Introduction
For a better comprehension of the legal system in China, there is a need to appreciate the country’s political, social, cultural, and historical inclinations. the current legal system in china is a pointer to several influences, such as” the deeply-rooted philosophies and culture of classical China like Confucianism, Daoism, and Legalism” (Clarke, 2008). In addition, the legal system, in china is also gets influenced by external forces in the country. An external of such an external force influence is the extraterritorial privileges that have been exerted onto the country, through the Treaty System that China enjoys with the powers of the West. This treaty system is what eventually coerced China to embrace the legal principles of the West (for example, the continental code of European nations).
Following the ascending into the power of the Communist Party in China, in 1949, the laws in China felt a heavy influence as a result of the political philosophies of Mao Zedong and Marxism-Leninism (Diamant & Lubman, 2005). These are philosophies that the Communist Party subscribed to, and was also keen to have the people of the Republic of China follow. For the last two decades, China has embraced several regulations and laws from a number of international fronts (Head, 2009). This is especially the case in such areas of the economy as foreign investment, commerce, and regulations over securities.
As we continue to witness reforms in the Chinese economy it is important to realize that the country has managed to borrow legal standards from a number of its partners in trade (Potter, 2001). In effect, this has resulted in enhanced efforts towards developing an establishment of confidence in as far as foreign investors are concerned, as well as the ability to make room for the wave of entrepreneurial capitalism that appears to have engulfed this nation.
China’s legal system
There is evidence of the existence of the legal system that the Tang dynasty sought to perfect, between 618 and 906 A. D. if we were to lay focus on the institutions present in this system, what confronts us first is the existence of an intimate connection of the legal system and the central government’s system of administration. The government system which evolved in the country following its unification as early as the third Century B. C. was made up of a central government that was quite robust, under the leadership of an emperor. Such an emperor had established its dominion via a system of bureaucracy that was centralized. This is a structure that the ruling dynasty sought to maintain, up to 1911, when the empire came to an end (Hsu, 2003).
Given that the fundamental elements of the Chinese legal system happened to have been a collection of rules that the Emperor had promulgated, it was deemed necessary to have the word “code” used in reference to a collection of the legal system (Clarke, 2008). In line with this, each of the successive dynasties was characterized by an individual code, whose name was a reflection of the reigning dynasty (for example, the Qing Code or the ‘Great Ming Code’). As the official legal system formed a significant part of the empire’s apparatus of the government, once the empire had collapsed in 1911 it was not a wonder then that the Chinese legal system would as well disappear. Before then, we can document a clear state of continuity of the dynasty system in China that spanned from the Tang dynasty, up to the end of the empire rule, in 1911. This was the time when the Qing dynasty reigned.
At the heart of the legal system of China lie two laws; the Li and the Confucian laws. One of the striking similarities between these two sets of laws is that both of them seek to have social order maintained. On the other hand, the two laws are different in the sense that they disagree in principle as regards what may be seen as constituting social order, in addition to the various means through which such a social order could be arrived at (Hse, 2003). However, it is worthy of note that prior to the turn of the nineteenth century the legal system in China was yet to experience a profound change. The Confucian nation of the legal system in China is a testament to one of the most fundamental developments in as far as the county’s legal system is concerned (Clarke, 2008). This was the Chinese law that had been modernized, in the 20th century.
At about the second century B. C., already Confucianism had established itself as a philosophy of the state, and its followers started exerting their political influence in a bid to apply and interpret the law, as per the doctrines of Confucianism. Also, there was a need to integrate the Confucianism doctrine with Li. At the start of the 20th century, there were attempts by the government of China to both modernize and revise the laws of the country (Hse, 2008). This was mainly due to external pressure on the country, from across its borders. What followed then is that the People’s Republic of China had to formulate codes of its laws that resembled those from the Western countries.
In as much as China may have embraced the Western laws, it is important to note here that there is no single archaic law in China that may be regarded as being inferior to those that the country may have borrowed from the West. In 1949, the People’s Republic of China sought to have all the laws that had been advanced by the former state, China Republic, abolished. What this means is that a profound legal vacuum remained (Chen, 2002). Nevertheless, there appears to have been little, if any, need to formally establish a legal system, at least in a majority of the areas that touched on national life. The main reason behind this is that the economy of China was at the time mainly prone to planning by the state. As such, it was still possible to resolve conflict with no need for referring to the duties and legal rights.
The political turmoil that kept happening opposed any profound legal system development in China between 1949 and 1979. As such, real development in as far as the legal system in China may be said to have happened after 1979. In reference to the law reforms in China after 1978, it is important to realize that in the absence of laws, a state lacks a basis with which to punish offenders and exercise power, in addition to regulation of its civil affairs. According to Clarke (2008), the post-1978 legal reforms in China were necessary for the purposes of instituting the democracy of the people. Secondly, there was a need to have laws passed, in addition to having the legal system strengthened
The modern history of China started during the 1911 revolution that led to the demise of the Qing dynasty. The following four decades were characterized by foreign aggression and civil war, and these vices acted to disintegrate the Chinese Republic. However, the Communist Party ascended into power in 1949 and sought to once again unify the Chinese people (Diamant & Lubman, 2005). The communist regime assumed the legal system of the Soviet Union and was made up of four agencies. First, the police were charged with the responsibility of detection, investigation, and preparing for criminal cases assessment. The public security ministry oversees the police department. Next, the procurators had the mandate to initiate public prosecution, as well as issue arrests warrants. Then we have the courts whose role is adjudication. Finally, there are the correction centers that fall under the justice ministry.
Between 1949 and 1979, China may at best be described as having undergone three decades of lawlessness. In this case, the country had in place a ‘legal system’ that had neither a criminal code nor its procedure. The counterrevolutionaries’ punishment Act, and which was publicized around 1951, acted as the main criminal legislation. This act interpreted a majority of the acts as being subversive in behavior, or counterrevolutionary (Potter, 2001). In present-day China, law occupies a higher position than it ever did in the history of the country. This follows more than two decades of the local and national congress energetically fighting for the legislation. In effect, novel institutions and legal rights have come about. The bar, courts, and legal education have all witnessed a revival. In addition, there has also been a fashioning of the foreign investment framework.
Seeing that now China has increased its reliance on the laws of the country, what this means is that the aspect of dispute handling has also been affected. In one were to review the history of China, this move is not one that is unprecedented (Cohen & Hsu, 2003). Nevertheless, following a deepening with regard to market reforms, coupled with widening social inequality, legal reforms (these includes arbitration and mediation commission, as well as the courts, among others), now greatly impacts on the society and politics of China. Seeing that now law is considered as an instrument in trade, social control and legitimacy, it is not in doubt now that indeed, the legal system in China matters more than ever before. In comparison to the past years, the China of today is characterized by additional laws, a large number of people whose legal knowledge may at best be described as being rudimentary, and a law that is daily proving quite accessible to those in need of it.
It is very easy for one to misunderstand the Chinese legal system. This is because to most people (both foreigners and the Chinese alike), the thought of the Chinese law bring to mind a Western type of legal system. With such a mindset, most people anticipate such elements of the law as bar and the bench, and law of contracts, among others. Currently, there are a number of Chinese institutions that at best may be regarded as modern imports. However, these did not exist several years ago. In the absence of the Western type of a legal system, the Chinese legal system was (and still is) characterized by copious statements that were mainly issued by the nation’s prominent thinkers, principally taking into consideration Confucius. These statements “show great hostility to what we think of as law” (Cohen & Hsu, 2003).
Confucius himself is quoted as having said: “In hearing cases, I am as good as anyone, but what is really needed is to bring about that there are no cases” (Cohen & Hsu, 2003). Lately, a Chinese barrister in Hong Kong, had this to say to Cohen, at a time when he was commencing on his research study on the legal system of China: “The trouble with you Westerners is that you’ve never got beyond that primitive stage you call the ‘ rule of the law’. You’re al preoccupied with the ‘rule of the law’. China has always known that law is not enough to govern a society. She knew it twenty-five hundred years ago, and she knows it today (Cohen & Hsu, 2003).
Based on the above statement, one would be forgiven for arriving at a conclusion that China does not have in place a legal system. Although this does not hold any evidence, it is not that hard to realize how such a belief came about. Additionally, the legal system in China may be said to have changed drastically (Head & Wang, 2005). On paper, the present-day China possesses all the apparatus necessary for a legal system that befits the Western countries. Nevertheless, China as a country continues to feel the deep influence of its traditions. In light of this, any form of study that attempts to assess the legal system in China, and which only lay emphasis on the institutions and statues that China may have imitated from the West, may very well reach at a wrong conclusion.
According to Cohen and Hsu (2003), the prevailing law reforms program in China hinges to a great extent on the traditions of the country, regardless of whether such laws are recent, or ancient. Consequently, the final form that the legal system in China will assume, shall more often than not differ, in comparison to any law system that is foreign to China, and which the country would opt to imitate. Donald Clarke, while writing his article, “Puzzling observations in Chinese law: when is a riddle just a mistake?” notes the inherent methodological handicap in the choice of a yardstick with which we may rely on to assess the legal system in China. Clarke offers the suggestion that for a better comprehension of the legal system in China, there is a need to evaluate diverse models of such laws, along with vital internal relationships of the system (Clarke, 2008).
Cohen has also explored an article by Natalie Lichtenstein titled, “Law in China’s economic development: an essay from afar”. In this article, the author articulates the role played by the Chinese legal system in the current transformation of the country to a market economy, from an economy that was previously characterized by central planning (Clarke, 2008).
Lichtenstein should know better, having had enormous experiences as an expert in Chinese law. She tries to assess the main developments that have been witnessed by legal institutions in China, in addition to the development of the economic laws in China for the last twenty years.
Chinese legal system and the economic relationship
China’s economic reform was from the outset characterized by a realization that the law plays a vital role in the economy of any one given country. Nevertheless, it is not this role that was at the front of the minds of those who believe in the economic development process. In addition, these early policy reforms gave no serious thought as to the place of the private sector, in as far as the aspect of the economy are concerned. The idea was to come up with better ways and means of ensuring that the state-owned sectors were run in a smooth manner (Ghai, 1997).
As such, little thought seems to have been given to the entrepreneurial spirit that the Chinese people were exhibiting.
To better understand the initial reform of the legal system in China, it would be best if we could appreciate the fact that these reforms were crafted with a view to not only discrediting past ideological controls to the economy of China, but also to replace these. There was also the need to replace a bureaucratic system of internal communication. As it were, the conventional system had failed to impose order and unity on the government processes. For that reason, there was a need to come up with a new system. Specifically, a principle intention of the proponents of the new legal system was with a view to ensuring that the government operations attained regularity. This was also targeted at the policymaking process, to remedy “the excessive devolution of power from the center and the resultant policy inconsistencies” (Clarke, 2008).
Within the realm of the Chinese economy, the idea of having a law was for purposes of acting as a regulatory mechanism for the state-owned enterprises’ operations. This was with the aim of substituting the previous bargaining regime that was quite particularistic with one that is impersonal, strict, and is governed by universalistic rules. Such rules seek to impose on the managers of an enterprise discipline, while at the same time also encouraging efficiency within an enterprise (Cohen & Hsu, 2003). The law responsible for the economic relations in China is a pointer to the selective adaptation dynamics that may be evidence anywhere in the legal system of the country.
Nevertheless, contrary to other legal institution areas as property, contract, as well ads human rights, the law system of foreign economic relations is usually averse to direct reform pressures, thanks to the interests of foreigners. For this reason, the ensuing system could possibly be regarded as being “more reflective of foreign norms and practices that the legal regimes of primarily domestic concern” (Clarke, 2008). However, those legal cultural norms at the local levels and which are aligned to the state control and therefore in support of the ruling party are still quite dominant. Following an application to have access to relations with the WTO, coupled with the resulting negotiations, the law system of china, from the perspective of foreign business, has encountered profound pressure, in a bid to have it become aligned to the governance liberal norms that are interrelated with the system in the world market.
For purposes of complying with WTO and the General Agreement on Trade and Tariffs (GATT) requirements, it has become necessary for China to revise the administration and legislation regulations that are already in force. It will be necessary to have a majority of the laws that touches on foreign exchange, taxation, enterprise law, intellectual property, pricing, and bankruptcy revised, as per the WTO stipulations. Even as profound regulatory reform shall be deemed necessary for purposes of ensuring that diverse market sectors that China has created are arrived at, what may even be more vital at the moment, are the necessary systemic reforms on the regulatory and legal system in totality, for purposes of compliance. Unmistakably, China shall often oppose an assimilation of these types of norms that are usually less critical (Chen, 2002). In addition, the legal culture of the country at the local level shall also continue playing a significant role in as far as the economic endeavors of the country are concerned.
China is in the process of establishing a transparent and stable external system of economic management. In addition, the country hopes to also establish a lawful environment in the future, as per the stipulations of the market economy, in addition to an implementation of those obligations that the country had to assume when it was accepted as a WTO member. In July, 2004, the country’s revised foreign laws of trade came into force (Head, 2009). This in itself may be seen as a fundamental economic cooperation and foreign trade for the People’s Republic of China. In addition, it may also be worthwhile to look at this development as a platform for the creation of a system of managing trade and a management system for the Chinese government, in accordance to the international laws of trade.
Perhaps a vital element of the conventional law in China that needs to be explored hare is a revelation that the system of law in China at the dynastic era bears no influence at all from the Western society. At the same time, China was already endowed with massive land, as well as a population that was equivalent to, if not greater than, that found in Western Europe. Following the cue of missionaries from the West, who saw it fit to “correct the defective Chinese system of religion” (Cohen & Hsu, 2003), the jurists from the West have also sought to illustrate to “the people of China what proper legal system is like” (Cohen & Hsu, 2003). At the initial stage, the people of China were largely opposed to this move. However, they later yielded, with the result that the People Republic of China had in place a new legal system that bore resemblance to the system of the legal system in Europe. Nonetheless, the Chinese people were not entirely convinced.
Conclusion
The legal system in China may at best be seen as an amalgamation of the traditional philosophies of Chinese thinkers, and the codes of modern law that the country has borrowed from the Western countries. Indeed, the dynasty state that for a long time established itself in China up to 1911 has had a profound impact on the legal system in China (Cohen & Hsu, 2003). Even after the Communist party during the time of Mao Zedong in 1949 came into power, the regime tried to apply the Marxist-Leninism philosophy. For the next three decades, it was quite hard to institute any law reforms to the legal system of China. Nevertheless, real reforms may be said to have taken place post 1978 (Clarke, 2008), following a piling up of pressure on the Chinese government from the Western countries. In addition, China, being a signatory member to such the WTO and GATT, had to emulate the legal system of the West, as per the regulations of these organizations.
References
Chen, G. B. (2002). Law Without Lawyers, Justice Without Courts. Gower House, England: Ashgate Publishing Limited.
Clarke, D. C. (2008). Understanding China’s legal system: essays in honor of Jerome A. Cohen China’s Legal System. Dobbs Ferry, New York: Transnational Publishers Inc.
Cohen, J. A., & Hsu, S. A. (2003). China’s Legal System. New York: New York University press.
Diamant, N. J., & Lubman, S. B. (2005). Engaging the Law in China. Stanford California: Stanford University Press.
Ghai, Y. (1997). Hong Kong’s New Constitutional Order. Hong Kong: Honk Kong University Press.
Head, J. W. & Wang, Y. (2005). Law Codes In Dynastic China. Durham, North Carolina: Carolina Academic Press.
Head, J. W. (2009).China’s Legal Soul. Durham, North Carolina: Carolina Academic Press.
Hsu, S. C. (2003). Understanding China’s Legal System. New York: New York University Press.
Potter, P. B. (2001). The Chinese legal system: globalization and local legal culture. London: Routledge.