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Notes and References Notes and References 1 Pluralized Jurisprudence in the Socialist Market 1 See ‘rights and interests’ in Ronald C. Keith, China’s Struggle for the Rule of Law (Basingstoke and New York: Macmillan and St. Martin’s Press, 1994), pp. 81, 97, 112, 114–15, 118, 140. The term’s relevance to human rights protection was also discussed in R.C. Keith, ‘The New Relevance of “Rights and Interests”: China’s Changing Human Rights Theories’, China Informa- tion, vol. x, no. 2 (Autumn 1995), pp. 38–62 and in Keith, ‘Legislating Women’s and Children’s “Rights and Interests” in the PRC’, China Quarterly (hereinafter CQ), no. 149, March 1997, pp. 29–55. 2 This chapter significantly expands on the brief discussion of ‘pluralized jurisprudence’ in Ronald C. Keith, ‘Post-Deng Jurisprudence: Justice and Efficiency in a “Rule of Law Economy”’, Problems of Post-Communism, vol. 45, no. 3, May–June 1998, pp. 48–58. This 1996 article did not have the benefit of reference to crucial 1997–99 textbooks on jurisprudence and a round of related Beijing interviews in 1998 with senior Chinese jurists. 3 Authors’ italics. ‘Li Ruihan Speech at CPPCC Closing’, FBIS-CHI-1999-0312, 11 March 1999. 4 See Liu Shengping’s report on collective correspondence on jurisprudence, ‘Falixuede gaige yu fazhan – bitanhui’ (Reform and the development of jurisprudence – a forum in writing), Faxue (Legal Studies) (Renda) no. 7, 1995, p. 17. 5 It should be pointed out that while Gao was somewhat critical of Deng Xiaoping’s specific theory relating to the 16-character formulation con- cerning law, this book has been taken as an example of how to interpret the 15th Party Congress September 1997 formulation, ‘running the country according to law and establishing a socialist rule-of-law country’. See, for example, Li Shuangyuan and Xiao Beigeng, ‘Fazhi shehui – Zhongguo fazhi jinchengde zuizhong mubiao’ (The end goal of China’s progress towards to the rule of law is a rule-of-law society) Faxue (Shanghai), no. 1, 1998, p. 15. 6 Hao Tiechuan, ‘Lun faxuejia zai lifazhongde xuo yong’ (On the role of the jurists in law-making) Zhongguo faxue (Chinese legal science), no. 4, 1995, pp. 36, 40. 7 Sun Guohua, et al., eds, Zhonghua faxue da cidian (The Chinese Encyclope- dia of Legal Studies) (Beijing: Zhongguo jiancha chubanshe, 1997), p. 89. 8 See Wang Guochun, Xiandai falixue: Lishi yu lilun (Contemporary Jurispru- dence: History and Theory) (Hunan chubanshe, 1997), p. 2. 9 See ‘Communique of the 3rd Plenary Session of the 11th Central Commit- tee of the Communist Party of China’, 22 December 1978, Peking Review, no. 52, 29 December 1978, p. 14. 10 Qiao Keyu, ed., Falixue jiaocheng (Instructional Program in Jurisprudence) (Beijing: Falu chubanshe, 1997), p. 78. 11 Ibid., p. 79. 247 248 Notes and References 12 See Wang Guochun, Xiandai falixue: Lishi yu lilun, pp. 1–3. 13 On this distinction see ‘Dialectics of Liberating, Developing Productive Forces’, Renmin ribao, 18 September 1992, p. 5 in FBIS-CHI-92-191, 1 October 1992, pp. 38–9. 14 See Jiang Zemin’s Political Report to the 14th Congress, FBIS-CHI-92-198- S, 13 October 1992, p. 27. 15 ‘Decision of the CPC Central Committee on Some Issues Concerning the Establishment of a Socialist Market Economic Structure’, Beijing Review (hereinafter BR), 22–8 November 1993, p. 12. 16 Donald C. Clarke and James Feinerman, ‘Antagonistic Contradictions: Criminal Law and Human Rights in China’, CQ, no. 141, March 1995, p. 137. 17 Sun Guohua, ‘Lun fa yu liyizhi guanxi’ (On the Relation between Law and Interests), Zhongguo faxue, no. 4, 1994, p. 37. 18 Xu Xianming, ed., Gongmin quanli yiwu tonglun (Introduction to Citizen’s Rights and Obligations) (Beijing: Qunzhong chubanshe, 1991), Preface. 19 Ma Changshan, ‘Long shimin shehui lilun diu fa benzhi de zai renshi’ (Rethinking the essence of law according to the theory of civil society), Faxue yanjiu, no. 1, 1995, p. 43. 20 This book details the extent of western influence on domestic discussion of legal change and human rights. For analysis of China’s rejoinders to ‘human rights diplomacy’, see John Cooper, ‘Peking’s Post-Tiananmen Foreign Policy: the Human Rights Factor’, Issues and Studies, vol. 30, no. 10, pp. 49–78 and Andrew Nathan, ‘Human Rights in Chinese Foreign Policy’, CQ, no. 139, September 1994, pp. 622–43. 21 Luo Mingda and He Hangzhou, ‘Lun renquan de shuxing’ (‘On the individ- ual character of human rights’), Zhengfa luntan (Tribune of Political Science and Law), no. 1, 1993, p. 56 as cited in R.C. Keith, ‘Post-Deng Jurisprudence . .’, op. cit., p. 51. 22 See Li Buyun, ‘Lun renquan de shanzhong cunzai xingtai’ (On the three extant forms of human rights), Faxue yanjiu, no. 4, 1991, p. 13 as cited in Ronald C. Keith, ‘The New Relevance of “Rights and Interests”: China’s Changing Human Rights Theories’, op. cit., p. 48. 23 Yang Haikun, ‘Falu, liyi tiaozheng, shehui wending he fazhan’ (Law, interest adjustment, social stability and development), Faxue (Renda), no. 10, 1993, p. 24. 24 See the scholarly notations of Chapter 2 for details of the literature. 25 For example, refer to Qin Youtu and Fan Qirong, eds, Shehui baozhang fa (Social protection law) (Beijing: Falu chubanshe, 1997). 26 For more on this see Ronald C. Keith, ‘Legislating Women’s and Children’s Rights and Interests in the PRC’, op. cit., pp. 47–8. 27 Jiang Zemin’s political report in Zhongguo gongchandang dishiwuzi quanguo daibiao dahui wenjian huibian (Compiled documents of the Chinese Com- munist Party 15th National Party Congress) (Beijing: Renmin chubanshe, 1997), p. 25. 28 Ibid., p. 21. 29 Ibid., p. 24. 30 Explanation of the historical and political background and contents of these three concepts was provided in a 9 June 1998 interview with Zhang Notes and References 249 Guangxing, a prominent expert at the CASS Institute of Law. Zhang was of the opinion that the substance of Jiang’s chan quan tended to emphasize ‘ownership’ rather than ‘property rights’. 31 Zhang Wenxian, Falixue (Jurisprudence) (Beijing: Falu chubanshe, 1997), pp. 316–17. A similar argument was advanced by Ma Lina who argued that within Deng Xiaoping’s emphasis on the primary stage of socialism and in response to the related underdevelopment of productive forces it was nec- essary to unify fairness and efficiency. See Ma Lina, ‘Shehuizhuyi shichang jingji tiaojian xia gongping yu xiaolu de tongyi’ (The unification of fairness and efficiency under the conditions of the socialist market economy), Zhengfa luntan, no. 1, Feb., 1998, p. 107. 32 Gong Pixiang, ‘Zhongguo fazhi xiandaihua mianlin de si da maodun’ (China is facing four big contradictions in the modernization of its legal system), Faxue (Legal science) (Renda), no. 5, 1995, pp. 47–50. Originally published in Tansuo yu zhengming (Dialogue and contention), no. 3, 1995, pp. 3–6. 33 Qi Yanping, ‘Fade gongping yu xiaolu jiazhi lun’ (Theory on the law’s values of fairness and efficiency), Lilun faxue, fashixue (Jurisprudence and histori- cal studies), no. 6, 1996, pp. 29–34. 34 Zhang Guangbo, ‘Xuexi Deng Xiaoping jianshe you Zhongguo tese shehuizhuyi lilun, yindao faxue yanzhe zhengque daolu xiangqian fazhan’ (Studying Deng Xiaoping’s theory on the establishment of socialism with Chinese charac- teristics so as to develop jurisprudence in the right direction), Zhongguo faxue, no. 4, 1995, p. 48. 35 Zhang Guangbo, ‘Xuexi Deng Xiaoping jianshe you Zhongguo tese shehuizhuyi lilun . .’, op. cit., p. 46. 36 Much of the analysis of this theory follows closely on discussion in R.C. Keith, ‘Post-Deng Jurisprudence . .’, op. cit., pp. 54–5. For Tong’s prize- winning essay and a follow-up essay, see Tong Zhiwei, ‘Yong shehui quanli fenxi fangfa chonggou xianfa tixi’ (On reconstructing the system of basic con- stitutional law studies using the analytical method of socio-rights), Faxue yanjiu, no. 5, 1994, pp. 18–24, and Tong Zhiwei, ‘Zailun gong shehui quanli fenxi fangfa chonggou xianfaxue tixi’ (Again on reconstructing the system of basic constitutional law studies using the analytical method of socio-rights), Faxue yanjiu, no. 6, 1995, pp. 68–77. 37 Sun Xiaoxia, ‘Lun falu yu shehui liyi – dui shichang jingji zhong gongping wentide ling yizhong sikao’ (On law and social interests – reflecting on a dif- ferent idea on the problem of fairness in market economy), Zhongguo faxue, no. 4, 1995, pp. 53–4, 58. 38 Zhao Shiyi and Zou Xueping, ‘Dui “yong shehui quanli fenxi fangfa chonggou xianfaxue tixi” de zhiyi – yu Tong Zhiwei tongzhi shangque’ (On the validity of ‘On reconstructing the system of basic constitutional law studies using the analytical method of socio-rights’ – a discussion with Comrade Tong Zhiwei), Faxue yanjiu, no. 1, 1995, pp. 49–55. 39 Tong Zhiwei, ‘Gongmin quanli guojia quanli dui li tongyi guanxi lun gang’ (An outline of the relationship between citizen’s rights and state power – a unity of opposites relationship’, Zhongguo faxue, no. 6, 1995, p. 19. 40 Tong Zhiwei, ‘Lun falixue de gengxin’ (On the renewal of jurisprudence), Faxue yanjiu (CASS Journal of Law), no. 6, 1998, pp. 8–10. 250 Notes and References 41 Liu Han, ‘Jieshi quanli yiwu fazhan guilu de yibu li zuo . .’ (A masterpiece in revealing the law of development of rights and obligations . .), Zhongguo faxue, no. 3, 1995, pp. 118–20. See also Albert Chen, ‘Developing theories of Rights and Human Rights in China’, in Raymond Wack, ed., Hong Kong, China, and 1997: Essays in Legal Theory (Hong Kong: Hong Kong University Press, 1993), pp. 123–49. 42 See Ru Xin, et al., ‘Xiao zhengfu da shehui’de lilun yu shijian’ (The theory and practice of ‘small government and big society’) (Beijing: Shehui kexue wenxian chubanshe, 1998), passim.
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