Equity in the Chinese Eaw: Its Origin and Transformations
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LSE The London School of Economics and Political Science Equity in the Chinese Eaw: Its Origin and Transformations Xi Lin A thesis submitted to the Department of Government of the London School of Economics for the degree of Doctor of Philosophy, London, February 2008 UMI Number: U615926 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U615926 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 p % ° \% ? Library WMhUM'v**- .wWBww*3’ ^ I |S 5 ^ Declaration I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. Abstract This thesis is about equity in the Chinese law. In the classical Chinese literature, it was referred to as qingli lit S , which means ‘social obligations’ to balance the rigidity of positive laws. Like its Western counterpart, this equity entails a twofold meaning: (1) the moral principles that have been into the positive laws (which Huang referred to as ‘official representation’) and (2) in judicial practice, the correction of hardship that arises out of the deficiency as inherent in positive laws. As far as its historical evolution is concerned, this thesis examines three consecutive periods, namely imperial China (221BC to 1911), revolutionary period (1911-76) and reformist era (1978-present). In imperial China, equity followed a path similar to its Roman counterpart in that there was a harsh law first, into which equity was gradually incorporated, until it reached its maturity in the Tang Code of 653 AD. This imperial construct was swept ruthlessly away by the revolutionary thunderstorm in the early 1910s. In the midst of this tempest, the communist effort to seek an alternative to both traditional and imported models culminated in creating a legal system called People’s Justice. Equity in this period was reinterpreted as mass participation and mobilisation. However, Mao’s idealism not only turned the whole nation into chaos but also devoured its own devoted followers. This was partly the reason why in 1978 the Deng-led government unanimously held that China should relink with the outside world. In this state-led integration to global capitalism, equity underwent its second turn, now defined as local contextualisation of the rapidly formalised and westernised laws. The conclusion duly analyses both predicaments and opportunities for further development of equity in China. It calls for as much a reinvention of traditions as an attention for local contexts to construct a modern equity in China. Acknowledgements I can still remember vividly the first time I ‘met* Chun Lin my supervisor. It was a phone call before I arrived at the LSE, during which her soft voice sounded calm and soothing. This was confirmed later by Rodney Barker who commented that Chun is very nice and would ‘take care o f me. This impression was gradually fleshed out over the years throughout my PhD study. She is passionate and yet demure, critical and yet motherly, encouraging and yet demanding. For me as such a sentimental kid, I cannot hope for a better supervisor, whose composure and persistence proved to be an indispensable antidote to cure my anxieties and emotional vicissitudes. Once this journey was started, on my way I was lucky enough to receive advice and help from many people in the academia. I remembered my numerous petty chats and hearty laughs with Stephan Feuchtwang who lent me not only his private collection of books, but ideas, inspirations and a sense of English humour. The methodology workshops chaired by John Sidel were of invaluable assistance, while Chris Hughes shared with me his moments of disappointments and discoveries with the School-purchased database on Chinese journal articles. Sebastian Balfour read and commented on my first few drafts, while David Held and Francisco Panizza thoughtfully provided their ideas on globalisation and democracy. Peter Ferdinand my external examiner read my thesis with such a critical care that even the tiniest misspelling would not escape his scrutiny. Also, I have discussed whole or part of my thesis with many academics from outside the School: Xu Zhongming, Liu Xing, Xie Kang, Xiao Jinghua, Zhuang Jin and Lao Xiao from Zhongshan University; Yin Tian from Peking Law School; He Xin from Hong Kong Polytechnics University; Sun Changyong, Fu Zitang, Zhao Ming, Zhang Yonghe, He Jianping and Song Yubo from my alma mateur - Southwest University of Political Science and Law; Wang Renbo and Wang Zhiyi from China University of Political Science and Law; Chen Chuqing from the International Court of Justice in the Hague; Michael Dutton from Goldsmith College; Rana Mitter from Oxford University; Jane Nolan from Cambridge University; Richard Sanders from Northampton University; Wen Wengang and Yang Chen from Bristol University; Roderick MacFarquhar and Henrietta Harrison from Harvard University; Lucien Bianco from Paris; Neil J. Diamant from Dickinson College; Yan Yunxiang from UCLA and Andrew J. Nathan from Columbia University. In particular, I wish to thank Xiao Jinghua who kindly arranged access to the wonderful library collections at Zhongshan University. Also, during his visits to Cambridge and the LSE, Zhang Yonghe, my undergraduate teacher, talked many times with me about Chinese legal traditions and cultural issues that broadened my perspective. To Yang Chen who is more than a sister, how could I forget to mention her critical comments and heart warming encouragements when I sought refuge at her home in Northampton? To each and every one of the abovementioned academicians, I owe my most heartfelt appreciation. In terms of library resources, there could be no better place than London to offer most diverse resources accessible to research students. The LSE library has not only wonderful social science collections but also a comprehensive training package by the IT services. I walked my first awkward step in using such softwares as Endnote, Nvivo and SPSS. The Methodology Institute and Teaching and Learning Centre (TLC) at the LSE were equally supportive. In addition to the LSE, other libraries such as the British Library, the Senate House Library and the SOAS, SAS, UCL, King’s College libraries were all within travel’s reach. I have benefited tremendously from living in a place so resourceful as London. Throughout the years, parts of this thesis were presented at various conferences and workshops, including Harvard Project for Asian and International Relations (HPAIR), Cambridge Inter-Disciplinary Chinese Studies, Oxford Green Economics Conference, Doctoral Student Workshop at Oxford Politics Department and different workshops at the LSE. I have also delivered speeches at different places, such as Zhongshan University, Xiamen University, Southwest University of Political Science and Law, Cambridge, Northampton, Oxford, and the LSE. The participants’ feedback from these conferences, workshops and speeches were quite helpful in revising my ideas. In the summer of 2005 and 2006, I did a field study at the Guangzhou Intermediate Court, the Panyu Court and the Shenzhen Intermediate Court. The coundess alumni- brothers and —sisters at these courts remarkably facilitated my research and patiently answered questions posed by a naive student. In particular, Wan Yunfeng arranged access to his own cases while Xie Ping kindly helped me to contact more than 20 interviewees. During our frequent phone conversations she offered persistent support and advice. Geng Lei, Pu Xiaohong and Lin Boxun, all my undergraduate classmates kindly assisted me to access case archives, fill out questionnaires and conduct interviews. Pan Pan and Lao Chen who helped me to find lodgings in Guangzhou never failed to lend me a hand whenever I asked for help. For me, they are all my family, as without their generosity and assistance I wouldn’t have been able to get so far. During my last stage of writing up, Randy Colwell, also part of my family, read my manuscripts at different stages and gave incisive feedbacks. Rachel Shaw from Sheffield and Fintan McCullagh my colleague and best friend at the LSE equally helped to proofread my rather coarse ‘final drafts’ and corrected endless numbers of mistakes that were likely to be made by non-native speakers. My colleagues at the LSE, such as Francisco Paris, Pierre Hauser, Achim Goerres, Shih Fang-long, Helen Addison, Suzana Carvalto, Hyun-seok Chang and Eva Maria-Nag, and my 'gang* in Sheffield and Northampton, Chen Wei, Wang Bo, Song Xiongwei, Caterina Weber, Raymond Yu Liu, Maoxiang Jiang, Ying Hu, Tang Liangyu and Peng Jiang, were invariably a source of courage and inspiration for me. Suzana’s numerous pats on my shoulders were particularly heartening to me whenever I felt dispirited, crestfallen and frustrated. Moreover, this study was funded by research studentships and departmental funds from the LSE as well as the Great Britain-China Educational Trust.