OccAsioNAl PApERs/

REpRiNTS SERiEs 0 '• iN CoNTEMpORARY • AsiAN STudiEs NUMBER 5 - 1978 (17)

THE ROLE OF LAW IN THE PEO­ () PLE'S REPUBLIC OF CHINA AS I 0 REFLECTING MAO TSE­ 0 TUNG'S INFLUENCE Shao-chuan Leng

ScltoolofLAw UNiVERSiTy of MARylANd() ~ OccAsioNAl PApERs/ REpRiNTs SERiEs iN CoNTEMpORARY AsiAN STudiEs

General Editor: Hungdah Chiu Executive Editor: David Simon Associate Executive Editor: Arthur Webster Managing Editor: Judith Warfield Editorial Advisory Board Professor Robert A Scalapino, University of California at Berkeley Professor Martin Wilbur, Columbia University Professor Gaston J. Sigur, George Washington University Professor Martin Wilbur, Columbia University Professor Gaston J. Sigur, George Washington University Professor Shao-chuan Leng, University of Virginia Professor Lawrence W. Beer, University of Colorado Professor James Hsiung, New York University Dr. Robert Heuser, Max-Planck-Institute for Comparative Public Law and International Law at Heidelberg Dr. Lib-wu Han, Political Science Association of the Republic of China Professor K. P. Misra, Jawaharlal Nehru University, India Professor J. S. Prybyla, The Pennsylvania State University Professor Toshio Sawada, Sophia University, Japan Published with the cooperation ofthe Maryland International Law Society. All contributions (in English only) and communications should be sent to Professor Hungdah Chiu, University of Maryland School of Law, 500 West Baltimore Street, Baltimore, Maryland 21201 USA. All publications in this series reflect only the views of the authors. While the editor accepts responsibility for the selection of materials to be published, the individual author is responsible for statements of facts and expressions of opinion contained therein. Subscription is US $10.00 for 10 issues (regardless of the price of individual issues) in the United States and Canada and $12.00 for overseas. Check should be addressed to OPRSCAS and sent to Professor Hungdah Chiu. Price for single copy of this issue: US $1.00 ©1977 by The Journal of Criminal Law and Criminology. THE ROLE OF LAW IN THE PEOPLE'S REPUBLIC OF CHINA AS REFLECTING MAO TSE-TUNG'S INFLUENCE

By SHAO-CHUAN LENG

CONTENTS Competitions of Two Models of Law 1 [356] Class Nature of People's Justice 8 [363] Law As An Instrument of Social Engineering 11 [366] Implications of the Anti-Confucian and Pro-Legalist Cam- paign 14 [369] Conclusions and Future Prospects 18 [373]

Reprinted from The Journal of Criminal Law & Criminology (North­ western University School of Law), Vol. 68, No.3 (September 1977), pp. 356-373, with permission. Original page number ofthe article appears in brackets. Shao-chuan Leng is Doherty Foundation Professor of Government and Foreign Affairs at the University of Virginia. Among his many publications are the following books: Japan and Communist China (New York: IPR, 1958); Sun Yat-sen and Communism (With N.D. Palmer) (New York: Praeger, 1961); Justice in Communist China (Dobbs Ferry, N.Y.: Oceana, 1967); and Law in Chinese Foreign Policy (With Hungdah Chiu) (Dobbs Ferry, N.Y.: Oceana, 1972).

THE ROLE OF LAW IN THE PEOPLE'S REPUBLIC OF CHINA AS REFLECTING MAO TSE-TUNG'S INFLUENCE

SHAO-CHL\:-- L£:\G

During the hevdav of the Cultural Revolu­ Whatever the rea,ons for :\tao·, statemenr-. tion (I 966-69) in the People's Republit of .mJ whate\er the re,t'iom for others to quote China, :'\fan Tse-tung called for the "~ma~hing them. there j, little doubt about the magnitude of Kung-chien-fa (public securit\. procurato­ of :'\tau's impact on the Chinese legal system. rate. and judicial organs)"' and he was abo fhis p;.~per will attempt to examine the extent quoted as saying: "Depend on the rule of man. to which Mao ha' influenced the Chinese legal not the rule of law ."2 Howner. at the time of "'tern. This influence will be examined in the adoption of the 1975 Constitution of the terms of the competition of two models of law, PRC, a statement made bv :'\tao in 1954 received the da" nature of people's justice, law as an special emphasis from Chinese spokesmen: "An instrument for "'ci.tl engineering, the implic.t­ organization must have rules, and a state also tions of the Anti-Confucian and Pro-Legali,.t must have rules; the Constitution is a set of Campaign, and trends for the future 5 general rules and is a fundamental chaner."3 !'vforeover. following !'vfao's recent death. the COMPETITIOS Of Two :'\IODELS OF LAW new Chinese leadership has frequently cited Two medels of lav. have cuc,istcd and com­ the late Chairman's words to stress unity. disci­ peted with each other in the People's Repub:ic pline, law and order • of China. One may be calleLi the jural (formal) model, and the other the societal (informal) 6 1 ~t.tn T'e-tung'"i 19fii in,truction in CHt'....:r.-KL'~f. modei. just as Fa (positive law) and Li (moral WEN-HCA TA-KE-MI!'OL CHl:!'iC~-YAO WES-CHIES Hl.'I­ code) coexisted in tradit:onal China to ref\"ulate Pll="' (lmporldllt Chinese Communbt documenb j..,. human hehavior and social order, so do the sued during the Great Cultural Re\olution) 209 jural and societal moc'cis uf !aw coexist in (1973). 'Completely Sma•h thr Feudal, CnpltaiHt and Revuwn­ contemporan China. :\loreover, formal rules Bt Legal SVItem, Canton Fan-Peng-Lo het-hsien (Anti­ Peng and Lo's Black line) (~o. 2., 1968). English cited asJ .M.J .P.]. The authorities in Hunan Province translation can be found in t..: .S. Comulate-General. (;\f.tn'' nati\e province) are also reponed to ha\e Hong Kml!(, SEncnoss FROM CHIS., :'>IAISLASD called on the popul,tee to 'ing a 'iollg entitled "]he :\IAGAZISE (S.C.~f.:\1.), 23 (:\o. 625, 1968) [hereinaf­ fhree Main Rules of Di,cipline and Eight Points for ter cited as S.C.:\1.:\1.]. .\ttention." The song represents the "iron rJj,, ipline" 3 See, e.f<., Chang Chun-chiao. Repurt o} the Rn·;,um worked out hv ~lao for the Red .\rm' in the earl\ of the Con•lllutzon, Oocl'MEST' oF THE FtRH SEsSios years of revolution. :-.; .Y. Time'i, Oct. I, 1976, at :\ Of THE fot:RTH :\.HIOSAL PEOPLE'S COSGRESS OF 10, wl. I. THE PEoPLE's REPt:BLIC or CHt,.;A 33 ( 1975). 5 ;vtv sources con,ist of doca'"Tlentan· material' anrl ' In a speech euiogizin;: Mao on September iS, inteniews \•~;ith recent C~1:nese emigres, some of 1976. Hua Kuo-feng urged the v.hole countn to whom were former Comm·Jni~t tadres anrl other'- of follow the late Chairman·, often-heard "three do's whom had some per,onal experience with people'' and three don't;'' instruction: "Practice Marxism, justice. and not re\ isionism; unite, and don't split; be open 6 ~lost authors seem to agree on the existence ot anJ ahO\ehoard, and don't intrigue and tompire" two models ollaw in rhe PRC, although using difkr­ ,\(,mona/ •Peech b) Comrad.> Htw Kuo-fen!{, 19 PEKt"'· "nt labels to describe them. Sep, f.g., J. CoHES, TH>. REv. 16 (:\o. 39, 19i6). The 'arne admonition of CRIMI>IAL PROCESS .s THE PEOPLES REi't:BLIC Of ~lao was repeated in a joint editorial of the People'' CHISA. 1949-1963: A,; (STRODl'CTIOS (191:i:-l); SHAO­ !Jail\. the l.iheration .-\rm\ Daih. and the Red Flag C:Hl'AS LEsc.. jt·sncE t" CoMMl""'" CHtsA: :\ on Octoher 10, 19i6, to underline the appeal ol St RVH OF rHE J I:DIC.UL S\ STEM oF TH>. CHJSESE "upholding the unity and unification of the Partv. PEOPLE'S REPl"BLK (1967) [hereinafter cited as LENG]; strengthenmg sense. of organization .1:1d distipline. Li. The Rolf uj Law w CommunLptratwn.• oj Chwe and Law Enforcement ple\ Daih) (Peking) Oct. 10. 1976. at I [hereinafter m Chma: 1'149-/970. 22 AM. j. CoMP. l. 713 (1974). 2 CoNTEMPORARY AsiAN STUDIES SERIES

h::l\·e pl~,·ed" ~ccondan· role in e~ch imt;tnce.' be e'ceeded in order to right a 11 rong-, or else Reflecting Sm·iet and \\'estern influence. the the wrong cannot be righted."" During the jural model st~nd~ for formal. elaborate, and Kiangsi So,·iet period of 1931-1934, the Chinese codified rules enforced by ~ centr·alized and So,·iet Republic under the direction of the in-;titution~lized bureaunacv. The societal \lo~co11·-oriemed "returned ~tudents group" model, on the othet· hand. focuses on sociallv enacted a number of basic laws and established apprcl\'ed norms ~nd ,·alues, implemented bv a svstem of "people's courts" including some political socialization and enforced by social elaborate judicial proredu1·es.'" :\s the Kuom­ pressures. intang threat increased in 1933, both :\.lao Tse­ Although labelled the Communist Chinese tung and Chang Wen-t'ien maintained that equi\'alent of Confucian Li, the informal model local authorities should ha,·e more freedom represents a distinctly :\hoist approach to law. and power in dealing with counter re\'olution­ The proper modes of conduct based on the aries. Chang expressed this \'iew in an essav collecti\'e ethics of an egalitarian societ,· are ad\'ising judicial cadres not tn be concerned communicated to the people through education with the "niceties of legal procedures and pro­ and mass participation in the political-legal ,·isions" but with the "creation of our laws process. Compliance is secured by the individ­ according to revolutionary needs in the course ual's internalization of social norms and bv of brutal class struggle."" During the Yenan community pressure and coercion. The formal period, when the Chinese Communist Partv sanctioning p1·ocess of the state comes into play was under \lao's undisputed leadership, there only in serious cases of de\'iance. appeared, on the one hand, a tendency in the Because of his anti-bureaucratic bias and Communist-held area to regularize the judicial mass-line orientation, Mao preferred informal­ structure and process. On ihc other hand, it)' and flexibility in handling political and legal there were mo,·es to refine and popularize issues.• While recognizing the need for a legal mass line techniques in applying sanctions and system in a society, he nevertheless considered settling disputes. These techniques included law merely as a useful tool to political ends and on-the-spot trials and mass trials to mobilize would not let formal rules and procedures and educate the masse' and also the develop­ hinder the interest of the revolution. As early ment of mediation as an effecti\'e means for as 1926, he articulated his mass revolutionary resoh·ing civil and minor criminal cases." method by saying that "proper limits have to In the vears immediately following the founding of the Chinese People's Republic in 7 For a discussion of law in traditional China, see D. BoDDS & C. ~foRRIS, LAw IN IMPERIAL CHINA 1949, the dual models of law continued to (1967); CHu TUNG-TSU, LAw AND SociETY IN TRADI­ operate in a complememarv yet competiti,·e TIONAL CHINA (1961); S. VAN DER SPRENKEL. LEGAL manner. A uniform, qation-wide court system INSTITUTIONS IN MAINLAND CHINA (1962). was being developed along with t.he promulga­ 'The mass line is a fundamental Party principle of leadership, expounded by Mao, requiring party tion of such statutes as the Land Reform Law cadres to be integrated with the masses and to lead and the :\larriage Law. At the same time, the masses in implementing the Parry's policy. Epito­ justice was often carried out by ad hoc people's mized by the phrase "from the masses, to the masses," tribunals, mass trials, or public security organs it prescribes a process of learning the masses' views, (the police) in the form of large scale political "concentrating" them into policy decisions, and bringing those decisions back to the masses for imple­ mentation. Mao Tse-tung, So1TU' Qutstio11.1 Conarning 9 Report on the Investigation of the PtasaTlt Movtmmt. Method• of Ltadtnhip, 3 SELECTED WORKS OF MAO I SELECTED WORKS OF !'v!AO TsE-Tt.:NG 27 (1954). TsE-TUNG 117-22 (1967). In terms of work style, the 10 LENG, 1upm note 6, at 3-5. mass line embodies the ~faoist preference for mobi­ 11 Lo Fu (Chang Wen-t'ien), Be .~ltrrilt>J Tou·ard lizing mass participation in policy execution through Our Class Ennnit>, Tot.:-CHESG (Struggle) 3 (:>io. 49. nongovernmental organization and activities. The March 2, 1934). For a detailed discus;ion of the work emphasi> is un direct popular .tction rather than of suppre~sing counterrevolution.u ie""~ in the Kiangsi bureaucratic administration. for a good discussion Soviets, see P. GRIFFIS, THE CHISESE CoMMt:NIST of the mass line, see J. LEWIS, LEADERSHIP IN CoM­ TREATMENT OF Cot:NTERREVOLt.:TioNARIES: 1924- MUNIST CHINA, 70-100 (1964); j. TOWNSEND, POLITI· 1949 11 ( 19i6) and T s..o Po-t, KIASGSI St:-wEI-." CAL PARTICIPATION IN COMMt:NIST CHINA 72-74 CHIH CHIES-1.1 CHI CH't PENG-KUEI (The rise and fall ( 1967). Luhman, .\tao and Mtdiatior.: Polltir.1 ""d Di.•• of the Chinese Soviet in Kiangsi) 394-51 (1969). putt Rt1olution m Commum.

campaigmY .-\s China adopred !he Sm iet 'I\ le People's Coun. ;md the re,oluttcodification ;md lor bureaucraric normalizarion. In whar m"' be observance of rhe law 17 :\lao he-tung, ne\er­ talled rhe era of rhe PRC', consriruriunal exper­ thele" . .tppeared to be le" enthu,i.t'll<. !11 l11' imem, 1954-195i, rhe ascendenn of rhc jural speech before the same Congress he 1\arnt>d model was marked by rhe adoprion of a comri­ his party of the evil of bureaun. .Hism and th1:0 rurion, m·ganit legislariun for rhe courl' and danger of becoming isulatt>d ft om the ma,".-'·'" procuracv, and a series of subsrami,·e and pro­ China·, progress toward a stable legal order cedural laws and regulations. Equaliry before came to an abrupt end in 195i when the Com­ the law, the right of legal defense, proteniun munist elites launched an Anti-Rightist cam­ against arbitrary arrest, and independence of paign as a counter attack against strong criti­ the judiciary were guaranteed by the Constitu­ cisms of the Party evoked by the Hundred tion and other documents. Efforts were also Flowers !\lovement.19 Even more far-reaching made to draft civil, criminal, and procedural was the PRC's decision to abandon the Sm iet codes. 14 It is true that even in this period there model in favor of the :\1aoist developmt·ntal was a continued informalization and politiciza­ strategy (the Great Leap Forward) that stre"ed tion of the legal work." But an important mas• mobilization and "politics in command."'" trend was started toward more regularity ami The impact on the legal field was a decisin~ institutionahzation. At the Eighth National shift from the jural model to the societal model. CongreS> of the Chinese Communist Party in Dlll·ing the retrenchmelll ye.ll' of the early September 1956, Liu Shao-ch'i, then Vice 1960's, when Liu Shao-ch'i was the head of Chairman of the Chinese Communist Party state, there was an occasional reappearance of Central Committee, spoke of the reasons for legal discussions in juridical circles.21 On the regularizing the legal system. He said, "now . . . the period of revolutionary storm and 17 Spuch lrj Comrade Tung Pi-u'll., 2 EIGHTH :\A­ TIONAL CONGRESS Of THE COMMUNIST PARTY Of stress is past, new relations of production have CHINA 87 (1962) (Speeches): Re;o/ution of thr EiKhth been set up, and the aim of our struggle is IV atumal Congress of tht Communi;! Party of Chma on tht changed into one of safeguarding the success­ Po/uical Rtport of tht Central Committu, I EIGHTH ful development of the productive forces of NATIONAL CoNGREss of THE CoMMur-;tsT PARTY or society; a corresponding change in the methods CHINA 128-29 (1962) (Documents). 18 Mao Tse-tung, Opming Addren at tht Eighth .Vn­ of struggle will consequently have to follow. tiona/ CongreH of tht Communi.st Part) of Chzna, I and a complete legal system becomes an abso­ EIGHTH NATIONAL CoNGRESS Of THE CoMMt!NIH lute necessity." 16 Similarly, the speech given by PARTY or CHINA 9 (1956) (Speeches). Tung Pi-wu, then President of the Supreme •• For a general discussion of the Hundred Fl.:>wer> Movement, see M. GoLDMAN, LITtRAR\. 0ISSE>;T '" 13 The Land Reform Three-Anii, Five-Anti, and COMMUNIST CHINA, 152-202 (1967); THE Ht!NDRED Suppression of Counterrevolutionaries Movements FLOWERS CAMPAIGN AND THE CHINESE lNTELLE.C­ were among those nation-wide mass campaign' TL'ALS (R. MacFarquhar ed. 1960). Far a discu55ion launched during 1950-1952. Ste LENG, ;upra note 6, of the criricism of the PRC's legal system by Chinese at 35-39 and Tao, ;upra note 6, at 715-20. jurists, see SHAO-CHUAN LENG, supra note 6 at 57-63. " For details of rhe PRC's consrirutional experi­ ,. The Great Leap Forward was designed to accel­ ment in rhe 1950's, see COHEN, supra 1101e 6. ar 10- erate economic growth and socialist transformation 14: LENG, supra note 6, at 47-54: TAO-TAl HsiA, by stressing the mass line approach and the strategy GvmE TO SELECTED SouRcEs or MAI!'ILAND CHINA of"walking on two legs" -simultaneous development 1-76 (1967). English text of the 1954 Constitution is of agriculrure and industry and of indigeneous (labor in CoNSTITt!TION of THE PEOPLE's REPUBLIC: Of intensive) and modern (capital intensive) projects. CHI"A (1954). Anides 73 to 103 contained provisio11s Set A. EcKSTEIS, CoMMt:SIST CHrsA's Ecoso!>uc for the courts, procuracy and rights of the people. GROWTH AND FOREIGN TRADE, 29-37 ( 1966); j. PRY- ,. Cohen. Tht Chine~e Comm:.tni.Chinese law," etc. 1 he 196\i CoNGRESS of THE CoMMUNIST PARTY of CHI"iA 82 issues of chen-fa· yen-chiu (Politiral-legal \tudie,), (1962) (Oocume11ts). Peking [hereinafter cited a• C.F.Y.C.] in particular. 4 CONTEMPORARY AsiAN STUDIES SERIES

whole. hm,·e,·er. the post 1957 trend C•1ntinued WJS Jltacked for ahu~e of powet· and for taking to >how the decline of the judiciary and procur­ a reactionarv ;tand. :1.-loreon~r. its cadre; "·ere acv in importance and the e,·er-expanding role accused of failing to carry out the ma-s line of Parn· committees and public o;ecuril\· organs according to the teachings of \lao Tse-tung .25 in Ia"· enforcement!' In an editorial titled "In Praise of Ltwlessne,s.'' The jural model suffered another serious the People'.< Daih called for the complete de­ setback during the Cultural Remlution ( 1966- struction of the "bourgeois" Ia"· so that the 69). The Cultural Revolution ,,·as initiated hv proletarian leg.tl order could he established."" \lao largelv to revolutionalize the bureaucratic To Jchieve the transformation of political­ establishment and to inculcate socialist values legal organs. \lao proceeded to have a large and beliefs. One of the targets under attack number of cadres purged without resort to am· was the existing legal structure, which the Red formal process. Among many law enforcement Guards labelled as a counterrevolutionary cre­ personnel removed from office were Yang ation of Liu Shao-ch'i and his fellow "capitalist Hsiu-feng. President of the Supreme People's roaders." Among others, the :1.1aoists criticized Court, Chang Ting-cheng, the Chief Procura­ Liu's group for supporting the "bourgeois" tor. and Hsiu Tzu-jung. the First Deputy Min­ systems of"equaljustice" and "defense counsel" ;ster of Public Securit\ .27 Liu Shao-ch'i, the and for resisting "leadership of the Partv m·er primJrv target of the Cnltural Revolution, was legal work."23 Following :l.fao's instruction to deprived of his post as the Chairman of the "smash Kung-chien-fu (Police. procurac~·, and People's Republic of China hv the decision of courts)," the Red Guards singled 0111 tl:e public the Central Committee of the Chinese Com­ security for special denouncement.24 The latter munist Party in disregard of constitutional pro­ cedure-"" contained many serious ~nicles on legal questions. The reform of the law enforcement appara­ LENG, supra note 6. at 72-73: A former prominent Chinese lawyer told the author that he was asked in tus during the Cultural Revolution was also 1954 by the Ministry of Communications to prepare accomplished through the wider use of mass a draft on maritime law. He completed the final line devices and the imposition of militarv con­ draft in the early 1960's as a member of the Codifica­ trol over "Kung-chien-b" by the People's Lib­ tion Committee. The entire project ended when the Cultural Revolution was launched in 1966. Howe,·er, eration Army (PLA).'" The court' >till existed his lectures on maritime law were published by the People's Publishing House in the 1960's for internal 25 Comrade Hsieh Fu-clueh Important Speech (ex­ circulation among organs concerned with shipping. cerpts), Canton Chiu-P'eng-Lo Chan-Po (Drag-out 22 For an illustration of the Party-controlled and P'eng-Lo Combat :-:ews), (:'\o. 3, Feb. 1968) in police-administered sanctioning process during the S.C.~LP. 5-i (:'\o. 4138, 1968); Suppmsion of the period between the late 1950's and the mid-1960's, .WaSJes is Bourgeois Dictatorship, Shanghai Wen-hui see A. BARNETT, CADRES, BUREAUCRACY AND PoLIT­ Pao,june 5, 1968, in S.C.:\LP., 1-7 (:'\o. 4210, 1968). 2 ICAL POWER IN COMMUNIST CHINA, 219-44 (1967); j. • S.C.M.P. 13 (~o. 3879, 1967). CoHEN. supra note 6, at 23-46; BAo Ruo-wANG U. 27 S.C.M.P. I (C'io. 4181. 1968); S.C.'.I.P. I (No. Pasqualini) & R. CHELMINSKt, PRISONER OF MAo 4182. 1968); Hungdah Chiu. Thr judicial System under (1973). the PRC Constitution, in THE ~Ew CosSTJTUTION OF 23 Completely Smash the Feudal, Capitalist, and Revi­ CoMMUNIST CHtsA: CoMPARATIVE As.,LYSES 86 (M. sionist Legal Systems, supra note 23-28. See also L. Lindsay ed. 1976); CHANG CHING-WEI. KUNG-FE! DITTMER, Ltu SHAo-CH't AND THE CHINESE CuL­ CHENG-CHIH WEN-T! LUN-CH! (Collection of essays on TURAL REVOLUTION 222-23 (1974); ·rao-tai Hsia, The Chinese Communist political problems), 158-59, 327- Tenth Party Congress and Future Droelopment of Law in 28 (1965). 8 China, in HousE CoMM. FOR FOREIGN AFFAIRS, OtL ' Liu was expelled from the CCP "for all time" AND ASIAN RIVALS. SINO-SOVIET CONFLICT-jAPAN and stripped of all his state posts b~ the decision of AND THE OtL CRtsts, HEARINGS BEFORE St:s-CoMM. the Party. See Communique of the Twelfth Enlarged ON AsiAN AND P.~ctFJc AFFAIRS, 93rd Cong., 1st & Plrnum of thr Eighth CC of the CCP, Oct. 31, 1968, in 2nd Sess. (1973-74); Li, supra note 6, at 104-09. J.M.J.P. ;>;ov. 2, 1968. at I. However, the right 10 " Mao's instructions issued in 1967 in CHUNG­ remove the head of state was reserved to the :'\ational KUNG WES HUA TA-KE-MING CHUSG-TAO WI::S-CHIEN People's Congre" by .-\rticle 2!1 of the 1!154 Constitu­ HJU-PJEN. supra note I, at 209. Chiang ching. Mao's tion of the PRC. wife. is reported 10 have demanded in 1968 that the '"The PLA began its imervemion in early 1967 by three org-dns, especially the public securitv, he com­ taking over the public securit,. bureaus. Sre, r.g., pletely smashed. S.C.M .M. 16 (:'>lo. 625, 196!1); SuR­ Sotict of the Publu Suunty .Hin1.1try and the Peki"g VEY OF CHINA :I.IAINLAND PRESS 9 (:'\o. 4182, 1968) Garri.

campaigm'" .\s China adopted the Smier ,1\Jt­ People·, Coun. anrl the re">hlll<~ll adoplt·cl fJ\ of e~:onomic development in 195:3, thc:re \\a',, the: Central Commiltee at the Eighth Congrt·,, general swing toward institutionalizauon and emphasized the need fur <:odifilallon .mrl for _bureaucratil normalilmtitutiullal e~pet­ thele" .•tppearcd lube lc" cnthu"a'll< In ht' iment, 1954-195i. the ascendenn of the jural speech before the same Congre.- he 1\amed model was marked by the adoption of a um,ti­ his party of the evil of bureaun.Jti'm and th•: tution, org.Init legislation for the court' and danger of becoming isolatt'd f1 om the ma"e' .'" procuracy. and a series of substanti,·e and pro­ China's progress toward a 'table legal order cedural laws and regulations. Equalit) before came to an abrupt end in 1951 when the Com­ the law. the right of legal defense. protection munist elites launched an Anti-Rightist cam­ against arbitrary arrest, and independence of paign as a counter attack against strong criti­ the judiciary were guaranteed by the Constitu­ cisms of the Party evoked bv the Hundred tion and other documents. Efforts were also Flowers !\fovement.19 E\ell more far-reaching made to draft civil. criminal, and procedural was the PRC's decision to abandon the Sn,iet codes. 14 It is true that even in this pel'iod the1·e model in favor of rhe Maoist developmental was a continued informalization and politiciza­ strategy (the Great Leap Forward) that stre"ed tion of the legal work." But an important nLtS\ mobilization and "politics in command.'.'" trend was started toward more regularit) and The impact on the legal fit·lrl was a decisive institutiun.llization. At the Eighth !':ational shift from the jural model to the societal model. Congres' of the Chinese Communist Party in During the retrenchment ye.n' of the earl~ September 1956, Liu Shao-ch'i, then Vice 1960's, when Liu Shao-ch'i was the head of Chairman of the Chinese Communist Party state. there was an occasional reappearance of Central Committee, spoke of the reasons for legal discussions in juridical circles!' On the regularizing the legal system. He said, "now . . . the period of revolutionary storm and 17 Speech by Comrade Tung Pi-uou, 2 EIGHTH :'\A· TIONAL CoNGRESS OF THE CoMMUNIST PARTY Of stress is past, new relations of production have CHINA 87 (1962) (Speeches); R.,o/utwn of the Eiffhlh been set up, and the aim of our struggle is IV atiunal Congres.< of the Communist Party of China on the changed into one of safeguarding the suLcess­ Polllical Report of thr Central Committu, I EIGHTH ful development of the productive forces of NATIONAL CoNGREss oF THE CoMMUNIS~ PARTY oF CHINA 128-29 (1962) (Documents). society; a corresponding change in the methods 18 Mao Tse-tung, Opening Addreu at tlu Eighth Na­ of struggle will consequently have to follow, tionn/ Congrw of tht Communist Party of Chma, I and a complete legal system becomes an abso­ ErcHTH NATIONAL CoNGREss oF THE. CoMMt:srsT lute necessity ." 16 Similarly, the speech given h) PARTY OF CHINA 9 (1956) (Speeches). Tung Pi-wu, then President of the Supreme 11 For a general discussion of the Hundred Fl<>we" Movement, see M. GoLDMAN, LITERARY DisSENT IN 13 The Land Reform Three-Anii, Five-Anti, and COMMUNIST CHINA, 152-202 (1967); THE Ht:'~LAND CHINA of "walking on two legs"-simultaneous development 1-76 (1967). English text of the 1954 Constitution is of agriculture and industry and of indigeneom (labor in CoNSTITUTION OF THE PEOPLE's REPUBLIC o.­ imensi,·e) and modern (capital intensive) proJects. CHI,;A (1954). Articles 73 to 103 contained pro\'isions Stt A. EcKSTEIJ', CoMMLNISl CHI>IA's EcosoMic for the courts, procuracy and rights of the people. GROWTH AND FoREIGN TRADE, 29-37 (1966); j. PRY· "Cohen. The Chinev Comm-:1ntII'T fruf,prodmu. /949-/959, 82 HARv. L. Rfv. 967 (1969); CHI>IA 256-340 (1970); F. SHI!RMA""· IOlOI OGY A"[) Li, supra note 6. at 80-88; Luhman. 'upm note 6, at 0Rf'ANIZATION 1" CoMMt:siST CHINA. 464-500 ( 1968). 546-51. " For instance. in the early 196philosophY of law," "state and legal SatwTUII Congrr11 of 1M Part.. I EIGH~ H :'\ HIO,;At theorie,," "history of Chinese law:· etc. 1 h<' l%l! CoNGRESS of THE CoMMUNIST PARTY oF CHISA 82 issues of chen-fa \en-chiu (Politi<-al-legal 'tudie,), 11962) (Document,). P<"king (he•·einafte; cnerl as C.F.Y .C.] in panirular. 4 CONTEMPORARY AsiAN STUDIES SERIES

whole. howe,er. the post 1957 trend cmuinued was attacked for abu~e of po"·er and for taking to show the decline of the judiciary and procur­ a reactionan 'rand. :\--loreo,·er. its cadres were arv in importance and the ever-expanding role accused of failing to carry out the mass line of Pan,· committees and public 'ecuritv organs according- to the teachings of .\lao T~e-tung." in law enforcement."' In an editorial titled "In Praise of Lawlessness," The jural model suffered another serious the PPople's Dailv called for the complete de­ setback during the Cultural Remlution ( 1966- struction of the "bourgeoi>" law so that the 69). The Cultural Revolution was initiated bv proletarian leg.tl order could be establi,hed.'" :\-lao largely to re,·olutionalize the bureaucratic To achieve the transformation of political­ establishment and to inculcate socialist \'alues legal organs. \lao proceeded to have a large and beliefs. One of the targets under attack number of cadres purgecl without resort to am· was the existing legal structure. which the Red formal process. Among many law enforcement Guards labelled as a counterrevolutionary cre­ personnel removed from office were Yang ation of Liu Shao-ch'i and his fellow "capitalist Hsiu-feng. President of the Supreme People's roaders." Among others, the \1aoists criticized Court, Chang Ting-cheng, the Chief Procura­ Liu's group for supporting the "bourgeois" tor. and Hsiu Tzu-jung, the First Deputy Min­ systems of"equaljustice" and "defense counsel" ;ster of Public Securit' .27 Liu Shao-ch'i, the and for resisting "leadership nf the Partv oYer priman· target nf the Cultural Re,·olution, was legal work.""' Following :'vfao's instruction to deprived of his post as the Chairman of the "smash Kung-chien-fu (Police. procurac~·, and People's Republic of China bv the decision of courts)." the Red Guards singled out tl:e public the Central Committee of the Chinese Com­ security for special denouncement.24 The Iauer munist Party in disreg-ard of constitutional pro­ cedure.28 containe~ many serious 4!rticles on legal questions. The reform of the law enforcement appara­ LENG, . Comrade Hsieh Fu-clueh Important Speah (ex­ circulation among organs concerned with shipping. cerpts), Canton Chiu-P'eng-Lo Chan-Po (Drag-out 22 For an illustration of the Party-controlled and P'eng-Lo Combat ~ews). (:>io. 3, Feb. 1968) in police-administered sanctioning process during the S.C.:\I.P. 5-i (~o. 4138, 1968); Suppmsion of tht period between the late 1950's and the mid-1960's, .Wasses is Bourgeois Dictatorship, Shanghai Wen-hui see A. BARNETT, CADRES, BuREAUCRACY AND PoLIT­ Pao,june 5, 1968, in S.C.!\I.P., 1-i (:\o. 4210. 1968). ICAL POWER IN COMMUNIST CHINA, 219-44 (1967); j. 26 S.C.M.P. 13 (~o. 3879, 1967). CoHEN. supra note 6, at 23-46; BAo Ruo-wANG u. "S.C.M.P. I (:\o. 4181. 1968); S.C.\I.P. I (No. Pasqualini) & R. CHELMINSKt, PRISONER OF MAO 4182, 1968); Hungdah Chiu, The judicial System under (1973). tht PRC CorLStitution, in THE :-lEw CoNSTITUTION OF 23 Complttely Smash the Feudal, Capitalist. and Rroi­ COMMUNIST CHINA: COMPARATIVE ANALYSES 86 (M. sionist Legal Systems, supra note 23-28. Stt also L. Lindsay ed. 1976); CHANG CHING-WEI. KUNG-FE! DtTTMER, Lw SHAo-CH't AND THE CHINESE CuL­ CHENG-CHIH WEN-TI LUN-CHI (Collection of essays on TURAL REVOLUTION 222-23 (1974); ·rao-tai Hsia, Tht Chinese Communist political problems), 158-59,327- Troth Party Cangrtss and Futurt Drotlopmrnt of Law in 28 (1965). China, in HousE CoMM. FOR FoREIGN AFFAIRS, OrL 28 Liu was expelled from the CCP "for all rime" AND ASIAN RIVALS, SINO-SOVIET CONFLICT- jAPAN and stripped of all his slate posts b~ the decision of AND THE OIL CRISIS, HEARINGS BEFORE St:B-COMM. the Party. Ste Communique of the Twelfth Enlargtd ON AsiAN AND PACIFIC AFFAIRS, 93rd Cong., 1st & P/mum of the Eighth CC of the CCP, Ocr. 31. 1968, in 2nd Sess. (1973-74); Li, supra. note 6, at 104-09. J .M.J .P. :\ov. 2, 1968. at I. However, the right to ,. Mao's instructions issued in 1967 in CHt:Nc­ remo"'' the head of state was reserved to the :\ational KUNL WEN HUA TA-KE-MING CHUSG-TAO Wt::S-CHIEN People's Congre" by .\rride 28 of the IY54 Constitu­ HIU-PIEN, supra note I, at 209. Chiang ching, ~lao's tion of the PRC. wife. is reported to have demanded in 1968 that the "'The PLA began its intervention in early 1967 by three organs, especially the public security, be com­ taking over the public securin· bureaus. Su, t.g., pletely smashed. S.C.M.M. 16 (:'olo. 625, 196li); SuR­ So/let of tht Publ!l Secunty .HinHtry and the Ptkmg VEY OF CHINA !\1AINLAND PR>.SS 9 (:'oio. 4182, 1968) Garri1unicipal Public !>nun/Y Buunu iJy tht Prkmg S.C.~I.P.j. Garri.

but functioned onlv sparingh·. There were oc­ in various path ol Yunn.1n pro\ in<<·.'"" 1111<· .ot casional reports of panicipation of the people·, reponed trial, in Pekmg anrl (..mton in 1~70. courts in the judicial process.'"' ~lore often people's courts pa"ed \entence, .. , Publi< 'eevidence indicates that the PL\'s fortunate was the procurac'. "hich was abol­ supervision of the administration of justice con­ ished, its functions and pOo 4157, 1968). documents are in the possession of the author. 30 E.g., K wangtung People's Broadcasting Station. 37 For radio reports and witnesses· accounts of a November 10, 1967, reported that the Kwangtung mass trial held in Peking in January 1970 and two Provincial Higher People's Court and the Camon other trials held in Canton in May 1970. see Tri11l by Municipal Higher People's Court sentenced twelve jury-Mainland Stylt, Hong Kong Standard, Aug. 23. counterrevolutionaries to death or imprisonment; 1970, at 6. New China News Agency (N.C.N.A.) Sept. 12, 1967 38 This is true especially in such cities as Peking [hereinafter cited as N.C.N.A.). reported a Peking and Canton. Sre Suunty Returns to It< Dutit.<, South Intermediate People's Court sentenced four criminals China Mo·ning Post (Hong Kong). April 8, 1971. at to death. Acwrding to both reports, the death sen­ 15. This was confirmed by several Chinese inform­ tences were approved by the Supreme People's ants who left China after 1973. Court. This procedure was also followed after the 311 Notice of the Chinese People's Liberation Army Chengchou Municipal Military Control Committee Military Control Section of the Public Securitv Or­ of the Public Security Organ had sentenced several gans of Meng-lien County in Yunnan Province (Aug. individuals to death (Hunan People's Broadcasting 8, 1972) and Notice of the Chinese PLA Molitan Station, May 12. 1968). Control Committee of Szu-Mao Region in Yunnan 31 E.g., Shangtung People's Broadcasting Station, Province (March 5, 1973). Copies of both documents, Sept. 5. 1957; Yunnan People's Broadcasting Station. which pronounced sentences upon a number of class March 15, 1968. enemies. are in the possession of the author. English 32 E.g., Hunan People's Broadcasting Station. Nov. translation of the first document is in Hungdah 8, 1967; Tsingtao People's Broadcasting Station. Chiu, IUPra note 27, at 108-10. March 5. 1968. "'/d. at 91-92. According to Chinese spokesmen, 33 E.g., Kwangtung People's Broadcasting Station, the procuracy was abolished in order "to stmplify. !\larch 15, 1968; Checkiang !'eople"s Broadcasting improve and transform the superstructure which "·as Station, Aug. 31, 1968. not suitable to socialist economic basis. and to simplify 34 E.g., Shanghai People's Broadcasting Station, the procedure in the jurisdictional sphere for the Ma) 14, 1968. convenience of the masses." Ruge. An lntrniew with ,. Inner Mongolia People's Broadcasting Station. Chi>.,st Ltgal Off~eia/s, 1975 CHINA Q. 120 (~o. 61). April27. 1968; Kiangsi People's Broadcasting Station. " For a comprehensive treatment of China's It-gal May 14, 1968; Honan People's Broadcasting Station. development in the post-1966 period. see a forthcom­ ""May 12, 1968. ing study by Sh.w-chuan Leng and Hungdah Chiu. 6 CONTEMPORARY AsiAN STUDIES SERIES

19i5!2 On the one hand. the Constitution con­ ing the pre,·ailing trend trmard politicization t<~ins provisions weighted towanl discipline and and infurmalization of the legal order, Article orderly economic de,·elopment." On the other, 25 of the 1975 Constitution calb for the subjec­ it includes statements reflecting unequivocally tion of the people's court' to the control of :\lao Tse-tung"s mass politics and .mti-bureau­ local political leadership nhe rewJ!utionan cratism." committees) at corresponding le,·els and the As far as law is concerned, the new Constitu­ application of the mass line as the operational tion clearlv confirms the political real it~ of the principle for procuratorial and trial work!" It consistent decline of the jural model in China further legitimizes the dominant position of since 1957. There is a drastic reduction in the the police in law enforcement b' pro,·iding number of the provisions concerning citizens· that "the functiom and powero; of procut·atorial fundamental rights, from 19 articles (Articles organs are exercised bv the organs of public 85-103) in the 1954 Constitution to 4 articles securitv at various levels." (Articles 26-29) in the 1975 Constitution!• Even Despite the apparent.recision of many provi­ more dramatic is the reduction in the coverage sions of the 1954 Organic Law of the People's of the judicial system, from 12 articles (Articles Courts by the currem Constitution, the four­ 73-84) in the old Constitution to one article level court structur·e and the t\\·o-trial system (Article 25) in the present Constitution. Elimi­ continue to function!• The role of the courts, nated are provisions containing such "bour­ nevertheless, is quite modest. :\ great many geois" concepts of due process as equality be­ cases of anti-social behavior are handled by fore the law, public trials, right to defense, public security organs ..\n e,·en greater num­ and protection against arbitrary arrest. .. Also ber of conflicts are resolved by basic-level ad­ dropped was the controversial provision pro­ ministrative units and mass organizations. The viding for judicial independence." U nderscor- courts appear to be involved only in serious criminal cases and divorce litigations. "The text of the 1975 Constitution can be found As the extrajudicial process of law enforce­ in DOCUMENTS OF THE ftRST SESSION OF THE fOURTH ment and dispute resolution now receives more NATtON.•L PEoPLE's CoNGRESS oF THE PEOPLE's RE­ PUBLIC oF CHINA, supra note 3, at 5-29. For a detailed emphasis than before the Cultural Revolution, analysis of the Constitution, see Lindsay, supra note it is important to idemify the major participants 27; TAO-TAl HSIA AND K. HAl!N, THE 1975 REVISED in the process. The basic level of gow·rnment CONSTITUTION oF THE PEOPLE's REPUBLIC oF CHINA (1975). 48 The first paragraph of Article 25 srates "The 43 E.g., Articles 7, 8, 9, and 10 on the economy people's courts are responsible and accountable to and the last part of Article 13 referring to "both the people's congress and their permanent organs at centralism and democracy, both discipline and free­ the corresponding levels. The Presidents of the peo­ dom, both unity of will and personal ease of mind ple's courts are appointed and subject to removal by and liveliness." the permanent organs of the people's congTess at the .. E.g., Article II stressing proletarian politics, the corresponding levels." According to Article 22. the mass line, and the principle of efficient and simple permanent organs of the people's congTesses at local administration; Article 13 permitting the masses levels are the local revolutionan committees which "speaking out freely, airing views fully, holding great serve as the local government. ·The control of the debates and writing big-character posters." It was Party over the state apparatus and the PLA are reported that the inclusion of the freedom to strike explicitly stated in Articles 2, 15, 16 and 117 of the in Article 28 was done at Mao Tse-tung's personal Constitution. For a discussion of the supremacy of insistence. Chang Chun-chiao,supra note 3, at 39-40. the CCP, see Chang, A Comparative Stud) of the /954 "Text of the 1954 Constitution is in CossTITUTIOs and 1975 State Constitutions of Communi>t China, in OF THE PEOPLE's REPUBLIC OF CHtSA, supra note 14. Lindsay. supra note 27, at 52-54; T.•O-TAt HstA & K. '"E.g., Articles 76 and 85 of the 1954 Constitution. HAUS,,upra note 42, at36-39. Article 89 of the 1954 Constitution that stipulated ' 9 The four levels are the Supreme People's Court, · "no citizen may be arrested except by decision of a high courts, intermediate courts and basic courts. people's court or with the sanction of a people's l!nder the two-trial system a judgment of the court procuratorate" i' now replaced by Article 28 of the of first instance can be appealed once to the court ol 1975 Constitution that provides "no citizen may be the next higher level. The continuing operation of arrested except by decision of a people's court or this sntem is confirmed by Chine•e Spokesmen. Su with the sanction of a public security organ." This Chint..;o.61). CoMPETITIONS oF Two MoDELs OF LAw 7

is the street reH>Iutionarv commiuee in an zations .tre the prim;tn ex11 a-Judie t.ol ln\lllu­ urban area and the commune re,·oluuonar~ Jion\ seuling ci\tl dt,pute' and dispming of comminee in the countnside. Belm, the 'tree! minor crimrnalca,e;. When conflict ari""· the revolurionarv commiuce are quasi-official re,i­ informal resolution pron'" is conducted b' dem' coiJrmin.:n, "hich .rre in turn suMi,·irl .. d cadres and acti\1'1~ in 1hme basic-It-vel unil' into residents groups; below the commune rev­ along with friends, relati\e'>. neighbors, and olutionarv commiuee are quasi-official produc­ co-workers of the parties lll\olved. From the tion brigade commiuees, which are in turn outset, it mmt be determmed whether am subdivided into production team commiuees.00 given situation mvolvcs "antagonistic" or "non­ Parallel to the administrati,·e strunure, both antagonistic" contradicitom, as prescribed b~ the Communist Panv and the public security Mao.52 For instance, mediation and persuasion apparatus are organized in hierarchies extend­ are employed by individuals or a small group ing down to the lowest level. In addition, secu­ to resolve disputes between neighbors or rity protection commiuees, mediating commit­ spouses. Struggle, criticism, and self-criticism tees, the Young Communist League, the before a group are used to deal with minor Women's Association, and other activist net­ cases of misbehavior. such as gambling and works are formed in residential, production peuy theft. Fot· more serious wrongdoings or and occupational units." repeat offenders. "administrative" sanctions, Under the overall direction of the Party, includmg detention and supenised or compul­ these official, quasi-official. and mass organi- sory labor, are imposed by public security or­ .. Except for the sub-ritution of the revolutionarv gans."" committee as the local government (Article 22 of the The activities of extra-judicial units at the Constitution), the basic-level admimstrative structure "grass roots" level take care of most of the civil is essentiall) the same as that before the Cultural disputes and minor criminal offenses. Only Revolution. See Regulation.< Got•fTtling tfu. Organiwtron of Street Admmutrative Offices and Citv Rrsidmts Commtt­ after the "exhau\tion of lm:al remedies" are a tus, I CHt:NG-HUA JEN-MtN KUO-Ho-Kuo FA-KUE! few civil disputes, usually divorce cases, re­ HUl-PtEU (Collection of Laws and Regulations of the ferred to the courts, where mediation efforts People's Republic of China) I71-75 (1955) [hereinaf­ are again undertaken, before there will be an ter cited as F.K.H.P.]; A. BARNETT. supra note 22, at 339-62; Cohen, Chine" Lau•: At tfu. Cro>." Articles 2 and 18 in the Peopi£'.• Republzc of Cluna, I963-74, in CHINA: :\ of Chm-an pao-wez U'fi-VUllli hw kung-t.w h.li-tlf r 'hih­ REASSESSMENT oF rHE EcoNOMY 366-410 (I 975). hsing Ll'ao-an) [Detailed Works for the Security Pro­ " For charts outlining the interrelationship of tection Committee (experimental draft)]. issued on these organizations and Party and state apparatuse.<; November 25, I972 by the Public Securitv Ministrv of before the Cultural Revolution, see J. CoHEN, .Taiwan. J33I. Whatever disruptions occurred during the Cul­ 52 In a speech given earh in I957, On tfu. Correct tural Re\'olution, these activist networks are now Handling of Contradirtions A mung the PeoplP, Mao dif­ back in operation with greater vigor. For instance, ferentiates between ''contradictions between our­ the mediation committees are reported to have been selves and the enemy" ~tnd "tontradictions among active in settling ci\il disputes, with a network set up the people." English text of his speech can be found at the producuon hrigade ievd io. the countryside in Suppi£mmt to Peopl/.< Chma 3-27 (:-\o. I3, I957). and the street committee level in urhan areas. Stew­ The implications of this particular speech will be art, Divorces m Cluna Dtcitkd bv Pern, :-LY. Times analyzed later in this article. !'l;ov. II, I973, at 5, col. I. Th~ security protection " The description of the mformal proces- of '"" committees, originally organized in I952 as exten­ enforcement and dispute resolution is based on sions of the police, have also been revitalized since emigre accounts and reports of visitors. For the the Cultural Revolution. A I972 document of the latter, see Cohen,

adjudication." Serious crimes, i.e .. rape, rob­ Throughout the judicial process, the courts berv, corruption, embezzlement, and "counter­ work closell· with the public security apparatus.58 'revolutionarv activities·· are also brought to the :\II important decisions, of course, ha1·e to be court• for disposition. cleared with the re,·olutionary committees and As pro1·ided in :\ rtide 25 of the Constitution. Pa111 committees of corresponding levels-'9 the courts folio~>· :\lao's mass line in approach­ HoweYer, the judiciary does provide these de­ ing judicial 1vork. One method for implement­ cisions "·ith a stamp of legitima(\· and continues ing this approach is to bring the courts to the to pla1 a limited but useful role in the PRC's people by holding trials in a factory, store. or entire law enforcement framework. commune.55 Another is for judicial worker·s to go to the masses to make the investigation and CLASS :'I.'ATt;RE Of PEOPLE's jUSTICE to seek out the views of the people. Still another The cla-;s nature of law is an essential com­ is to disseminate materials on cases of political ponenr of Communist jurisprudence, as evi­ or educational value among the public for denced by statements of Marx, Lenin and oth­ consideration in small group discussions. Opin­ ers.60 In the PRC, Mao Tse-tung also ex­ ions and suggestions resulting from such dis­ pounded the concept of class justice by saying, cussions are supposed to be consulted by the "Such state appar·aws as the army. the police courts in reaching final judgmems.56 Finally, and the courts are instruments with which one mass trials may be held for cases of special class oppresses another. As far as the hostile political significance, particularly those involv­ classes are concerned these are instruments of ing class enemies and counterrevolutionaries.•• judgment-pronouncing rallies during and shortly " Visitors reports and emigre accounts all confirm after the Cultural Revolution. For mort> recent re­ this practice. See, e.g., Pestana, Law in 1M People's ports on the practice of mass trials. see T/o, Provincial Republic of China, I OCCASIONAL REPORT- ASIAN Sance in China, China :>;ews Summary, May 12, 1976 STUDIES, ARIZONA STATE UNIVERSITY 2 (1975); Lub­ (:'\o. 613)(Hong Kong), at I. man, A Divorce Triol-Peking Style, Wall St. J., June •• According to one source, members of the court 5, 1973, at 22, col. 4. According to an informant, and nf the public security bureau work together in a most of the civil disputes handled by the intermediate legal subcommittee appointed by the revolutionary court of !chang in Hupei have been divorce cases, committeee. Cheng Huan, Law in China, 4 FAR EAST­ sometimes as high as two hundred a month. ERN EcoN. REv. 14 (1972). More often, it appears .. Pestana, supra note 54 at 2-3; Lamb, An /ntnmew that judicial and police personnel coordinate their with Chinese Legal Offzcia/s, 1976 CHINA Q. 324 (No. 66). work informallv through close contacts. Visitors and 06 Ruge, supra note 49, at 121-22. Interviews with emigres have seen the signs of the court and the former cadres and residents in China indicate that in public security organ hung in the same building. importa!1t cases of a political nature the public is ~v American visiting lawyer-, were surprised to usu:~lly given hrief. conclusory materials refering to learn of this. Su Crockett, 1upra note 53. at 245. In the offe11ses as "viciously attacking socialism," "arous­ posters reportedly appearing in Canton at the end of ing the great anger of the masses," etc. As a rule, the 1974. demobilized veterans of Kwangtung urged the people follow the guidance of these documents and Provincial Part\· Committee and the Provincial party leaders in making suggestions about punish­ Higher People's Court to handle promptly the com­ ment at small group discussions. In less important plaint against the illegal beating of >ome veterans by cases, however, there appears to be more leeway for personnel of public security and workers provost the people 10 express their views. One informant corps on ~ovember 24, 1974. According to the pos­ said that he was once saved from imprisonment for ters. when representatives of the veterans went to an alleged attempt to escape to Hong Kong by the the Higher Court to inquire about the lack of re­ strong defense of his innocence received from his sponse to their written complaint, they were told co-workers in an organization. A recent report by that the complaint had been sent up to the Pro1·incial foreign travellers in Sian described an unusual poster Party Committee for disposition since the court could campaign conducted by "the masses" concerning an not independently handle the case without the "Tit­ alleged case of rape. Apparently with official ap­ ten guidance of the Party Committee. MING PAo proval, the posters protesred to the Provincial Revo­ MONTHLY 98-99 (:'\o. 112, 19i5). lutionar> Committee of Shensi. the unjust condem­ 60 AccordinJ:: to ~larx and Engels, legal institutions nation of a young worker, named \\tang, to twenty are pan" of the -;uperstructure on an economic base; years imprisonment for the "rape." Among other they are tools of class rule, designed to promote the complaints, the posters said that the judicial authori­ interest of the ruling class. Lenin and .\.Y. Vi 'Masse~' Hit Author­ the counterrevolutionaries. J. H.,GARD, COMMUNIS rs llie< Ovn Rapr Calf, The Washington Post, Aug. 16, AND THEIR L.w• 69-i() (1969): H. KEL~EN. THE CoM­ 1976, at AS, col. 2. 'IUNIST THEORY OF LAW I, 31, 51, 1~8 (1955); LEN<:, •• There were lrequent report' on mas< uials and ,upra note 6. at xi-xii. CLASS NATURE OF PEOPLE's JUSTICE 9

oppression. Thev are violent and certainly not Mao's tht>ort'tical formulation 011 umtrasocialist law in Lhina is "a guideline for Ia\\ enforcement in China diHI i' sharp weapon for carrying out class struggle in incorporated mto the preamble of the 19i5 tht> hands of the broad masses of laboring Constitution. In order to correuh di,ting-ui'h people lt>d by the proletariat," used primarily antagonisti( from non-antagonistic contradic­ to suppress the enemy, protect the revolution­ tions, it is imperative for JUdicial and puhlil ary order, and insure the success of socialism .62 securit' per 'onnel to use a class stanrl point to Using the class line approach, Mao provided determine the nature of a problem•• From a a theoretical framework for differentiating and class viewpoint, the so-called "fi,e black ele­ resolving social conflicts with his famous 195i ment'" (landlords. rich peasants, coumetre\o­ speech "On the Correct Handling of Contradic­ lutionaries, rightists, and other bad elements) tions Among the People." In the speech, he are considered "the enemy."66 drew a basic distinction between two types of All persons labelled as "five black elements" contradictions: "Contradictions between our­ are treated as political outcasts and potentidl selves and the enemy" (antagonistic contradic­ criminals. "They are held up," says one ob­ tions) and "contradictions among the pe"ple" server, "as 'negative examples' and as living (non-antagonistic contradictions). Mao defined symbols of what happens to enemies of the in broad terms "the people" as "the classes, regime."67 When crimes are committed, such strata, and social groups which appro\e, sup­ persons mually recieve harsher sannions for port and work for the cause of socialist con­ the same offense than those among "the peo­ struction" and "the enemy" as "the social forces ple."68 This is particularly true during a politi- and groups which resist the socialist revolution, and are hostile and try to wreck socialist con­ policy of benevolence and persuasion toward the struction _,.63 people but a violent and oppres.ive poliq toward As the two contradictions are fundamentally the reactiOitaries and counterrevolutionaries. MAo TsE-TUNG. Or< PEOPLE's DEMocRATIC DICTATORSHIP. different, the methods for solving them also ;upra note 61, at 16-18. differ. According to Mao, conflicts among the .. Repart on tht Work of tht Supreme People's Court b) people are to be dealt with by the "method of iL1 Pmident Hsuh ChU~gui•h Strictly the Two Typt!S of Contradtctiom and thP Ttw the "method of dictatorship." In settling "ques­ Diffmml Mtthod.. of Dealing wtth Thtm rn Pohttml and tions between right and wrong among the peo­ Legal Work, C.F.Y.C. 28 (No.2, 1963). ple," reliance should be placed on education .. According to Mao Tse-tung, the term "the peo­ and persuasion. In dealing with "reactionaries, ple" has different meanings in different countries and in different historical periods in each country. exploiters, counterrevolutionaries, landlords, In 1957 "the people" he referred to included the bureaucrats, capitalists, robbers, swindlers, workers, peasants, peuy bourgeoisie, and national murderers, arsonists, hooligans, and other bourgeoisie. Mao, On tht Corrtct Hand/rag of Contradir­ scoundrels who seriously disrupt social order," lioru, 1upra note 52, at 3-4. However, the bourgeoisie measures of dictatorship and severe sanctions has since been dropped from "the people." The 1975 constitution only mentions the workers, peasants, must be employed ... and non-agricultural individual laborers in the Chinese hody politic (Articles I and 5). Article 14 nl •• ~1.-o TS>-Tl!NG. ON PEOPLE's DEMOcRATic Dic­ the Constitution also deprives the political rights nf TATORSHIP 17 (1951). rhe following enemy groups: "the landlords. rich 12 Chou Hsiu-min. Law i.s a Sharp WMpon of Cla..u peasants, reactionan· capitalists. and other bart de­ Struggf.,, J .M.j .P .. Oct. 28, 1964, at 2. ments." 63 ~lao Tse-tung. On tht Corrtcl Handling of <:unlra­ ·~ A. BARNETt. supra note 22, at 404. dutzons among lht Ptoplt, supra, note 52, at 4. For 68 In a violent dispute involving forty-odd men in Mao's earlier writings on related subjects, see Ana/ysi.• the outskirts of Canton in late 1955. the public of tht C/a.1.1t1 m Chint.lf SOIG .. counterrevolutionary" hlstory for prosecution. He 13-19,311-16 (1967). was arrested, convicted, and sentenced to five years "' Mao. On tht CriTTtef Handling of Contradictwm, of reform through labor. J. CoHEN. supra note 6. at 1upra. note 52. at 4-6. This is e!ISentiall~· consistent 511-12. Similar cases of this nature have been re­ with his earlier thesis about "democracy for the ported by re<:ent emigres. In one adulten· case nuur­ people and dictatorship for the reactionaries." In an ring in Amo~ in 1971. the man was a factoq worker important essa' wriuen in 1949, Mao advocated a and the woman's father was a former K:\IT official. 10 CONTEMPORARY ASIAN STUDIES SERIES

cal campaign when members of the "black the social ongm of the offender. his personal elements" often pro\'ide con\'eniem targets for background. class stand, and political altitude class hostility and abuse.•• On the other hand, and motivation. :'.iembers of small discussion persons of good class background are reponed groups in\'ariably follow the tone of the distrib­ to ha,·e received leniem treatment e\'en in uted documents and use 1he class line as the serious cases such as rape. 70 criterion to suggest punishment. If in doubt, The strong class character of Chinese crimi­ they ah,·ays find it prudent to take the position nal law is clearly stated in an official textbook. of the left rather than the right.72 "The criminal law of our country primarily Political considerations are not only applied deals blows to the coumerre\'olutionaries, to to the sanctioning process in the PRC. E\'en in the criminals of homicide, arson, burglary. dealing "·ith a civil dispute, a firm class ,·iew­ fraud, rape, and other offenses seriously ob· point is also required'' The concept of equality structing social order and socialist construction. before the law for all persons certainly has no It must be understood that the poim of our place in people's justice. Those few Chinese criminal law is chiefly directed toward the ene­ leaders in fa\'or of such a bourgeois concept mies of socialism ."71 Consequently, when case ha\'e been severely attacked by the Maoists. materials are disseminated among the public for discussion, they outline, among other Class and class 'truggle is a great revolutionar} things, the nature and gravity of the offense, magic weapon of Marxism-Leninism and the thought of Mao Tse-tung ... However, the Because of different class backgrounds, he was sen­ handful of top capitalist roaders within the Part\· tenced to one year of imprisonment while she rc· vainlv auempted to wipe out fundamentally the ceived a two-year prison term. dictatorship of the proletariat hy means of law .. " I! is during political campaigns that many per­ Counterrevolutionary revisionist p·eng Chen sons are either classified for the first time or "capped" even openly jumped forth to set the tune saying: again as members of the "five black elements ... It is "All citizens of ours can become equal and must also in political campaigns that harsh sanctions be equal before the law ... He advocated "equal against class enemies are used and publicized to serve tceatment" and stated that "there is no need to the purpose of "killing chickens to scare monkeys." adopt a class viewpoint in addition to law." He The Suppression of Counterrevolutionaries ~fove­ ment of the 1960's and the Cultural Revolution of rejected the class character of law, thus over· the 1960's were marked with mass trials and re,•olu• throwing the proletarian dictatorship. In this tionary excesses. Even in the milder Anti-Lin Piao \\ay, the public security organs, procur~horates, and Anti-Confucius Campaign of the early 1970's. law courts and armed forces became ordinary there were occassional reports of public executions organs instead of instruments of the dictator· connected with this drive. See, e.g., 30 Reported Exe­ ship. The question of who should be defended cuted in China; Deaths Linked to Anti-Corifucius Drive, or suppressed was obliterated at one stroke, The Baltimore Sun, April 18, 1974, at A6. and with no diyiding line drawn between the 10 Two cases based on interviews may be cited here as illustrations. In a 1958 case that occurred in a enemy and ourselves. how could revolution be village near Canton, a militiaman unsuccessfully at· carried out? If such peaceful evolution were tempted to rape a landlord's daughter and beat the permitted to go on. our proletarian regime father up rather badly. The public security station would not take long to end in capitalist restora· chief did not want to punish a "good person" such as tion.74 the militiaman for misconduct toward a "bad person" surh as a landlord. Consequently, the militiaman was sent to rehabilitation through labor instead of being 72 Information supplied by recent emigres. Their sentenced to five to seven years in prison. J. CoHEN. description of standards and contents of distributed supra note 6. at 26tHi7. In a 1961 case occurring in case materials is the format confirmed by a Chinese Enp'ing County. Kwangtung. a militiaman raped a document in the author·s possession, Strl!ngthfn "'ar former landlord's wife at gun point and claimed that Prepara/1011, Strmgthm Struggle Agairutthe Enemy, and she had seduced him. E,·en after the true facts were Srrmgthm the Dictatonhip of the Proletariat, issued by established. the case "as categorized as a "contradic­ the People's Security Croup of the Yunnan Provincial tion within the people" and no serious punishment Remlutionar) Committee, on Januar' 21, 19i0 (13 was meted out to the wrongdoer. Shinichino ..~ pages). Report of the Production Team: A Penonal lntnt••ro•, II 13 LENG, supra note 6, at 174. For a discussion of IssuES AND STUDIES 88-89 (!\'o. 3. 1975). politicization of dispute resolution, see Lubman . .m­ 71 CESTRAL POLJTICAL·]UDICIAL CADRES' SCHOOL. pra note 8. at 1339-46. LECTURES OS THE GENERAL PRISCIPLES OF CRIMINAL "ComplEtely Sma.1h thr Frodal, (;apllalut and Rt'VI· LAW IS THE PEOPLi.'S REPUBLIC OF CHISA (1957). 'iomsl Legal Syupra note 2, at 23-24. C mil hi' translated inj.P.R.S. 18 (!\'o. 1331. 1962). ouster during the Cultural Revolution, P'eng Chen LAW As AN INSTRUMENT OF SOCIAL ENGINEERING 11

It should be noted. howe\er. that the tla" of them h;.l\e t'\t'll been absorbed mto the line " not a rigid but a flexible tool of the ranb of cadres to o;ene as "positive samples''.'" Party. According to :I. lao Tse-tung, a person\ cla;s status is not onlv determined b' his sonal LAW .• s A:-. 1:-.STRl'\IE:-.T OF oriKin and cia" batkground hut, more impor­ Socut Esc;IsEERIS<. taml~. b' his political attitudes and heha,ior.75 Two concepts have conditioned the Chinese Consequent!\, a serious de.-iant act can c.Iuse perception ol the role ol law m their revolu­ the lhange ol an mdividual's label from ,t nonaq "heme. One i' the \farxist-Lenist the­ member of the people to the categon of the on that considers law as a political tool to enemv. B\ the same token. it is at least techni­ implement Part\ polic,· •• The other is Mao's cal!\ feasible for a member of the "fiye (black) idea of "uninterrupted re\'olution" that called elements" to be elevated to the categor,· of the for a continuous effort to mold and remold people through evidence of good conduct and human nature."' These two conceptions have ideological transformation. combined to provide the Chinese elites with a In fact, the Communist authorities in China theoretical framework to view law as an instru­ have occasionally taken a relatively "soft" stand ment of social engineering, to be used for the toward the political outcasts and their relatives transformation of Chinese sociel\ and its mem­ by giving them some hope of changing their bers in accordance with the revolutionary ide­ class status. This tactic is in line with ~lao's ology. Either in a formal or informal style, law tealhing of "winning over the majority and is seen as an important agent of political social­ opposinK the minoritY."'" At times, law en­ ization and mobilization to inl ukatc the people forcement cadres have publicized the following with the new soctalist morality. Consequently, policy line: there has been much stress in the PRC on the educational functions of the courts, popular Class background is a very important criterion but not the sole determmant for treatment; participation in rule enforcement, reformative emphasis must be placed on political perform­ aspects of penal policy, and flexibility rather ance. :\!embers of the "five (black) elements" than rigidity in the application of law_ Jre told to reform themselves and establish Despite the Chinese emphasis on the infor­ merits so they can be "uncapped" and have mality of law, a large body of substantive laws their class status changed 77 ,md regulations have been promulgated by the PRC.82 Many of them have been concerned Special appeal is often directed to the chil­ with the implementation of the Communist dren of the "five (black) elements," who are elites' policy of systemic transformation. For urged to dra" a sharp demarcation between instance, the Land Reform Law Dmly, Tse-tung's Thought) 419, 666 ( 1969). 4,072 laws and regulations were passed during tht' 11 Emtgre 3llOUHt' of the polu. ~ pursued in earlY first eight years of the PRC.J.M.J.P. Ott. 9. 1957. at 19i'3 b} the public security organ of Ch'amang, I. There are altogether 1,670 documents contained Kwangtung: PEOPLE's SEcl'RIT\ GROUP or THE Yt:­ in the two basic statutory collections published by the '"=" PRO\'JSCIAl REVOLCTIO~AIH' COMM .• P.o\0-Wt:I PRC: CHL'NG-YA,;G JES-MIS CHESG-Fl! FA-LI"G HLI­ Kl'!'.'L~1so ( HISL-Y.l~ (Experienn:· from sec.:urit\ PI£" (Collection of Laws and Denees of tht· Central work) 1-13 (19i'0). People's Government, 1952-55) (5 vols.) [hereinafter 10 /d . at 3-4. 13-15; also emigre reports of the cited as F.L.H.P.] and F.K.H.P .. >upra note 50 (1956- polin adopted In the Canton authorities m 1!173. 641 (13 vols.). 12 CoNTEMPORARY AsiAN STUDIES SERIES

tern' and to release the social energv of the to folio"· Chairman :\lao's instruction to protect people.83 A host of regulations and measures the great achievements of the Cultural Revolu­ were also adopted during the 1950's for eco­ tion, to strike against a handful of counter­ nomic modernization and industrialization, na­ re,·olutionan and other criminal elemems. and tionalization of enterprises, and mllectivization to comolidate the dictator,hip of the proletar­ of agriculture.•• In the meantime, a number of iat.•• The educational function of the judiciarv other acts were issued to suppress counterre­ is also realized through such mass line device;. volutionaries and to punish corruption and as bring"ing- the courts to the people and distrib­ other anti-social activities.•• During 1966-6i, uting ca~e materials for small group discus­ various resolutions and directives were adopted sions. According to one witness, following a to carry out Mao's Cultural Revolution, with trial helcl at a fanon concerning the stealing one principal aim being the socialization of the of goods lw a worker. the two hundred co­ thought and behavior of the people.86 workers present said that "they had been edu­ Many of these laws, regulations. and deci­ cated regarding the struggle against their cor­ sions have been implemented and publicized ruption hv bourgeois ideas, and raised their by nation-wide campaigns and movements, de­ understanding of the two lines and revision­ signed to arouse mass enthusiasm and eliminate ism."90 Likewise, in handling civil disputes, opposition .87 It is during such campaigns that mostlv divorce cases, the courts conduct prop­ mass trials and public judgment meetings have aganda and education among both the parties been used to dispense people's justice, which involved and the public at large. The overrid­ perform not only a deterrent function hut a ing objectives are to settle internal contradic­ propaganda-education function of heightening tions by mediation, to uphold law and disci­ the people's political awareness.•• For instance, pline. to strengthen the unity of the people. in two mass trials held in Shansi Province in and to promote the development of socialist 1970 involving 50,000 people, it was reported virtues.91 that the broad masses of the revolutionary Educational functions are generally per­ people had learned a valuable lesson and vowed formed by the societal model of Ia"· and by the entire political-legal socialization process. Dis­ 83 Text of the Marriage Law in I F.L.H.P. 32-36; cussed above was popular participation in the Agrarian Reform Law in id., at 43-49. For a compre­ hensive analysis of the Marriage Law, see M. MEIJER, extra-judicial activities of law enforcement and MARRIAGE LAw AND PoLICY IN THE CHINESE PEOPLE's dispute resolution at the "grass roots" level. In REPUBLIC (1971). addition, it should be noted that laws, policies, •• Relevant laws and regulations can be found in and other norms are usually communicated to the two statutory collections cited at supra, note 82. See also a special collection: Szu-YING KUNG-SHENC.­ and internalized by the people through the YEH Tl SHE-Hlll CHU-1 KAI-TSAO CHENC-TSE FA-LING media, schools, and study sessions of small HSUAN-PIEN (Selections of policies, laws, and regula­ groups organized on the basis of residence or tions concerning the socialist transformation of pri­ work."2 Subjects of study sessions vary from vately-owned industry and commerce) (1957) . .. E.g., the Act for Punishment of Counterrevolu­ tionaries (1951), the Provisional Act for Punishment 89 Shansi People's Broadcasting Station, Feb. I i, of Crimes That Endanger State Currency (1951), the 1970. Act for Punishment of Corruption ( 1952), and the 90 Lamb, .supra note 55. at 325. Security Administration Punishment Act (1957). 91 Report of HSieh Chuth-t>a. (outgoing President of 88 A useful collection of official documents on the the Supreme People's Court in 1964), J .:I.!.J .P. Jan. Cultural Revolution is UNION RESEARCH INSTITUTE. I, 1965, at I. A Chinese official has recently pointed CCP DocuMEsTs oF THE GREAT PROLETARIAN CuL­ out that di,·orce is not granted lightly and that TURAL REVOLJ.:TION, 1966-1967 (1968). disputes are generally resolved in a manner that 87 !'l;otably, the Agrarian Reform. Marriage Re­ takes more acwunt of the welfare of the state rather form. and Suppression of Counterrevolutionaries than that of the individual. who is expected to place campaigns as well as the Great Leap Forward and his social re,ponsibilities before personal considera­ ;he Cultural Revolution. for a discussion of the Lion~. Sle\\art, Dit'Orf(j w Chw.a Dendtd lw Peers, :'\. Y. PRC's use of campaign techniques, see Yu, Cam­ Times, ~o,·. II. 1973. at 5. col. I. Thi; observation paigns, Communicati

wee I.. to \\t'ek in accordance" 11h exiSting polit­ I he ronrept nf !,11, ,1, .111 m'trurnent of ical situations. The' m;l\ be \!au·, speeche> m eduration .tnd ideologiral indoctr tn;ttton I' al"' People\ Dml\\ editorial,. Cadres "ho 'ene a' manifested in the ernpha,is placed on thought group leaders are often guided bv Internal refm m b' PRC pen.tlmea,ures. PeJ..mg·, puliu dtrectives that fmus on specific issues of .1 of comhimng lenienn 11ith pumshment and ~,·en moment, [f. g., CompliPd .\latmal of the reform through labor 11ith education has it' .\fn.1' Rallze~ {or Protectmg thP Rozlu·m Secunt\ origin in the vean of Ktang't and Yenan"8 it' n11djor Cnllcwng, Strug!(lzng .-\gauot and Dz,Po•• r hcurettL.d ba,is .tgam has been prov·ided fJ\ ingofthe Crimznal Elemrnf., (issued by the Bureau the writings of \lao Tse-tung. In a 1934 report of Public Securitv of Yunnan Pro•·ince. the 10 the Second So\iet Congress, \lao stre'Sed Higher People\ Court of Yunnan Provinn·, tht> educational functions of the labor reform and the Revolutionarv Committee of Kunming institutions in the Kiangsi Sovier.99 Writing On Railway Bureau, April, 19i5),93 Study J1aterial People'., Democratic Dictatonhzp in 1949, he prom­ for Public Stcurity Work {Supplement) {issued b1 ised that members of reactionan cla"e' who the Bureau of Public Security of Yunnan Pro\­ gave up counterrevolutionarv acti,·ities \\oulcl ince, Feb., 19i4),94 and Detailed Regulations for he granted the opportunity to \\ork and to Work of the Security Protntion Committee {issued relorm themselves through labor so as to be­ 100 by the Public Security Ministry, :\m ., 19i2)."'] come new men In .1 report on "the ten Statutes are interpreted to the public by cadres majm relationships" in 1956, he emphasized according to the policy demands of the day. the reform through labor rather than execution The Marriage Lav,· of 1950, lor mstam e, re­ of counterrevolutionaries, in ordet to Lorn en mains effective today and is frequently cited in "worthless things into useful ones" and to avoid divorce judgments."" Yet its provision on the making "irretrievable mistakes."101 Discussing marrialo(eable age {20 years of age for the man how to deal with the enemv in his 195i speech and 18 for the woman) has been modified by on contradictions, ~lao suggested that the the Party policy favoring late marriage. Article method of dictatorship be usee! to compel them 4 of the Marriage Law notwithstanding, mar­ to obev the law of the people's government riage is now generall} discouraged for men and to engage in labor and. through labor, below thirty and for women below twenty-five transform themselves into ne" men w 2 vears of age ."7 There is a hierarchv of sanctions in the PRC that puts offenders through the reform proc­ EDUCA nos "' CoMMVNIST CHIS A {1970); C. RIDLEY, ess. For lesser offenses, individuals may he P. GoDwts ASD D. DEous, THl ~IAKISG oF A MoDEL plared under "control" or sentenced to per­ CntZE" IN CoMMU,.IST CHINA (1971); F.T.C. Yv, forming "supervised labor" at the place of MASS PERSL'ASION IN COMMV,.IST CHINA {1964). residence or work. For more serious crime,, 13 Chinese text and its English translation are in II ISSUES AND STUDIES 77-84 (No.3, 1975). offenders mav be sent to camps to undergo •• A copy of the document is in the author's posses­ rehabilitation through labor or reform through liion . labor. The last two sanctions are governed b~ .. Su note 51 supra. the following two major statutes: 1954 Act for 96 In a judgment rendered on !\larch 22, 1973 [Fa­ tzu (73) :o-;o. I], the People's Court ofSwatow, Kwang­ Reform Through Labor and 1957 Decision of tung, stated that it had followed the spirit of Articles the State Council on Education and Rehabilita­ 8, 17 and 20 of the Marriage Law to decide on the tion Through Lahor.103 granting of dimrce, property arrangements and cus­ tody of the children. In another divorce judgment 00 LENG, supra note 6, at 9, 13; P. GRIFFIS, ,wpra rendered on May 23, 1974 [Mm-tzu (74) :o-;o. 21], the note II, at 128-29. People's Court of Paoan, Kwangtung, also cited the 10 V. YAKKO,.TOFr, THE CHtSESE Sovn.rs 262 proYision of Article I i of the ~larriage Law to sup­ (1934). port its decision. Copies of both judgments are in 100 !\lAo Tsr-n.:,.G, 1upra note 61, at 18. the possession of the author. 101 He also said that his poliq would be b~nefin•l 97 !\leiJer, supra note 82, at 80; .\'ru• Trmd for Late to both China's domestic affatrs and internation•l .ltamage. J.M.j.P. June 12. 19i3, at 3; Why Hm•e Wr influence. ~f.,.o TsE-TC.'\C. SSE-HSIASC. WA:'\0-\l"l, ~u­ Delayed Our .Wamagr1. Ta-kung pan (The Impartial), pra note 76, at 75. March 9, 1973, at 8 Reports from infnrmants incli­ 102 Mao, On thr Co.,-urt Hnndlmg oj Cmztrarlutwn1, cate, however, that the late marriage policy has been 1upra note 52, at 8. 10 enforced les~ vigorously in rhe rural areas than in ' Text of the Ani' in 5 F.L.H .P. 34-44 ancl text the citie~. of the Dension is in6 F.K.H.P. ~43-44. Rehabilitation 14 CONTEMPORARY AsiAN STUDIES SERIES

The principal aim of the corrective measures, used to influence individual behavior. The according to Chinese spokesmen, is reeduca­ guiding principle is always "lenienc~ to those tion rather than punishment. Physical labor is who confess (cooperate) and se,·erity to those an important part of the reform process, be-~ who resist."'"' cause it eliminates 1he criminal's reactionarv It is difficult to make a conclusive appraisal ideology of the exploiting class and enables­ of Chinese corrective institutions. On the one him to learn productive skills to meet the needs hand, there have been enthusiastic claims of 10 of the society . ' Devices for ideological reform the humanitarian concern for the successful include self-criticism and criticism in group transformation of the criminals. 108 On the other meetings, preparation of lengthy written hand, charges of cruelty and exploitation have confessions, and exposure and denunciation of been made against the Chinese svstem of "force others' wrongdoings. Political education is also labor."'"" One thing, however, seems clear: conducted in study sessions wherebv the of­ under \lao's guidance the PRC has developed fenders learn about Marxism-Leninism. the elaborate thought reform techniques applicable thought of Mao Tse-tung, state laws, Party to labor camps as well as so~iety at large in an policies, and current affairs.'05 In the end, effort to transform human nature and to secure each individual is evaluated on the basis of his the general acceptance of goals and norms of work performance. sincerity in repentance, dil­ the socialist system.""

igence in study, and responsiveness to re­ IMPLICATIOSS OF THE ASTI-CONFt.:CIAN ANO form.'06 A system of rewards and sanctions is PRO-LEGALIST CAMPAIGN The campaign to denounce Confucianism through labor is an "administrative" sanction while and praise Legalism began in 19i2, intensifierl reform through labor (for all imprisonment) is a during 1973-74, and faded away inconclusively "criminal" and harsher sanction. For details as well as some translated statutes, see CoHEN. supra note 6, and denounce bad elements and evil deeds. PAO-WEI chs. IV and XI. KUNG-TSO CHING-YEN,supra note 77, at 12-15. 104 Statements by Chinese jurists to recent Western 107 Ruge, supra note 49, at 122. In the notices visitors can be found in Ruge, supra note 49. at 122 issued by the Chinese People's Liberation Army ~ili­ and in R. Brown, Law in Present Day China 12-13 tary Control Section of the Public Security Organs of (unpublished manuscript, 1975). Su also ~!eng Chao­ Meng-lien County in Yunnan Province (Aug. 8, Liang, The Basic Situation in Reform Through Labor 1972), and by the Intermediate People's Court of Work itt the Last Nine Years, C.F.Y.C. 66 (~o. 5, 1958). Harbin City of the Heilungkiang Province (:'llov. 17, A recent study by an American scholar indicates that 1973), this principle was cited as grounds for sentenc­ the primary activity in corrective labor camps is labor ing the criminals. See Hungdah Chiu, supra note 27 in terms of time. Whyte, Corrective Labor Camps in at 110, 114. China, 13 ASIAN SURVEY 253-69 (1973). Although 108 The Chinese have often cited the successful beyond the scope of this article, one should not reform of Pu Yi, the last ~lanchu emperor, as an overlook the economic contribution of the compul­ example. Pestana, supra note 54, at 4-5; R. Brown, sory labor systems to the construction of China's .1upra note 104, at 13. In Dec., 1959 the Supreme public works and development projects. People's Court granted amnesty to a group of KMT '" Meng Chao-liang, supra note 104, at 67-68; "war criminals," who reportedly were moved by the Whyte, supra note 104, at 260-61. Su also accounts in humanitarianism of the new societ,· and called the W. ALLYN AND A. RICKETT, PRISONERs or L!BERA­ Party and the government as their ,;reborn parents." nos (1957); BAD Ruo-wAsGUean Pasqualini) & R. Ku Fang-p'ing, The Great Victory of the Poltcy of Reform. CHELMINSKI, PRISONER or M.•o (1973); M. HARBERT, ing Criminals, C.F.Y.C. 36-37 (:o-:o. 6, 1959). A similar CAPTIVITY (1973); LAI YING, THE THIRTY-SIXTH WAY theme was reported when another group of KMT (1969); R. LIFTON, THOUGHT REFORM AND THE PsY­ "war criminals" was released in 1975. N.C.N.A. CHOLOGY Of TOTALISM (1961). March 19, 1!175. See also E. Ssow, THE OTHER SIDE 106 See, for example, Articles 68 and 69 of the 1954 Of THE RIVER 47-48 (1962). Act for Reform through Labor. In a document issued 109 Su, t.g., CoMMISSIO!' lsTER!'.:ATIOS.-'L CouTRE in 1970 by the People's Security Group of the Yunnan LE RiGIME CoNCESTRATIONAIRE. WHITE BooK os Provincial Revolutionary Committee, the following FoRCED LABOR .-\!'· had actively participated 11° For an interesting discussion of the mechanism in productive labor to reform themselves; (3) of social control in the PRC, see Vogel, Voluntarism Whether they had faithfully obeyed state laws and and Social Co11trol, in SoviET Mm CHINESE CoMMVN­ regulations and accepted the supervision of the mass; ISM: SIMILARITIES AND DiffERENCES 168-84 (D. and (4) Whether they had been courageous to expose Treadgold ed. 19tii). IMPLICATIONS: ANTI-CONFUCIAN AND PRO-LEGALIST 15

in early 1975. 111 Recent re,elations have con­ One intriguing a'pect of the camp;Iign "·" firmed the view previously held by analysts its pro-Legalist position. In order to aS'<'" the that the campaign was not a mere academi( possible implications for the role of law in debate but a manifestation of factional and contemporan Chin..t, we shall examine bnt'fh policy contlicts \\ithin the Pan' leader,hip.'" what areas of Legali'm and "h1eh l.eg,IIi't The "radicals" initially launched the anti-Con­ figures received special attention in tht' cam­ fucian campaign in an implicit \et unmistakable paign.114 attack against Chou En-lai and his bureaucr.tti< In contrast to the "reactioti..tr}" feature' of associates for their retreat from the Cultural Confucianism, Chinese writers in the campaign Revolution and the rehabilitation of mam praised Legalism because of its stanrl for prog­ purged officials, but the "moderate'' subse­ ress and reform, for law and order, for eco­ quently succeeded in transforming the target nomic and scientific development, and for uni­ of the campaign by linking ami-Confucianism fication and centralization .115 Thus, Shang Yang 11 with the movement against Lin Piao. ' and Han Fei of the Legalist school were pic­ Throughout the campaign the two groups ma­ tured as representing the ideology of the newly nipulated historical figures and events to ad­ rising landlord class during the Spring and vance their respective policy lines. The "mod­ Autumn Period and the Warring States Period. erates" expounded the themes of stability. Their outlook was innovative and progressive, unity, institutionalization, and economic devel­ and the contention between them ;md the Con­ opment, while the "radicals" argued for strug­ fucians, "representative of the declining slave­ gle and reform and argued against "the tide" owning class," was said to reflect a struggle and the Confucian-type "retrogression and res­ between two lines of thought: "whether to toration." promote the development of the new system, or to try to preserve the old system; whether to 111 The "radicals" attacked Teng Hsiao-ping and serve the needs of the newly rising class in his associates for sabotaging the campaign. Su, t.g., accordance with historical development, or try Ting Liang, Why Did Trog Hsiao-pmg lgnurt the Strug­ to turn history back by following the examples g{, betwN•n Confucianism and Ltgalum, Hung-chi (Red Flag), (No. 10, 1976). at 64-65. of 'former sage-kings'; whether to advocate the 112 Two of the representative analytical articles on rule of 'law' suited 10 the development of the the campaign are Goldman. Clunr.'s Anti-Confucian new age, or stubbornly try to presene the so­ Campmgn, 1971-74, 1975 CHINA Q. 435 (No. 63) and called rule of 'rites' in the old sy,tem."116 Ac­ Chang. Tht Anti-Lm Piao and Confunw Campaign: Its .\.ftaning and Purpose, 14 ASIAN SURVEY 871-86 (1974). cording to this theme, the struggle continued For detailed work on the subject, see WANG HsuEH­ throughout Chinese history. In the Han dy­ WEN. LEGALISM AND ANTI-CONFUC.IANISM IN MAOISI nasty it was between the materialist theory of POLITICS (1975). knowledge represented by Wang Chung and 113 In the current campaign against the "gang of the idealist apriorism preached by Tung four" (Chiang Ching, Chang Chun-chiao, Yao Wen­ 17 yuan, and Wang Hung-wen), PRC spokesmen ac­ Chung-shu.' During the Sung dynasty, it was cused the "radical" leaders and their supporters between the reformists headed by Wang An­ (those writing in the names of Liang Hsiao, Lo Szu­ shih and the "diehard big landlord ruling ting, etc.) of undermining the campaign through the following distortions: they claimed the continuation 114 A detailed examination of these issues will he of the struggle between Confucianism and Legalism presented in a paper by the author at the annual up to the present even within the Party is an open meeting of the Association for Asian Studies in March effort to tamper with the nature and program of the 1977. CCP; they used the criticism of Confucius to direct 115 In a popular book prepared by the Peking attack first on Chou En-lai and later on Hua Kuo­ University, all these points except "law and order" feng; they flaunted the banner of publicizing Legal­ were mentioned in its concluding observation.. jt·­ ism to embellish themselves in an attempt to usurp FA TOIJ·CHENG SHIH KAt-KUANG (A general survey of Party and state power; they glorified Empress Lu the history of the struggle between Confuciamsm and Tse-tien for the purpu.e of making Chiang and Legalism) 144-45 (1975). · Ching China's empress of the 20th century. Su Shih 116 Yangjung-kuo, Strugglr bttuofm thP Twa l.mPI rn Kao. Criticism of Confucianum and Praise of ugalism tht ldtolog~cal Sphert during the Spring and 1\utumn art Faist; Usurpation of Party and Statf PtiU•er is Rtal. Pmod and tht Wamng Statts Penod, 17 Pnm;r. RF\'. 5 Hung-chi 108-12 (;>;o. I, 1977); Hsu Hsun, Chwn~r (:-.lo. 8, 1974) and 17 PEKI"G REv. 14 C\o. 9, 1974) Ching and Empw_s Lu. 19 PEKING REv. 21--23 (No. 52, 117 Yang Jung-kuo, Thf Strug~rlr of Matrnal"m 1976); Tht 'Gang of Four' who malu a .\.foclrrry of Hostory agazrut ldralist Apriorism dunn!{ tht W r.. I S>LH TED ARTictLS CRITIUZIW; LI' (Enlightenment Dail}) (Peking) :\iov. 13. 1976 at I. PIAO AND CONFl'C.H;S 143-5H ( 1975). 16 CONTEMPORARY AsiAN STUDIES SERIES

dique" 1·epresented bv S~u-ma Kuang and The Legalists were also lauded for their other Confucianists."" encouragement of economic. scientific. and The Legalists' stand for "rule by law·· re­ technological development. For in~tance, both ceived considerable acclaim from PRC authors. Shang Yang and Han Fei wet·e shown to have Shang Yang was cited for the statement that attached great importance to fanning and mil­ "punishment should be extended to all ranks itary affairs'" Hsun Tzu "·as cited for his idea of people," a statement inte1·preted as an actual of controlling nature. "Instead of obeying t'ien criticism of the Confucian view that "punish­ (Heaven) and prai~ing it. "·h,· not control the 0 125 ment should not be extended to anyone in the rules of t'ien and use them " Sang Hung­ rank of ta fu (senior officials) or higher."119 yang of the Han dynasty expounded the policv When Shang Yang's laws of reform, including of state monopolv of salt and .iron so as to group responsibility for a member's guilt, were "insure the simultaneous growth of agriculture, violated, the offenders were severely pun­ handicrafts and trade."126 In general, it was ished .120 As a result, "it is recorded that after claimed, the Legalist school's "political line for the new laws 'had been enforced for ten years, progress and change and its materialist view the people of Chin were very happy.' 'order on nature" helped stimulate the development prevailed in town and countryside,' and 'even of science and technology in old China .127 women and children talked about Shang Yang's Special emphasis in the campaign was placed laws.'" A bourgeois revolutionary, Chang Tai­ on the concepts of unification and centraliza­ yen was quoted as saying: "The World sees tion advanced by the Legalists. Han Fei, for only the severity of Shang Yang's new law instance. was one of those credited with the without considering its posltlve conse­ development of the theory of "rule by law" on quences."121 Han Fei was also praised for which to establish a centralized feudal state. establishing laws and institutions to benefit the From his examination of historical experience, common people, because under the rule by Han Fei arrived at the conclusion that only by law "high officials are not exempt from punish­ strengthening the "rule by law" (appointing ment for crimes while the common people are officers according 10 abilitv, bestowing titles not denied rewards for good deeds. " 122 His according to merits, etc.) could the ruler expect advocacy of "severe punishment and harsh to build a rich and strong country, consolidate laws" was justified on his belief that, "if the law a centralized political system, and suppress the enforcement officers are firm, the country will "restoration activities" of the slave-owning aris­ be powerful. If they are weak, the country will tocracy.128 be weak, too."123 The fact that the First Emperor of the Ch'in, aided by Prime Minister Li Ssu, succeeded in 118 Lo Szu-ting, Evolution of the Debalf betwren the realizing the Legalist goals of unification and Confucians and Legalists as Seen from Wang An-shih's centralization appears to have been a primary Reform, I SELECTED ARTICLES CRITICIZING Lis PIAO .•No CONFUCIUS, 185-211; Shih Shang-hui, Wang An­ reason for the glorification of Ch'in Shih shm'.< Legalis; Ideas as virwedfrom the Thrre ''Nots," Ta­ Huang in the Anti-Confucian and Pro-Legalist kung pao. Oct., 1973, at 6. campaign. Another reason was obviously the 119 Yang Jung-kuo, Strugglt betwun Two Lines, PE­ KING REv. (No.8); supra note 115, at 7. 0 " Lo Szu-ting, Struggle between Restoration and Liang Ling-i, Tht Consolidator of Prt-Ch'in Ltga/ist Counttr-Restoration in the Course of Founding the Ch 'in Thoughts~Commmting on Han Fti Tzu, Hung-chi (Red Dynasty, I SELECTED ARTICLES CRITICIZING L1s PIAO Flag), (No.9, 1974), at 29-30. AND CONFUCIUS 113-15 (1975). 124 Lo Sw-ting, Struggle bttwten Rtstoration and 121 /d., at 115. For other PRC writer.' views, see Counter-Reformation, supra note 119, at 113-14; Yang Han-chu, Shang Yang'.< Reform Meamrts Constituttd a Jung-kuo, Struggle betwun Tu•o Line>, PEKISG Rn. Profound Social Changt, and Liang Hsiao. Comments (Xo. 8). supra note 115, at 7-8. 1 on Shang Yang in LUN FA-CHIA HO Jv-FA TOU-CHENC "' Chu 1-ting,An Outstandi11g Ltgalist in tht Warring (comments on the Legalist school and the struggle State.< Prriod-Hsun Tzu, Ll's FA-CHIA Ho jl'-FA TOl'­ between Confucianism and Legalism) 53-71 (1974). CHENG 97 (1974). 122 Yangjung-kuo, Strugglt betwem Two Lines, supra 126 Liang Hsiao, Rtfltrtions on the "Dtscoursts on tht note 115; Yang Kuan, Tht Progressivt Function of Han State Control of Salt and Iron," 2 SELECTED ARTICLES Fei's Theory of "Rule of Lau•." Lus FA-CHIA Ho Ju-FA CRITICIZING L1s PIAU AND Cosn;cn;s 126-27 (1975). TOU-CHENG 104-05 (1974). 127 See, e.g., Li chung. Strugglt httwun Confucian 123 Tien Li, Mencius-a Reactionan· Thinker Wha and Legalist School< and Ancirot Ch1na'< Scitna a11d Sought to Rt.

Jttempt ttJ defend :\lao T'e-tung and hi' rule ad\o<.ated the use of laws and dn ret:' a> teadz­ in response to Lin Piao's denouncing :\lao as ing material and officials as teachers. 132 Hts the "contemporary Ch'in Shih Haung." In the policy of "burning books and bun mg Confu­ "Outline of 5il Project," Lin allegedh attacked cian s<:holars alive" was defended as progressi\·e \lao as "the greatest feudal tyrant in Chinese and necessar) in that it strengthened the cen­ histon· who dons \larxist-Leninist clothes but tralized power by striking a severe blow at the practices the laws of Ch'in Shih Huang."129 restoration acti,ities of the reactionaries who One Chinese author in the campaign, for ex­ "used the past to oppose the pre~ent." 133 ample, pointed out that "traitor Lin Piao. like There i~ little duubt that the campaign to reactionaries in history, insanelY cursed Ch'in criticize Confucianism and to praise Legalism Shih Huang and attacked his laws as a disguise was basically political in nature. Historical fig­ to attack the proletarian dictatorship and the ures and issues were manipulated to support revolutionary legal system of socialism."130 present leaders and policies. Intentionally or In the literature published during the cam­ not, the Legalists' advocan of ··rule by law" paign Ch'in Shih Huang was presented as a was given a great deal of attention. Despite strong and progressive ruler with several posi­ official explanations to the contran·, such Le­ tive achievements.'31 He unified China, by suc­ galist concepts as "fixed and promulgated laws'' cessfully conquering the :.ix other states and and "equality before the Ia"" appear to be at building a unitary state. He established central­ variance with the PRC's current practice .'34 ized authority, accomplished through the ab­ As a result of the campaign, original works rogation of the ducal state institutions, adop­ of the Legalists in complete texts or in excerpts tion of the prefecture-county system, and crea­ 132 tion of an elaborate bureaucracy centered Han Fei once said, "In the stare of the intelligent ruler, there is no literature of hooks and records, around the Emperor. He instituted reforms by but the laws serve as teachings. There are no sayings introducing a uniform monetary system, stand­ of the former kings, but the officials act as teachers." ardizing weights, measures, vehicles, and the HAN FEr Tzu, ch. 49. written language, and constructing postroads 133 It was pointed out that only a small number of and canals. These were applauded as Ch'in reactionary scholars were killed and that books of a technical nature were exempted from destruction. Shih Huang's significant reform measures de­ Lo Szu-ting, Struggle be/U'een Restoratzon and Countn­ signed to promote economic and cultural de­ Restoration, >upra note 119, at 135-36 and Shih Ting, velopment and consolidate the unification of supra note 130, at 26-27. On :\Ia) 8, 1958. :\tao the country. Finally. he suppressed the "resto­ discussed Ch'in Shih Huang at the Second Plenaq Session of the CCP's Central Commiue~ in the follow­ ration" movement. The laws of Ch'in were ing terms: called an important weapon of the dictatorship What was Ch'in Shih Huang anywav~ He onh over the slave-owning aristocratic class. Fallow­ buried four hundred and sixty scholars alive. ing the Legalist doctrine, the First Emperor We have buried forty-six thousand scholars alive. In our suppression of counterrevolution­ aries, haven't we killed some reactionary intel­ 129 There are several translations of the "571" doc­ lectuals? I have argued with Democratic person­ ument. With slight changes, the citation here is based nel: "You accuse us of being Ch'in Shih Huang. on that found in REPORT oN MAINLAND CHINA 6 That is not right. We have surpassed Ch'in Shih (:-.:o. 26. 1972) (China Information Service). Huang hundredfold. You curse us for being 130 Kung Cheng. Commmts on the Laws of Ch'm Shih Ch'in Shih Huang, for being dictators. That we Huang. LuN FA-CHIA HO Jt:-FA TOt:-CHENG 119 have always admitted. The pity is that you have (1974). It should be noted that until the recent not said enough, and we have found it necessary reversal of their auitude. man) PRC writers had to make supplements.'' (roaring laughter) made unfavorable comments on the first Emperor of MAo TsE-TUNG ssv-HsrAsG WAN scr 195 (1969). Ch'in. Even :\tao's attitude had been ambivalent. See 134 Some writers tried to reconcile the Legalist Wang Hsueh-wen. 1Upra note Ill, at 153-63 and Li concepts with those of the present regime. One said Yu-ning, ~upra note Ill. at XX\'li. that the laws of Ch'in Shih Huang meant not only 131 See. e.g .. Hn;G SH!H-TI. CH'IN SHIH Ht:ASG the laws and regulation> he promulgated but abo all (First Emperor of Ch'in) ( 1972); Lo Szu-ting. Struggle his political. economic. and cultural policies and bttu•een Rt'.~toratw11 and Countl"r·Rt\loratlon, .\upra nore decisions. Kung Cheng, .IUpra note 129, at 120. An­ 119, at 124-42; Kung Chen. wpra note 129, at 119- other said, "although the Legalists called their 'Law' 34; Shih Ting, Uanfwng "Burmng Buo/r., and Burvmg 'public justice' and advo•:ated puni,hment without Confucian Schulan Alzvr," li PEKING Rrv. 25-28 (:-.:o. regard to clas~es. their Ia'' actually wa~ the manife'\­ 19, 1974); Ch'm Shih Hluuzg'.< Progre>~!Vf Role zn Hz.1tory, tation of the class will of the newh-emerging landlord :'\.C.:'\.A.,June 5, 1974 cia"." Chu I-ring, 1upra note 124, ar Y2. 18 CoNTEMPORARY AsiAN STUDIES SERIES

have become a\·ailable to the public. This. along reports 10 the 1973 Temh Party Congres,; and "·ith the campaign literature, ma~ haw a far­ the 19i5 Fourth :\ational People's Congress, reaching implication in the long run: the de\·el­ Chou En-lai managed 10 stress the importance opment of a greater respect for formal Ia"·' of discipline, economic development, and ra­ and procedures in the PRC. tional rules and regulations .136 During the movement against Confucianism, ~hou's sup­ Co:-;cu.:siO:..:S ASD Ft:Tt;RE PROSPECTS porters apparently used the praise of Legalism From our discussion. we may conclude that to advance the themes of institutionalization the com·entional approach of focusing on for­ and rule by law. mal legal institlllions is inadequate for under­ The passing of :1-lao from the scene has standing the legal system of the PRC. Chinese created a new situation in China. While the law must be examined in terms of both of ib late Chairmat~ continues to be quoted as a models (formal and informal) and from the source of legitimaq, changes in the direction perspective of its broad social functions in the of Chinese political-legal patterns can be ex­ context of China's revolutionary and develop­ pected. :\!ready, the "radical" elements are mental experience. What also appears clear is being purged, and Chou En-lai's plan for mod­ the strong impact on the Chinese legal devel­ ernization and nationalization is emerging as opment made by Mao Tse-tung, especially his state pol in·."" The swing toward institutionali­ skepticism about bureaucratization, his prefer­ zation. specialization, and economic develop­ erence for the mass line, and his commitment ment (including foreign trade) is bound to to the concept of "uninterrupted revolution." affen the role of law in the PRC. Given the Mao's influence is reflected in the PRC's em­ unique background and experience of the phasis on the societal model of law over the Chinese revolution and development, it is quite jural model, on llexibility rathe•· than "rigidity" likely that many features of people's justice will in the application of law, on the politicization remain relatively unchanged in the years to of the entire legal process, and on the use of come. On the other hand, it is likely that in the law as an instrument of social engineering to future the jural model may achieve some parity transform Chinese society as well as its mem­ with the societal model of law in China and bers. that legal work may regain the kind of respect­ Despite Mao's dominant influence, however, abilitv it once enjoyed during the mid-1950's. there has been an undercurrent running to­ ward more stable and regularized legal order. 136 This was expressed by the intellectuals during THE Tr.sTH :-;ATJONAL CosGRESS oF THE CoM· MUNIST PARTY OF CHINA 34 (197:!) (Document>): the 1957 Hundred Flowers Campaign. In Can­ OocLMESTS oF THE FouRTH ~ATIONAL PEoPLE'o; ton wall posters displayed in late 1974, this CosGRESS, Htpra note 3, c,t 63-64. undercurrent was manifested in the demands 137 For instance. in a speech on December 25. 19i6, on the authorities to observe the law and pro­ Hua Kuo-feng said that "we must follow the policy of building our country and running all our enter· tect the people's constitutional rights. 135 Fur­ prise' diligently ann thriftily, rely on the masse>. thermore, some members of the Communist 'iystenw.tize national rules and regulations, and itn­ elites seem to have differed with Mao over the prove and .;;trengthen sociali~t economic manage- role of law. Purged leaders such as Liu Shao­ ment. ch'i and P'eng Chen were denounced for their 20 PEKING REV. 42 (:-;o. 1, 1977.) The joint editorial of the People'' Dail~. The Red Flag. and the Libera· advocacy of the bourgeois legal system. Even tion Army Daily on januarv I, 1977 also stated. Chou En-lai and Tung Pi-wu made occasional We are cenainlv able to create a completely ne" pleas for codification and regularization. l n his ~ituation in which there are political liveline,., and economic prosperity. and in ~·hich a 130 In a poster appearing at the end of 1974. a hundred schools of thought contend and group of demobilized veterans made such demands hundred flowers blossom in science and culture. on the provincial authnrities of Kwangtung. :\fts<: and the peoplt-'s livelihood steadily improve 011 PAo :\losTHLY 99 (:>;o. 112, 1975). In another poster the basis of the de,·elopmem of production. We appearing in ~ovember, 19i4, some educaterl youth, will cenainh· be able to achieve the magnificent asked the Fourth :-.:ational People's Congress to pro­ goal of accomplishing the comprehensive mod­ •·irle protection for "all the demoaatic right' which ernization of agriruhun:. indu~tq. national de­ the masses of people deserve." Conarning IM Soriafl,t feme, and science and technology and build Dnnocrary mu/ IM Ugnl Sy,trm-DedicatPd to Ch"innnn China ill!o a po"·et·f ul sodalist country before .Woo and thr Fourth .\'ationnl PPoplf< Cong""· 12 Iss<:ES the end of the <·emun. & STt:DIES 142-43 (~0. I. 1976). 20 PF.KI"'· Rtv. 42 (:'\o. I. 1977) ..11 47. IMPLICATIONS: ANTI-CONFUCIAN AND PRO-LEGALIST 17

..tttempt tu defend :'\lao T'e-tung and hi' rule advm.ated the use of Ia'" and dn ret:' '" te..tdl­ in response to Lin Piao's denouncing :'\lao as ing material and officials as teachers-'32 Hts the "contemporary Ch'in Shih Haung." In the polic~ of "burning books and buning Confu­ "Outline of 5 i I Project," Lin alleg-edlv attacked cian scholars alive" was defended a' progressive :'\lao as "the greatest feudal tyrant in Chine;e and necessaq in that it strengthened the cen­ histon- who dons :\farxist-Leninist clothes but tralized power by striking a se\ ere blow at the practices the laws of Ch'in Shih Huang."129 restoration activities of the reaHionaries \d-.u One Chinese author in the campaign, for ex­ "used the past to oppose the present ." 133 ample, pointed out that "traitor Lin Piao, like There is little doubt that the campaign to reactionaries in history, insanely cursed Ch'in criticize Confucianism and to prai'e Legalism Shih Huang and attacked his laws as a disguise was basically political in nature. Historical fig­ to attack the proletarian dictatorship and the ures and issues were manipulated to support revolutionary legal system of socialism."130 present leaders and policies. Intentionally or In the literature published during the cam­ not, the Legalists' advocan of "rule by law" paign Ch'in Shih Huang was presented as a was given a great deal of attention. Despite strong and progressive ruler with several posi­ official explanations to the contrarv, such Le­ tive achievements.'31 He unified China, by suc­ galist concepts as "fixed and promulgated laws" cessfully conquering the six other states and and "equality before the law" appear to be at building a unitary state. He established central­ variance with the PRC's current practice 134 ized authority, accomplished through the ab­ As a result of the campaign, original works rogation of the ducal state institutions, adop­ of the Legalists in complete texts or in excerpts tion of the prefecture-county system, and crea­ 13 tion of an elaborate bureaucracy centered ' Han Fei once said, "In the state of the intelligent ruler, there is no literature of books and records, around the Emperor. He instituted reforms by but the laws serve as teachings There are no sayings introducing a uniform monetary system, stand­ of the former kings, but the officials act as teachers." ardizing weights, measures, vehicles, and the HM< FE! Tzu, ch. 49. written language, and constructing postroads 133 It was pointed out that only a small number of and canals. These were applauded as Ch'in reactionary scholars were killed and that books of a technical nature were exempted from destruction. Shih Huang's significant reform measures de­ Lo Szu-ting, Struggle between Resturatwn and Countn·­ signed to promote economic and cultural de­ Restoration, .1upra note 119, at 135-36 and Shih Ting, velopment and consolidate the unification of .IUpra note 130. at 26-2i. On :'\fa) 8, 1958. Mao the country. Finally, he suppressed the "resto­ discussed Ch 'in Shih Huang at the Sewnd Plenary Session of the CCP's Central Committee in the follow­ ration" movement. The laws of Ch'in were ing terms: called an important weapon of the dictatorship What was Ch'in Shih Huang anvwav? He onl) over the slave-owning aristocratic class. Follow­ buried four hundred and sixty scholars alive. ing the Legalist doctrine, the First Emperor We have buried forty-six thousand scholars alive. In our suppression of counterrevolution­ aries, haven't we killed some reactionary intel­ '"" There are several translations of the "57!" doc­ lectuals? I have argued with Democratic person­ ument. With slight changes, the citation here is based nel: "You accuse us of being Ch'in Sh1h Huang. on that found in REPORT ON MAINLAND CHINA 6 That is not right. We have surpassed Ch'in Shih (:>:o. 26. 1972) (China Information Service). Huang hundredfold. You curse us for being 130 Kung Cheng, Commmts on the Laws of Ch 'm Shih Ch'in Shih Huang, for being dictator>. That we Huang, LvN FA-CHIA HO jt:-FA TOt:-CHENG 119 have always admitted. The pity is that you have (1974). It should be noted that until the recent not said enough, and we have found it necessary reversal of their attitude, man) PRC writers hac! to make supplements." (roaring laughter) made unfavorable comments on the first Emperor of MAo TsE-TUNG ssu-HSJA"G WAN su 195 (1969). Ch'in. Even Mao's attitude had been ambivalent. See 134 Some writers tried to reconcile the Legalist Wang Hsueh-wen, 'upra note Ill, at 153-63 and Li concepts with those of the present regime. One said \'u-ning. \upra nole Ill, at xxvii. that the laws of Ch'in Shih Huang meant not unl) 131 See, e.g., Ht"NG SHIH-TI. CH'"' SHIH Ht'ANG the laws and r·egulatiom he promulgated but abo all (First Emperor of Ch'in) (19i2); Lo Szu-ting, Struggle his political, economic, and cultural policies and betuoten Rt'storatzou and Countrr·Rr~toration, Jupra note decisions. Kung Cheng, .IUpra note 129, at 120. An­ 119, at 124-42; Kung Chen, 1Upra note 129, at 119- other said, "although the Legalists called their 'Law' 34; Shih Ting, Unnfvmg "Burmng Buok., and Bu>J·mg 'publil justice' and advocated puni,hment without COTifunan Srhu/an Alzve," li PEKING Rt:v. 25-28 (~o. regard to clas"'es. their law .:tctually wa~ the manife"'· 19, 1974); Ch'm Shih Huang·, ProgrrHn•e Role In !11.\tory, ration of the class will of the newly-emerging landlord :\.C.:\.A .. june 5. IY74. cia"." Chu 1-ting, \Upm note 124. ar Y2. 18 CONTEMPORARY ASIAN STUDIES SERIES

have become a,·ailable to the public. This. ;lion~ reports to the 19i3 Tenth Party Congress and with the campaign literature, may have ;1 far­ the 19i5 Fourth :\ational People's Congress, reaching implication in the long run: the devel­ Chou En-lai managed to stress the importance opment of a greater respect for formal law' of discipline. economic development, and ra­ and procedures in the PRC. tional rules and regulations. 136 During the movement against Confucianism, <:;hou's sup­ Coscu.:sJONS AND Ft:TliRE PROSPECTS porters apparently used the praise of Legalism From our discussion. we may conclude that to advance the themes of institutionalization the conventional approach of focusing on for­ and rule by law. mal legal institutions is inadequate for under­ The passing of :\lao from the scene has standing the legal system of the PRC. Chinese created a new situation in China. While the law must be examined in terms of both of its late Chairmar: continues to be quoted as a models (formal and informal) and from the source of legitimacy, changes in the direction perspective of its broad social functions in the of Chinese political-legal patterns can be ex­ context of China's revolutionary and den~lop­ pected. Alreadv, the "radical" elements are mental experience. What also appears clear is being purged, and Chou En-lai's plan for mod­ the strong impact on the Chinese legal devel­ et·nization and nationalization is emerging as opment made by Mao Tse-tung, especially his 1 7 state policv . " The swing toward institutionali­ skepticism about bureaucratization, his prefer­ zation, specialization, and economic develop­ erence for the mass line, and his commitment ment (including foreign trade) is bound to to the concept of "uninterrupted revolution." affect the role of law in the PRC. Given the Mao's influence. is reflected in the PRC's em­ unique background and experience of the phasis on the societal model of law over the Chinese revolution and development, it is quite jural model, on flexibility rather than "rigidity" likely that many features of people's justice will in the application of law. on the politicization remain relatively unchanged in the vears to of the entire legal process, and on the use of come. On the other hand, it is likelv that in the law as an instrument of social engineering to future the jural model may achieve some paritv transform Chinese society as well as its mem­ with the societal model of law in China and bers. that legal work may regain the kind of respect­ Despite Mao's dominant influence, however, abilitv it once enjoved during the mid-1950's. there has been an undercurrent running to­ wat·d more stable and regularized legal order. 36 This was expressed by the intellectuals during ' THE TE"T" :\ATIONAL CosGREss oF THE CoM­ MI!NtsT PARTY oF CHI" A 34 ( 197~) (Documents); the 1957 Hundred Flowers Campaign. In Can­ Doct:ME~Ts OF THE FouRTH ;\;ATIONAL PEOPLE''\ ton wall posters displayed in late 1974. this CosGRESS, .1upra note 3, c.t 63-64. undercurrent was manifested in the demands 137 For instance, in a speech on December 25, 19i6, on the authorities to observe the law and pro­ Hua Kuo-feng said that "we must follow the policy tect the people's constitutional rights.'35 Fur­ of building our country and running all our enter­ prise' diligently ancl thriftily, relv on the masses. thermore, some members of the Communist systematize national rules and regulations. and im­ elites seem to have differed with Mao over the prove and .rrengthen socialist economic manage­ role of law. Purged leaders such as Liu Shao­ ment." ch'i and P'eng Chen were denounced for their 20 PEKI!'IG Rn. 42 (:\o. I, l9ii.) The joint editorial of the People's Daily, The Red Flag, and the Libera­ advocacy of the bourgeois legal system. Even tion Armv Dailv on Januarv I, 1977 also stated, Chou En-lai and Tung Pi-wu made occasional We are c;,nainly able to create a completelv new pleas for codification and regularization. In his situation in "·hich there are political liveline~;; and economic pros peri tv. and in which a 130 In a poster appearing at the end of 1974. a hundred l fense. and science ;mel technology and build D~mocrary at~d tlu Legal Sy>l•m-Dedicat•d to Cllllinna11 China into a powerful socialist country before .\fao ar~d tlv Fourth .Vatiottnl P,oplr< Cun!(Tf''· 12 lsSL•Es the end of the centurv. & STl:OIES 142-43 (!'lo. I. 1976). 20 PF.Kiw. Rtv. 42 (:\o. I, 197i). at 4i.

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