated by Marxist-Leninist ideology, Soviet theorists insisted that there are two incompat-

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1
See A. Y. Vyshinsky, The Law of the Soviet State, New York, The MacMillan Company, 1948. For detailed discussion here, see H. J. Berman, 'What Makes "Socialist Law" Socialist?', Problems of Communism Vol. XX, September-October, 1971, pp. 24-30; and J. N. Hazard, Communists and Their Law: A Search for Common Core of the Legal System of the Marxian Socialist States, Chicago, University of Chicago Press, 1961.

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