The Rule of Law Perspectives from the Pacific Rim

Total Page:16

File Type:pdf, Size:1020Kb

The Rule of Law Perspectives from the Pacific Rim The Rule of Law Perspectives from the Pacific Rim The Rule of Law Perspectives from the Pacific Rim With a Foreword by Jerome A. Cohen Published by THE MANSFIELD CENTER FOR PACIFIC AFFAIRS With Funding from The Starr Foundation THE MANSFIELD CENTER FOR PACIFIC AFFAIRS The public policy and international outreach center of the Maureen and Mike Mansfield Foundation. © 2000 by the Mansfield Center for Pacific Affairs. www.mcpa.org All rights reserved, including the right to reproduce this document or any part thereof, except for the inclusion of brief quotes in a review. The publication of The Rule of Law: Perspectives from the Pacific Rim was made possible by a grant from The Starr Foundation. The perspectives and opinions expressed by the contributors to this publication are those of the authors and do not necessarily reflect the views of the Mansfield Center for Pacific Affairs or its funding sources. Library of Congress Control Number: 00-134300 ISBN Number: 0-9635265-9-6 TABLE OF CONTENTS PREFACE AND ACKNOWLEDGMENTS ........................................... vii L. Gordon Flake FOREWORD: FORWARD! ............................................................. xi Jerome A. Cohen THE RULE OF LAW: Defining It and Defending It in the Asian Context ............................... 1 Barry M. Hager TOWARD A LEGAL ENLIGHTENMENT: Discussion in Contemporary China on the Rule of Law ....................... 13 Albert H. Y. Chen NO PAIN, NO GAIN: Steps Toward Securing the Future of Chinas Legal System ................... 55 Peter Corne RULE OF RULES: An Inquiry into Administrative Rules in Chinas Rule of Law Context .......................................................... 71 Xixin Wang THE JUDICIAL SYSTEM AND GOVERNANCE IN TRADITIONAL CHINA ............................................................. 91 Weifang He WTOS IMPACT ON THE RULE OF LAW IN CHINA ........................ 101 Martin G. Hu THE RULE OF LAW IN TAIWAN .................................................. 107 Tsung-fu Chen THE RULE OF LAW IN VIETNAM: Theory and Practice ................................................................... 123 Truong Trong Nghia IN DEFENSE OF ASIAN COLORS ................................................. 141 Takashi Oshimura THE RULE OF LAW AND ITS ACCEPTANCE IN ASIA: A View from Korea .................................................................... 145 Joon-Hyung Hong v FOREWORD: FORWARD! Jerome A. Cohen The Mansfield Center for Pacific Affairs Rule of Law project, focusing on the Confucian culture area, comes at a good time. There is intense ferment over the Rule of Law (ROL) in every Northeast Asian political community. Even the Democratic Peoples Republic of Korea is inexorably being drawn to the flame, belatedly driven by the same desire for economic progress that has motivated the neighboring regimes that share its political-legal tradition. Concern for the ROL is hardly new for Northeast Asia. It has marked the contact, cooperation and conflict between Western nations and the Sinocentric world order since the eighteenth century. The succession of bitter disputes between Manchu China and the West leading up to the Opium War of 1839 in large part arose from dramatically different concepts and practices in the administration of criminal justice. The differences between East and West had not always been so marked. For example, sixteenth century Catholic missionaries and merchants from the Iberian Peninsula were favorably impressed by their glimpses of criminal justice in Imperial China. Against the background of the Inquisition, Chinese proceedings seemed comparatively rational, fair and, as we say today, transparent. By the end of the eighteenth century, however, the West had begun to appraise China in accordance with newly-acquired standardsthose that had emerged from the seventeenth century English revolutions and their American and French sequels. Chinese law and procedure had altered little during this period but the West had moved the goal posts, and the slogans of the newly-enshrined rights of man accompanied, and were often used to justify, the increasing impact of Western imperialism upon the Sinocentric world. The Opium War forced open China, resulting in the first in a series of what came to be known as unequal treaties introducing extraterritorialitythe administration of Western justice in the foreign treaty ports established on Chinese soil. Soon after, in 1853, the Black Ships of Commodore Perry brought the American version of the ROL to Tokyo Bay, imposing extraterritorialitythe symbol of sovereign inferiorityupon a Japan that had long closed itself off from outside influences. Even the Hermit Kingdom of Korea, traditionally the sheltered tributary of the Central Realm in Peking, began to experience the thrust of Western expansion and values. And the xi THE RULE OF LAW: Perspectives from the Pacific Rim Mansfield Dialogues in Asia peoples of what soon came to be known as Indo-China had less success than the Koreans in resisting the intrusion of the West. They succumbed to la mission civilisatrice of French colonialism, which introduced a harshly-distorted version of the ROL far different from that which had been evolving in the home of liberty, equality and fraternity. Yet Korea, like Taiwan, which had earlier experienced Dutch and other Western efforts to establish bases on the island, was soon subjected to newly-minted Japanese colonialism. Japan, the quickest study in East Asia, by the start of the twentieth century not only had put an end to the detested Western extra- territorial regime on its own soil but also had begun the process of imitating the Western imperialism to which it had just been exposed. In both respects Japan made use of its recently assimilated knowledge of Westernlargely continental Europeanlaw. At home, the government of Emperor Meiji met the Western price for terminating extraterritoriality by erecting, on top of the Confucian- influenced Tokugawa legal tradition, laws, institutions and procedures that were largely borrowed from an imperial Germany that appeared to be Europes rising power. Abroad, Japan resorted to rule by law, rather than the rule of law, to control its new colonies with skill equal to that of its Western colonial rivals. China was much slower than Japan to respond to the challenge of Western imperialism and to appreciate the uses of Western law. To be sure, by the 1860s the imperial court in Peking had begun to understand the utility of learning the public international law of the West as an instrument of self-defense against Western demands. Yet it was not until Japans humiliating defeat of China in 1895, followed by its 1905 victory over Russia, a white imperialist power, that Chinese leaders began to see the need for significant domestic legal change as part of a broad program of reforms. These reforms were designed to strengthen the collapsing Manchu dynasty and to emulate Japan in eliminating the unequal treaties imposed by the West. The Manchu effort, of course, proved too little and too late. Yet spasmodic importation of Western legal forms continued during the turmoil of the Republic of China, which was founded in 1912. After Chiang Kai-sheks Nationalist Party came to power in 1927, it launched an impressive, comprehensive effort to establish a German-style legal system, largely filtered via the Japanese model but importantly influenced by Leninist concepts of State and Law. That system served as an instrument of state control, as a facilitator of economic development and international business and, above all, as the means of ending the unequal treaties and especially the hated exercise of foreign judicial power in Chinese territory. xii FOREWORD: FORWARD! Jerome A. Cohen The Japanese invasion that began in 1931 and the civil war between Communists and Nationalists hindered and distorted this budding program. Nevertheless, under the pressure of the need for wartime cooperation, Chinas Western allies finally agreed to the termination of their extraterritorial treaty rights in 1943, even though they were far from convinced that the administration of justice in Chiangs China met Western standards. The subject deserves far better than the potted history recited above. I refer to it here to alert newcomers to the field that, in assessing East Asias understanding of and enthusiasm for the ROL, we have to take account of not only its traditional political-legal culturethe preference for morality over law and for extra-judicial compromise over litigation, the association of law with punishment, the concern for community rather than individuals, the absence of any separation of powers and independent judiciarybut also the historical circumstances in which the perceptions of Western law in each country of the region were shaped. Although many East Asians came to see the ROL in its best sense as holding out the promise of improved government, enhanced protection of individual rights, and greater economic development and international cooperation, for othersespecially those who lived under colonialismWestern-style law, like their own traditional legal systems, was seen as an instrument of control and even oppression rather than as the finest achievement of civilization. To many increasingly nationalistic Japanese and then Chinese, any doubts about the wisdom of importing so alien a product were overcome by their determination to do what was politically required to rid themselves of the incubus of extraterritoriality, so that their countries could join the ranks of sovereign
Recommended publications
  • Constitutional Jurisprudence of History and Natural Law: Complementary Or Rival Modes of Discourse?
    California Western Law Review Volume 24 Number 2 Bicentennial Constitutional and Legal Article 6 History Symposium 1988 Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse? C.M.A. McCauliff Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr Recommended Citation McCauliff, C.M.A. (1988) "Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse?," California Western Law Review: Vol. 24 : No. 2 , Article 6. Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/6 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more information, please contact [email protected]. McCauliff: Constitutional Jurisprudence of History and Natural Law: Compleme Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse? C.M.A. MCCAULIFF* The Bill of Rights provides broadly conceived guarantees which invite specific judicial interpretation to clarify the purpose, scope and meaning of particular constitutional safeguards. Two time- honored but apparently divergent approaches to the jurisprudence of constitutional interpretation have been employed in recent first amendment cases: first, history has received prominent attention from former Chief Justice Burger in open-trial, family and reli- gion cases; second, natural law has been invoked by Justice Bren- nan in the course of responding to the Chief Justice's historical interpretation. History, although indirectly stating constitutional values, provides the closest expression of the Chief Justice's own jurisprudence and political philosophy.
    [Show full text]
  • The Australian Legal System & the Rule of Law What Are
    12/1 - Readings and Presentations 2 - The Australian Legal System & The Rule of Law ​ What are the distinguishing features of the ‘Western’ Legal Tradition? → The shared heritage of the modern, Common and Civil legal systems → There are 3 noteworthy characteristics of the western legal tradition ↳ Autonomy of law ⇢ Conceptually distinct from custom, morality, religion or politics ⇢ The content of law is, however, shaped by the above social forces ⇢ This autonomy is reflected in the fact that it has its own institutions, profession, university discipline, literature, language and etiquette ↳ Centrality in social ordering ⇢ Law pervades every aspect of modern society, and is a primary means of social control - it is omnipresent ⇢ Law is seen as the primary means of social change - Political powers campaign for legislative and executive control ↳ Moral authority ⇢ Law commands a high level of respect in western society - This is independent of ideas on the merits of the laws and the respect shown to lawmakers - Idea that the law ought be obeyed, not only from fear of punishment, but from a feeling of positive obligation ⇢ Law generally reflects not only legal obligations, but moral obligations too ⇢ Law ultimately depends on a person’s sense of belonging to society What other legal traditions are there? → Aboriginal legal tradition - inseparable from Aboriginal custom and religion ↳ There is no distinctive hierarchy to uphold the laws, nor is there a distinctive “profession” associated with them → Roman legal tradition - where a monarch exercises
    [Show full text]
  • FUNDAMENTAL RIGHTS in the SOVIET UNION: a COMPARATIVE APPROACH * T~Omas E
    1967] FUNDAMENTAL RIGHTS IN THE SOVIET UNION: A COMPARATIVE APPROACH * T~omAs E. TowE t INTRODUCTION The Soviet Constitution guarantees many of the same funda- mental rights as are guaranteed in the Constitution of the United States, plus several others as well. Indeed, these rights are described in greater detail and appear on their face to be safeguarded more emphatically in the Soviet Constitution. However, the mere existence of constitutional provisions for fundamental rights does not necessarily guarantee that those rights will be protected. Western scholars often point to discrepancies between rhetorical phrases in the Soviet Con- stitution and actual practices in the area of fundamental rights.' Soviet legal scholars insist, however, that such criticism should be aimed instead at Western constitutions. Andrei Vyshinsky has stated that it is precisely in the area of fundamental rights that "the contra- dictions between reality and the rights proclaimed by the bourgeois constitutions [are] particularly sharp." 2 Soviet legal scholars claim that bourgeois laws are replete with reservations and loopholes which largely negate their effectiveness in protecting fundamental rights generally, and those of the working man in particular.3 There is undoubtedly some truth in both claims, for, as Professor Berman has stated, "The striking fact is that in the protection of human rights, the Soviet system is strong where ours is weak, just as it is weak where ours is strong." 4 The full impact of this statement can only be understood by comparing the different approaches which * The author wishes to acknowledge the helpful comments and suggestions of Dr. Branko M.
    [Show full text]
  • Can the West Learn from the Rest?' the Chinese Legal Order's Hybrid
    University of Michigan Law School University of Michigan Law School Scholarship Repository Other Publications Faculty Scholarship 2009 Can the West Learn from the Rest?' The hineseC Legal Order's Hybrid Modernity Nicholas C. Howson University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/other/4 Follow this and additional works at: https://repository.law.umich.edu/other Part of the Comparative and Foreign Law Commons, and the Rule of Law Commons Recommended Citation Howson, Nicholas C. "'Can the West Learn from the Rest?' The hineC se Legal Order's Hybrid Modernity." Hastings Int'l & Comp. L. Rev. 32, no. 2 (2009): 815-30. This Speech is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Other Publications by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Panel IV - "Can the West Learn from the Rest?" - The Chinese Legal Order's Hybrid Modernityt By NICHOLAS CALCINA HOWSON* I am asked to present on the "shortcomings of the Western model of legality based on a professionalized, individualistic and highly formalistic approach to justice" as a way to understanding if "the West can develop today a form of legality which is relational rather than based on litigation as a zero sum game, learning from face to face social organizations in which individuals understand the law" - presumably in the context of the imperial and modem Chinese legal systems which I know best as a scholar and have lived for many years as a resident of the modem identity of the center of the "Chinese world," the People's Republic of China ("PRC").
    [Show full text]
  • Minshi Susongfa Tonglun (A General Treatise on the Law of Civil Procedure), by Chai Fabang, Liu Jiaxing, Jiang Chuan, and Fan Minxing Mitchell A
    Maryland Journal of International Law Volume 8 | Issue 1 Article 8 Minshi Susongfa Tonglun (A General Treatise on the Law of Civil Procedure), by Chai Fabang, Liu Jiaxing, Jiang Chuan, and Fan Minxing Mitchell A. Silk Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mjil Part of the Civil Procedure Commons, and the International Law Commons Recommended Citation Mitchell A. Silk, Minshi Susongfa Tonglun (A General Treatise on the Law of Civil Procedure), by Chai Fabang, Liu Jiaxing, Jiang Chuan, and Fan Minxing, 8 Md. J. Int'l L. 163 (1984). Available at: http://digitalcommons.law.umaryland.edu/mjil/vol8/iss1/8 This Book Review is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal of International Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. BOOK DIGEST MINSHI SUSONGFA TONGLUN (A general treatise on the law of civil procedure). By Chai Fabang, Liu Jiaxing, Jiang Chuan, and Fan Minxing. Beijing Law Publishers, 1982, 503 pp. A scarcity of resources long vexed students of the People's Republic of China's (PRC) legal system. Yet, of late, China's liberal and pragmatic approach to reform and modernization has encouraged scholarly endeavor. Legal materials now emerge from China at an accelerating rate, appeasing the intellectual hunger of students of Chinese/socialist law. Many questions remain to be answered, however, especially with regard to legal areas rela- tively new to the PRC. How has socialist reconstruction and modernization affected the law of civil procedure? How is Marxism-Leninism-Maoism manifested in Chinese civil procedure? How does the socialist theory of civil procedure compare with the markedly different theories of capitalist coun- tries? What principles of civil procedure govern litigation involving foreign- ers? Minshi Susongfa Tonglun (A general treatise on the law of civil pro- cedure)' addresses questions such as these.
    [Show full text]
  • Western and Non-Western Legal Cultures and the International Court of Justice
    Washington University Law Review Volume 65 Issue 4 Festschrift: A Celebration of the Scholarship and Teaching of Gray L. Dorsey January 1987 Western and Non-Western Legal Cultures and the International Court of Justice Edward McWhinney Simon Fraser University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the International Law Commons Recommended Citation Edward McWhinney, Western and Non-Western Legal Cultures and the International Court of Justice, 65 WASH. U. L. Q. 873 (1987). Available at: https://openscholarship.wustl.edu/law_lawreview/vol65/iss4/18 This Dedication is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Professor McWhinney, like Professor Dorsey, was a student of ES.C. Northrop at Yale Law School in the years immediately following World War II. Professor Northrop believed that the method of dispute settlement embodied in the Statute of the InternationalCourt of Justice is a product of Western European culture and that this method is alien to the cultures of many peoples. Accordingly, Professor Mc Whinney finds, many coun- tries originallyshunned the InternationalCourt of Justice. Recently, how- ever, Third World states, Communist states, and Japan have set aside their cultural differences and appealed to the Court in
    [Show full text]
  • Chinese Legal Culture
    Chinese Legal Culture Department: Fudan International Summer Session Course LAWS170003 Code Course Chinese Legal Culture Title 36+3 tutorial hours (one credit Credit 2 Credit Hours hour is 45 minutes) □Specific General Education Courses □Core Courses √General Education Elective Courses Course □Basic Courses in General Discipline □Professional Compulsory Courses □Professional Elective Nature Courses □Others To precisely grasp the basic concepts in Chinese legal culture, such as legalist, penal code, etc. Course To thoroughly understand the mainstreams of traditional legal thoughts in China. Objectives To critically look at contemporary legal phenomena in China. This course will examine the spirit of Chinese law from a historical perspective, with a particular emphasis on its political context. We will explore the early transition of Chinese Course politics and law by the 2rd century B.C.E. (including doctrines of Confucian and legalist Description schools), development and spirits of imperial codes, mechanism of judicial administration in criminal and civil justice, local mediation, and family law. Course Requirements: This course requires the students’ attendance at classes and participation in class discussion. Teaching Methods: Lecture, presentation, group discussion Instructor's Academic Background: Prof. SHI Daxiao obtained his undergraduate and master degrees from Peking University, PhD in Foreign Legal History from Peking University Law School. His research interests include the history of foreign legal systems, the history of Western legal thoughts, and jurisprudence. He has translated classic works of foreign legal history such as European Law: Past and Future: Unity and Diversity in Two Thousand Years, and Common Law Tradition. Email: [email protected] 1 Course Schedule Part I: Introduction to Chinese Law and Legal Culture (3 hours) Chronology, in 1 Sources of Chinese Tradition xxvii-xxxiii (Compiled by Wm.
    [Show full text]
  • The Attack on Western Religions by Western Law: Re-Framing Pluralism, Liberalism and Diversity
    The University of Notre Dame Australia ResearchOnline@ND Law Papers and Journal Articles School of Law 2013 The attack on Western religions by Western law: re-framing pluralism, liberalism and diversity I Benson The University of Notre Dame Australia, [email protected] Follow this and additional works at: https://researchonline.nd.edu.au/law_article Part of the Law Commons This article was originally published as: Benson, I. (2013). The attack on Western religions by Western law: re-framing pluralism, liberalism and diversity. International Journal of Religious Freedom, 6 (1/2), 111-125. Original article available here: http://www.iirf.eu/fileadmin/user_upload/Journal/IJRF_Vol6-1.pdf This article is posted on ResearchOnline@ND at https://researchonline.nd.edu.au/law_article/55. For more information, please contact [email protected]. This article originally published in the International Journal of Religious Freedom. Benson, I. (2013). The attack on Western religions by Western law: re-framing pluralism, liberalism and diversity. International Journal of Religious Freedom, 6(1/2), 111-125. Retrieved from http://www.iirf.eu/fileadmin/user_upload/Journal/IJRF_Vol6-1.pdf IJRF Vol 6:1/2 2013 (111–125) 111 The attack on Western religions by Western law Re-framing pluralism, liberalism and diversity Iain T. Benson1 Abstract This paper discusses how law is increasingly being used to attack religious as- sociations under the guise of “equality” advancement and “non-discrimination” restrictions. I explore two important insights: first that the concept of “transforma- tion” has been distorted, to shelter approaches to law that fail to respect properly associational diversity.
    [Show full text]
  • The Religious Foundations of Western Law
    Catholic University Law Review Volume 24 Issue 3 Spring 1975 Article 4 1975 The Religious Foundations of Western Law Harold J. Berman Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Harold J. Berman, The Religious Foundations of Western Law, 24 Cath. U. L. Rev. 490 (1975). Available at: https://scholarship.law.edu/lawreview/vol24/iss3/4 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. THE RELIGIOUS FOUNDATIONS OF WESTERN LAWt Harold 1. Berman* I. THE WESTERN LEGAL TRADITION The Western legal tradition, like Western civilization as a whole, is under- going in the 20th century a crisis greater than any other in its history, since it is a crisis generated not only from within Western experience but also from without. From within, social, economic, and political transformations of un- precedented magnitude have put a tremendous strain upon traditional legal institutions and legal values in virtually all countries of the West. Yet there have been other periods of revolutionary upheaval in previous centuries, and we have somehow survived them. What is new is the confrontation with non- Western civilizations and non-Western philosophies. In the past, Western man has confidently carried his law with him throughout the world. The world today, however, is more suspicious than ever before of Western "legal- ism." Eastern man and Southern man offer other alternatives.
    [Show full text]
  • Paths of Western Law After Justinian
    Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law January 2006 Paths of Western Law After Justinian M. Stuart Madden Pace Law School Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Recommended Citation Madden, M. Stuart, "Paths of Western Law After Justinian" (2006). Pace Law Faculty Publications. 130. https://digitalcommons.pace.edu/lawfaculty/130 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. M. Stuart add en^ Preparation of the Code of Justinian, one part of a three-part presentation of Roman law published over the three-year period from 533 -535 A.D, had not been stymied by the occupation of Rome by the Rugians and the Ostrogoths. In most ways these occupations worked no material hardship on the empire, either militarily or civilly. The occupying Goths and their Roman counterparts developed symbiotic legal and social relationships, and in several instances, the new Germanic rulers sought and received approval of their rule both from the Western Empire, seated in Constantinople, and the Pope. Rugian Odoacer and Ostrogoth Theodoric each, in fact, claimed respect for Roman law, and the latter ruler held the Roman title patricius et magister rnilitum. In sum, the Rugians and the Ostrogoths were content to absorb much of Roman law, and to work only such modifications as were propitious in the light of centuries of Gothic customary law.
    [Show full text]
  • A Study of Judges' and Lawyers' Blogs In
    Copyright © 2011 by the President and Fellows of Harvard College. 2011 / Exercising Freedom of Speech behind the Great Firewall 251 reminding both of them of the significance of law, the legal and political boundaries set by the authorities are being pushed, challenged, and renegotiated. Drawing on existing literature on boundary contention and the Chinese cultural norm of fencun (decorum), this study highlights the paradox of how one has to fight within boundaries so as to expand the contours of the latter for one’s ultimate freedom. Judging from the content of the collected postings, one finds that, in various degrees, critical voices can be tolerated. What emerges is a responsive and engaging form of justice which endeavors to address grievances in society, and to resolve them in unique ways both online and offline. I. INTRODUCTION The Internet is a fascinating terrain. Much literature has been devoted to depicting its liberating democratic power in fostering active citizenry, and arguably, an equal number of articles have been written that describe attempts by various states to exercise control.1 China has provided a ready example to illustrate this tension. 2 And this study focuses on the blog postings by judges and public interest lawyers in order to understand better how the legal elites in China have deployed routine and regular legal discussion in the virtual world to form their own unique public sphere, not only as an assertion for their own autonomy but also as a subtle yet powerful form of contention against the legal and political boundaries in an authoritarian state. Chinese authorities are notorious for their determination to stamp out dissenting voices both online and offline.
    [Show full text]
  • Debates on Constitutionalism and the Legacies of the Cultural Revolution Wu Changchang*
    674 Debates on Constitutionalism and the Legacies of the Cultural Revolution Wu Changchang* Abstract This article focuses on the debate surrounding constitutionalism that has been driven by a constitutionalist alliance of media reporters, intellectuals and lawyers since 2010, and follows its historical trajectory. It argues that this debate forms a discourse with a structuring absence, the roots of which can be traced back to the taboos surrounding the Cultural Revolution, the 1975 Constitution, and every- thing associated with them. The absence manifests itself in the silence on workers’ right to strike, a right which was deleted from the 1982 Constitution in an attempt to correct the ultra-leftist anarchy of the Cultural Revolution. Previous and in con- trast to that, there was a Maoist constitutional movement in the Cultural Revolution, represented by the 1975 Constitution, that aimed to protect the con- stituent power of the workers by legalizing their right to strike. Today, we are wit- nessing the rise of migrant workers as they struggle for trade union reform and collective bargaining with little support from the party-state or local trade unions. In this context, a third constitutional transformation should be considered that is not a return to the 1975 Constitution but which instead adds some elements which protect labour’s right to strike to the 1982 Constitution. Keywords: China; constituent power; the constitutionalist alliance; the constitutionalist revolution; the constitutional transformation; right to strike In the middle
    [Show full text]