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COPYRIGHT 2005 Berkeley Electronic Press
Abstract
This paper deals with the interactions between law and politics in the particular context of a post-revolutionary socialist regime embarked on a wide-ranging process of reforms--China since the end of Mao era. This theme intersects with a number of others which are essential to an understanding of Chinese society today : socio-economic changes and their relation to legality, the interactions between judicial transition and political changes, and, more systematically, the prospects for democracy. The time-frame of this paper includes a long period, which, for reasons of clarity, we will take as being from 1978 (at the time of the adoption of the policy of "reform and opening up", gaige kaifang) to the present day, which is to say more than twenty-five of the fifty-four years of the existence of the People's Republic of China (PRC), which was founded in 1949. One will argue that judicial reform in China has in fact constituted as much a technical response as a political response, unexpected after the violent events of Maoism, to the fragmentation of the Party State. Secondly, the contemporary forms of judicialisation of politics have been mostly institutionalised a posteriori in relation to social and judicial practice. Thirdly, since the mid-1990s both the growing differentiation between institutions and the professionalisation and networking (both national and international) of legal practitioners have made possible better anticipation of the stages of the modernisation of the legal system, and above all the preservation of its autonomy in relation to other reform programmes embarked on by Beijing. Lastly, we will see that the foundations of the legal-rational State in China are undergoing rapid change, and that a continuously increasing number of individuals are contributing to their definition. All this is evidence, in our eyes, of a historical process of construction of a legal State, but without any historical determinism as to the future form of a Rule of Law which conforms to the canons of the historical scheme. Indeed, some Chinese school of historians of the law suggest an inversion of the way in which the institutional modernisation of China has been conceived since the end of the 19th century. The classical adage to serve as the basis for reform should become: "Western knowledge as essence, Chinese knowledge as use", not the opposite.
KEYWORDS: law, politics, china, judiciary, courts
Introduction
This paper deals with the interactions between law and politics in the particular context of a post-revolutionary socialist regime embarked on a wide-ranging process of reforms--China since the end of Mao era (1). This theme intersects with a number of others which are essential to an understanding of Chinese society today : socio-economic changes and their relation to legality, the interactions between judicial transition and political changes, and, more systematically, the prospects for democracy.
Only apparently remote from these problems, our research has focused up to now on the sociology of interpersonal and particularized relations of the "guanxi" (2) type, applied to the transformation of the political system and its elites. In contrast with the analyses of the 1980s, which underlined the extent to which post-revolutionary deconstruction in China took place without recourse to the law, our work concluded that, just as illegal practices can survive with a modern judicial system, so the judicial system of the PRC manages to modernize itself gradually despite the persistence of clentelist, illegal or informal practices (3). The overlapping of the two processes seems in fact to participate in the emergence of a kind of political modernity, by contributing to the spreading of certain procedures peculiar to a modern State through the progressively institutionalised determination to constitute norms aimed at disqualifying clientelist practices.
This evolution in our research programme, which starting from an analysis of the circumvention of norms in the political sphere, has moved towards a sociology of institutions and of the law, is merely a reflection of other profound changes, observable as much on the level of objective social reality as on that of our understanding of these phenomena : the maturation of the "socialist market economy" since China's opening up in 1978, the improvement in the quality of the social sciences in China itself as much as that of international scientific production about the country, as well as the disciplinary enquiries peculiar to political science born of the spectacular rise in the role of the law in both the old and new democracies (4). In the current process of institutionalisation of judicial reform in China, the international phenomenon of "seizure of the political by the law (5)" finds a direct comparative echo, which cannot fail to interest us here.
From the mid-1980s on, the sociology of law was reborn in China, mainly from federated initiatives under the influence of young lawyers at the Institute of Comparative Law and of Sociology of the Law at the University of Beijing. This revival of the sociology of law, which since the 1950s had been restricted to a Marxist interpretation, is based on a return to the older authors, among whom Leon Duguit and the American comparativist Roscoe Pound remain the best-known, having taught in China and published Chinese translations of their work. While the overall level of work in sociology of the law remains relatively low, or at least very uneven, one must nonetheless take note of the formation of a cross-university and cross-generational knowledge community around personalities as diverse as Cai Dingjian, Ji Weidong, Jiang Mingan, Jiang Ping, He Weifang, Zhou Wangsheng, Han Dayuan, Xin Chunying, Wang Chenguang, Liang Zhiping or Tong Zhiwei (to mention only a few of the best-known legal scholars)--a community which is tending to grow in urban centres where academic legal culture had hitherto not been widespread (6). The quality as well as the diversity of the articles published in the journal Faxue yanjiu (Research in Law) of the Academy of Social Sciences, for example, or in the journals Lifaxue (Jurisprudence), Xianfaxue-xingzhengfaxue (Constitutional and Administrative Law) and Falixue-fashixue (Jurisprudence and History of the Law), published by the People's University in Beijing, are also some evidence of this dynamic.
Similarly, research programmes on China have gradually evolved during the course of the revitalization of society and the opening of the country to the world. Sinology has gone from a context (in the 1980s) of the predominance of micro-sociological analyses of social or political practices which otherwise ignored the evolutions of Chinese law, towards more macro-sociological considerations of the political meaning of judicial reform. Where the sociology of norms constituted the point of departure of some researchers (Hua Linshan and Isabelle Thireau, for example (7)), it was the stumbling block of a life's work for one of the best-documented sinologists of his time, the Jesuit Laszlo Ladany, founder in 1953 in Hong Kong of China News Analysis. In 1992 there appeared posthumously a book by Father Ladany entitled Law and Legality in China, which recognized the relevance of the application of a sociology of the law analysis to the Deng Xiaoping era (8). This field of research now has in Western China studies, not to mention the schools of Hong Kong, Taiwan or Japan, its own trends of thought with representatives as diverse as Jerome Bourgon, Stanley Lubman and Pittman Potter, Donald Clarke (historians and sometimes also practitioners of Chinese law), Karin Buhman, Michael Dowdle and Murray Scott Tanner (administrative law as well as sociology of institutions), and, one last example among many others, Randall Peerenboom and B. Bakken (philosophy of law).
These developments, as well as the consolidation of the People's Republic through its policy of de-Maoisation, have gradually led, on the subject of China, to a central question in political science, debated in the 1970s both by analysts of totalitarianism like Hanna Arendt and by analysts of communism like Claude Lefort: to quote the latter's formulation, "What happens to the law in a communist regime? What becomes of the idea of rights (9)?" In the context of post-Maoist China, therefore, what relations does the government maintain with the law? From a conceptual point of view, will the evolution of the representations and interactions between political power and the judicial sphere eventually involve an historic contingent relationship which allows the affirmation of proceduralist doctrines appropriate to the emergence of the Rule of Law, or will it continue to prevent the process of autonomisation and therefore of the separation of powers from taking place?
In order to tackle these questions correctly, it is necessary to stipulate the epistemological status of the law in this contribution. The law is not, in and of itself, our subject ; rather it is a medium which makes it possible to reveal political phenomena which hitherto have been rarely or poorly observed, and which, because they go beyond the initial political agenda, indicate the real questions asked of research, which is to say the workings of government and the prospects for political change. Obviously, while the law is a political product as much as a political concern, it in turn produces effects on the political sphere which reveal the "power of the law" as emphasized by Pierre Bourdieu (10). Nevertheless, in contrast with Bourdieu's approach on this point (11), it is advisable not to reduce the law to a mere medium or a mere agent, and, what is more, a conservative one, of the political. The rhetoric of the Rule of Law in China is not, or is no longer, confined to a ritual formula. Besides the obvious effects of self-legitimation for the regime, it produces new realities and systemic effects which we will indicate, precisely on the level of institutions, of procedures and of individuals. Thus it becomes indispensable to go into what constitutes the law, which is to say the texts of the law and the power of jurisprudence, even in a socialist world which still officially refutes its political and legal legitimacy ; precisely because this reticence is de facto purely theoretical in the daily exercise of the law. Likewise, the rebirth of the legal professions in China seems to be producing a milieu which is made up of a majority of individuals who are in love with modernity, of "liberals" in the political sense of the term (12).
The sources required for this work must therefore cover, all at once, first the sociology of the groups and institutions which contribute to the making of law, as well as their interactions ; second the quasi-judicial documents, such as pilot studies of laws and the debates arising in this context, when they are accessible ; and lastly the detailed content of certain laws, selected according to the degree of their potential politicisation, as well as the "explanations" or "judicial interpretations" (sifa jieshi) of the People's Supreme Court produced with a view to the application of laws or decrees. However, in opposition to the hope represented by the revitalization of the law, stand widespread incompetence, lack of independence, and corruption, without it being easy to discern which of these dimensions is the most insuperable obstacle to a more radically effective modernisation of the system. One last aspect of our methodology is that we will seek here to give an account of the dynamics of political change and innovation and to better understand them, rather than lingering over the ponderousness of the system or the logic of its reproduction, for these are generally well documented. When limited to the judicial context, the danger of this approach is of succumbing to a naivety of belief in the existence of a systemic and functionalist logic of the law or of juridicity, conceived mechanically as sources of political change. An analysis of the interactions between the law and politics should make it possible to avoid precisely such a trap, by restoring the life of texts and institutions as well as the paths of those who lead them. Thus, our approach follows the logic of the school of institutional history (13), which makes it possible to examine the hypothesis of incremental institutional development (14) as a possible source of political change, which is complementary to the hitherto dominant interpretation represented by the pure theory of rational choice.
The temporality of post-revolutionary society
The time-frame of this paper includes a long period, which, for reasons of clarity, we will take as being from 1978 (at the time of the adoption of the policy of "reform and opening up", gaige kaifang) to the present day, which is to say more than twenty-five of the fifty-four years of the existence of the People's Republic of China (PRC), which was founded in 1949. The concept of "transition", which is generally used to describe the reform process in China, but which in political science is more often used to describe the political processes of emergence from communism and/or of democratisation, cannot in our view be applied to the case of China, for three main reasons : the extreme length of the Chinese process, official refusal both to emerge from communism and to implement a democratic transition, and finally the determination displayed by Beijing to impose a social and political system presented all over the world as alternative ("with Chinese characteristics") and opposed to the models which have been dominant since the fall of the Berlin Wall. The PRC opened up to capitalism ten years before the collapse of the USSR, but it rejected shock therapy in favour of maintaining its planned economy. Beijing has systematically repressed any institutionalised dissidence, but has also organised limited but effective local elections (15), while embarking on a profound reform of its judicial system. Now a member of all the major international organisations, including the WTO, the Chinese regime still questions the very legitimacy of the Western model of liberal democracy, but not any longer the legal-rational version of the Rule of Law.
It may be added that the post-revolutionary period seems all the more prolonged because, after the repression of Tian'anmen, and the fumbling in the 1990s which followed the fall of the communist bloc, the regime is evolving again and referring to a teleology to which it recognizes no limits. In the official rhetoric, the rhythm of China's evolution is programmed in quasi scientific fashion up to the centenary of the foundation of the PRC, in 2049. More specifically, the year 2010 is endlessly repeated as the date for completion of the drafting of the Civil Code and of the judicial system as a whole. From the pilot project presented to the Standing Committee of the National People's Congress (NPC) it appears that it is more a question of a code which blends existing texts than of an innovative code which would call simultaneously for a task of compilation and of creation of the law. (16) Nevertheless the fact that the Beijing government presents itself as infinite does not mean that its political project is clear or that its reign is undisputed. The 1999 constitutional amendment, according to which "China will remain at the initial stage of socialism for another long period", is a clear sign of the prevalent ideological turmoil, or at least of a very broad conception of socialism. Over twenty-five years, the reconstruction of the regime has gone much further than the process of de- Maoisation, as noted by Yves Chevrier. The political meaning of the formation of the legal-rational State which Beijing wants, still remains to be understood.
Judicialisation and politicisation : the meaning of the words used
In the French context the term juridicisation (approximately equivalent to judicialisation in English) is as vague on the semantic level as it is frequent in learned discourse. Its main advantage is that it makes it possible to describe the many and growing interactions and arrangements between the spheres of law and of politics, between society and the State. While judicialisation (sifahua) is rarely spoken of in China itself, the term allows the observer to describe emerging dynamics which are profound, and as diverse as the political uses of the law, the legal uses of the institutional reforms and the self-justification by the law of the authoritarian practices of the government. This government rhetoric (elections at village level are formally highly regulated, for example), like that of the opposition (where it is rather a question of politicisation of the law in the strict sense)--whether this is within the Communist Party (thus, those who resisted Jiang Zemin's policy of the " Three Representativities " took issue in 2002 with the non-compliance with Article 16 of the Party regulations which calls for a preliminary democratic consultation in case of substantial modification of its principles), or whether it comes from the dissidents (one of the "Four Fundamental Principles" of the Chinese Party for Democracy, which was proscribed in 1998, was precisely "respect for legality" (17)) are all examples of the legalisation (faluhua) of society and the search for legitimacy through the law. The term "judicialisation" also means the increasing influence of legal institutions in constitutional practice, as in the expression "judicialisation of the constitution" (xianfa de sifahua). However, in contrast with Western societies, where these specialist terms are as often used by academic jurists and legal practitioners as by politicians, in China they are almost exclusively the prerogative of academics.
The politicisation of the law as it existed under Maoism is different from the present situation. After five years of attempts to establish a "new democracy" between 1949 and 1954 (date of the first Constitution of the PRC), the revolutionary era proper corresponded with various periods of legal nihilism, of which the Cultural Revolution was the paroxysm. The logic of Maoism implied not simply a logic of instrumentalisation of the law, but the actual denunciation of "judicial ideology", the negation and then the abolition of the institutions of the law. Between the middle of the 1950s and the end of the 1970s the political violence of the mass campaigns combined with the eradication of the legal professions and with the replacement of the law by political regulations or by mere political-administrative internal documents. The President of the People's Supreme Court, Xiao Yang himself publicly--and therefore officially--gave this as a major reason for the underdeveloped state of the legal professions in China (18).
Compared to the alternately anarchical and rigoristic functioning of the Maoist period, the law in the period of reforms has become a legitimate instrument of public action which is brandished by the authorities. Initiatives emanating from civil society in favour of political or economic liberalisation are encouraged, or on the contrary denounced, on the basis of judicial rhetoric, in the name of the law and of its ongoing reform. Meanwhile, on the other...
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