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China Developments after 1949
According to Chinese communist ideology, the party controlled
the state and created and used the law to regulate the masses,
realize socialism, and suppress counterrevolutionaries. Since it
was the party's view that the law and legal institutions existed to
support party and state power, law often took the form of general
principles and shifting policies rather than detailed and constant
rules. The Communists wrote laws in simple enough language that
every individual could understand and abide by them. Technical
language and strict legal procedures for the police and the courts
were dispensed with so as to encourage greater popular appreciation
of the legal system.
Moreover, Mao Zedong maintained that revolution was continuous,
and he opposed any legal system that would constrain it. Whereas
Western law stressed stability, Mao sought constant change,
emphasized the contradictions in society, and called for relentless
class struggle. In this milieu, the courts were instruments for
achieving political ends, and criminal law was used by the party to
conduct class struggle. The emphasis was shifting constantly, and
new "enemies" were often identified. Mao believed it unwise to
codify a criminal law that later might restrain the party.
The Maoists wanted the administration of justice to be as
decentralized as possible in order to be consistent with the
"mass line" (see Glossary).
Neighborhood committees and work units,
supervised by local officials, used peer pressure to handle most
legal problems in consonance with current central policies. The
police and courts were left to handle only the most serious cases.
In both traditional and contemporary China, political and legal
theory tended to support such methods. Mao was unconcerned that a
person contesting the result of a group decision had nowhere to go
for redress.
After 1949 the party also greatly altered the character of the
legal profession. A number of law schools were closed, and most of
the teachers were retired. Legal work was carried on by a handful
of Western-trained specialists and a large number of legal cadres
hastily trained in China. From the beginning these two groups
disagreed over legal policy, and the development of the legal
system reflected their continuous debate over both form and
substance.
The Western-trained specialists were Guomindang-era lawyers who
chose to cooperate with the Communists. Because they were
considered politically unreliable, the party initially ignored most
of their arguments for a modern legal system. As the 1950s
progressed, however, this group was instrumental in China's
adoption of a legal system based on the system of the Soviet Union.
In general, the specialists wanted codified law, enforced by a
strict Soviet-style legal bureaucracy. Without such procedures,
they felt, there would be too much arbitrariness, and eventually
the legal system would become ineffective. Many of these
specialists passed from the scene when the Soviet model was
abandoned in the late 1950s, but some became party members and
gained influential positions.
In the first thirty years of the People's Republic, the new
legal cadres--chosen more for their ideological convictions than
legal expertise--conducted the day-to-day legal work. These cadres
favored the Maoist system of social and political control and
regarded themselves as supervisors of the masses who subscribed to
a common set of communist values. The new cadres saw this common
ideology as providing better overall direction than strict legal
controls could. They believed that China was too large to be
governed by any single set of fixed rules or a legal bureaucracy.
They preferred to administer justice by simplified directives
tailored to the needs of local communities so that the people (and
the new cadres) could participate fully in their implementation. As
part of this plan, the cadres organized "study groups" to
familiarize every citizen with current directives and circulars.
Most cultures agree that the purpose of criminal law is to
control deviancy--the Chinese traditionally have sought to do so
through peer groups rather than through the courts. This practice
continued after 1949. Ideally, peers helped the deviant through
criticism or shuofu (persuading by talking). The stress was
on education and
rehabilitation (see Glossary),
a policy linked to
the Confucian and Maoist tenet that, with patience and persuasion,
a person can be reformed.
Data as of July 1987
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