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. " : . ' ....... . . . .. .. .:. : . . .~ Hi El m! me.,r mm 15 r la El ..... ."... . . . , . , . Chinese Jurists' Perspectives on Law The preceding chapter examined Deng Xiaoping's ideas on law. This chapter will discuss jurists' perspectives on law in post-Mao China. First, it will describe debates on 'the rule of persons' versus 'the rule of law' and the relationship between law and policy. It will then depict jurists' examination of the Chinese Marxist jurisprudence and consider arguments about the nature of law. Finally, the concept 'a socialist legal system with Chinese characteristics' will be discussed. The Debate on Law in Chinese Jurisprudential Circles: The Search for a New Model At Deng's instigation, the receptive attitude towards law and democracy taken in the Communique of the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party in late 1978 was the chief source of inspiration for the discussion and debate on law among scholars in post-Mao China.! The ensuing legal reforms and the resumption of publications on law since 1979 created conditions more favourable, both politically and academically, for the study of law. The significance of freeing-up academic publication on law and legal systems cannot be underestimated. Publication of law magazines was resumed; they provided a forum for academic discussion and signified official endorsement of academic discussion of legal questions. 1. 'Communique of the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China', Beijing Review No. 52, 29 December 1978, p. 14. 44 Marxism in Deng's China In 1979 some sixteen questions concerning law were identified.2 These may be divided into four main categories. The first category centred on the issue of the 'rule of law versus the rule of persons' . Chinese proponents of the former intended to promote and defend the rule of law within a socialist context. This debate lasted from 1979 until 1982. At that time the Party denounced past extra-legal practices and confirmed the role of law in socialist modernization. It was urgent, the proponents felt, to identify the status of law in the regime. Resolving the contradiction between the 'rule of law' and the 'rule of persons', it was felt, would highlight the commitment of the Party leadership to legal order and would provide a basis for future discussion. The second set of issues focused on jurisprudence and its relation to class. Had the situation in post-Mao China made obsolete the traditional Marxist theory of law? Traditional Marxist theory had been inadequate in explaining the emergence and function of socialist law when class confrontation had basically come to an end. Should jurisprudence prevail if it contradicted traditional Marxist theory but was essential for the development and improvement of the legal system? In the early stages, discussion focused on the separation of the law from politics, while in the later stages the focus was on the very nature of Marxist jurisprudence. Defects in the traditional approach led to the cry for reform in Marxist jurisprudence in 1986 and further reconsideration in 1987. The third series of questions, and perhaps the most fundamental, dealt with the nature of law itself. The post-Mao Party leadership continued to emphasize the importance of socialist democracy and its close link with law and the legal system. Hence law as an instrument strictly for legal suppression and class struggle was called into question. Under challenge was the traditional view that law had a particular class nature. Law was increasingly seen in terms of its social nature rather than its class nature. For a time this debate hung in the balance. But clearly once the traditional notion had been shaken, a new theory of law was called for. The final set of questions concerned the nature and advocacy of a 'socialist legal system' and a 'socialist system of jurisprudence with Chinese characteristics'. Clearly this was an effort to break away from the Soviet model, emphasizing current social and economic realities in China. The aim was to create a new legal 'ideal-type'. The debate on the 'rule of law' and the 'rule of persons' ended in the triumph of the socialist rule of law as the guiding principle and basis for all legal studies. At last, jurisprudence seemed to have been separated from politics. The traditional approach had collapsed and fundamental reform was on the agenda. No longer did the class reductionist or the instrumentalist view of law hold sway. Law was seen in its regulative dimension and was to be examined...

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