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China

 
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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


China - TABLE OF CONTENTS

  • China - Party and Government

  • China - The Political Process

  • China - Foreign Relations

  • China - Criminal Justice and Public Security

  • China - National Defense


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