Organizer: Pitman B. Potter, University of British Columbia
Chair: William C. Jones, Washington University, St. Louis
Discussant: James V. Feinerman, Georgetown University
The socialist legal system of the Deng Xiaoping regime has reflected the particular policy priorities of the 1978-1995 period. Although formal legal institutions and doctrines remain constrained by immediate concerns of policy and politics, the importance of legal ideas and norms in China has still grown substantially during the past fifteen years. An important question for the future is which elements of legal ideology from the Deng era will survive his death, and which will be displaced by new norms borne of changing conditions and policies?
This panel will address this question by reference to legislation, jurisprudence, social order, and elite legal culture. The panelists bring to the discussion significant expertise and field research experience in their particular topic areas. Professor Murray Scot Tanner of Western Michigan University has done extensive work on the Chinese legislative process, and will address legislation and the future of the National People's Congress. Professor Ronald Keith from the University of Calgary has done seminal work in the area of PRC jurisprudence, and will examine the tension between Sinification and Westernization in Chinese legal theory. Professor Sarah Biddulph of Melbourne University Law Faculty will examine law and social order, drawing on her ongoing research in administrative law and public regulation. Professor Pitman B. Potter will build on his existing work in Chinese legal culture and examine the ideologies of law and politics of Peng Zhen.
The Post-Deng National People's Congress: How Much Change? How Fast?
Murray Scot Tanner, Western Michigan University
During the 1980s and early 1990s, several forces permitted the NPC to expand its influence and organizational independence in lawmaking. Increasingly, a window has been opened which permits NPC and Standing Committee officials to redefine their ideas of which groups and interests they represent in Chinese society, and how they should represent these interests. Delegates are also feeling increasingly free to speak against and even vote against legislation and leadership nominations which they oppose. With Deng Xiaoping's death, the CCP leadership's desire to establish popular support and head off democracy movements in the streets, coupled with inevitable power struggles within the leadership, will create even more opportunities for the NPC to expand its influence. This paper examines how far and how fast the post-Deng NPC can develop its influence, and what this may mean for law and democracy in China. The paper will draw on interviews conducted with People's Congress and Standing Committee delegates during the Summer of 1995
Law and Social Control in Post-Deng China
Sarah Biddulph, University of Melbourne
Consequences of the economic modernization policy have been great social change and dislocation and what has been labeled a "crime wave." This "crime wave" is seen as having the potential to undermine the success of the reform process. The police have dealt with this "crime wave" by implementing amongst other things, a series of law and order campaigns starting in the early 1980s that have continued into the 1990s. The nature of campaign style policing, with its emphasis on speed and flexibility in law enforcement has been characterized by the omission of procedural and substantive safeguards for the "rights" of those who are the targets of suppression by the police. The legal basis of many of the powers exercised by the police is unclear. Powers used by the police to implement law and order campaigns have been directed more by political norms and constraints than by legal norms. The police argue that they cannot effectively perform their tasks of preserving law and order without retention of flexible powers such as their administrative coercive powers.
Since the introduction of the economic modernization policy, China's senior leaders have attempted to use the rhetoric of "rule of law" as an ideological tool for legitimization of state decision making. Laws have been used to construct notions of individual interests and rights and to offer some protections for these rights. Laws have also been used to create norms for administrative action. Recently laws have been passed setting out organizational principles of the police force and creating legal mechanisms of accountability for actions of the police. A complex of mechanisms for supervision of police action is now in place.
As legal reforms become more entrenched, there is growing conflict between the police demands for flexibility in performing their law-and-order duties and the legal requirements concerning the exercise of the state's coercive powers. The resolution of this conflict is one of the most important issues of China's legal construction. It has important consequences for our discussions about the possibility of implementing a system of rule of law in China.
Antithesis within Post-Deng Jurisprudence
Ronald C. Keith, University of Calgary
Contemporary Chinese jurisprudence, fali xue, has had to negotiate a vexing set of internal contradictions. Deng's "pragmatism" tolerated the competitive coexistence of different value systems and never resolved the antithesis of "Sinification" and "Westernization." The theoretical debate over how to integrate socialist market principles with China's "national characteristics" continues. Deng opposed both "bourgeois liberalism" and the "leftist thesis," but he sanctioned the entrepreneurial principles of the "socialist market" and the established collectivist principles underlying "comprehensive public order."
Post-1989 "pragmatism" sponsored public order in society and legal predictability in the economy. At the same time, it was coopted in the reform challenge to the centrality of "rights" in synthesis with "obligations." To deal with social change, legislation has focused more closely on legally protecting newly emerging "rights and interests." There may be less emphasis on "interests of the ruling class" (tongzhi jieji liyi) but the legal system still has to respond to distinctive interests within society and the "common interests of society" (shehui gongtong liyi). The legal system and community is self-consciously struggling with the transitional development of the "plurality of interests in society" and Chinese legal circles are debating the division between public and private law.
Within a revised Marxism-Leninism Mao Zedong Thought, Deng's pragmatism precipitated a revolution in formal legal thinking. The developing aspects of contemporary jurisprudence are still very much rooted in the speeches of his Southern Tour. Deng's ideological framework of uneasy principle may well survive into the post-Deng era. Its integrity, however, is sorely tested in rapidly expanding materialism and urban "decollectivized morality." Reform Marxism achieved a remarkable breakthrough in its advocacy of a Chinese socialist version of the "rule of law," but it may have also unintentionally spawned contradictions which defy any near term synthesis.
Foundations of Elite Legal Culture in the PRC: The Influence of Peng Zhen
Pitman B. Potter, University of British Columbia
The future of legal ideology in China depends in part on the future of elite legal culture-the attitudes and norms held by those in positions of political, social, and/or economic power about the content and role of law. This paper will examine the ideas of Peng Zhen on law and political authority as a foundation for and emblem of PRC elite legal culture. Few members of the PRC elite are as closely associated with the socialist legal system as Peng Zhen, indeed the very nature of the legal system as an instrument of policy can be attributable in part to influence of Peng Zhen in institutionalizing the role of politics and policy in law, hence the common term zheng-fa. Peng's responsibilities during the 1950s and again in the early 1980s for political legal work within the CPC Politburo allowed him to play a significant role in shaping the Party's legal policy, while his role as Chair of the National People's Congress Standing Committee offered unparalleled opportunities to affect the content and process of legislation. But Peng's views are also emblematic of a generation of veteran revolutionaries whose ideas about law were formed before liberation, when the CPC considered law to be little more than a useful cover for underground organizing or a way to disseminate Party policy. Peng's views on law have evolved from an instrumentalist approach that posited the interplay of law and politics in pursuit of the Communist Party's policy goals to one emphasizing greater procedural and institutional regularity, and even the beginnings of limited autonomy of legal rules. While this transition has been driven in part by changes in Peng's own political fortunes, more important has been the effect of his conclusions about changing conditions in China and the transition from revolution to development. Here too he has been both a contributor to and an emblem of elite legal culture during the Deng era. Peng Zhen's ideas about role of law afford us a penetrating glimpse into the legal culture of the PRC elite and permit preliminary conclusions to be drawn as to the future of law and legal institutions in China.