2012

Tristan Alberto Vaca Narvaja

[THE LI AND THE FA ALONG CHINESE LEGAL HISTORY]

China University of Political Science and Law An Overview of Chinese Legal System

Introduction
The purpose of this paper is to make an analysis about how the concepts of Fa and Li interacted between each other along the Chinese legal history, starting with a brief summary of the dynastic eras, and focusing in what we could call modern legal history, what I consider starts on the late Qing Dynasty. The analysis ends with the admission of China to the WTO, because I think that is a topic that deserves a whole new article for itself, and due to time limitations cannot be developed properly. The reason why I have chosen this theme is because I firmly believe that to be able to understand nowadays legal debates and legislation is necessary to have an idea about the broad historical and ideological Chinese framework. Along the more than 5.000 years of history, China has reinvented itself several times, learning from the hits and misses, unsurprisingly legal principles and legislation has followed the same stream. This papers starts with the genesis of the Li and Fa concepts, relating it with the Confucianism and legalism philosophies. Then, the each section illustrates an important period in Chinese history, emphasizing the situation of the law. Those sections comprehends, the late Qing dynasty, the republican era, the changes during the communist era, the application of the cultural revolution and the effects of Deng Xiaoping open policy.

The origins of the Li and the Fa

If we are talking about the development of Chinese Law, we cannot overlook the two principle waves that have signed the thinking of Chinese scholars, the Legalism and the Confucianism Legalism started around the Qin Dynasty (221-206 B.C) and according to it, the only way to reach social harmony was by submitting the society to the fa ( ancestral Chinese term that can be related the modern concept of positive law), that lead to a rigid legal regime that had to be obeyed under the menace of severe punishment. The statesman Shang Yan (338 ac.) believed that as the human being is naturally evil and selfish, it should be ruled by impersonal laws. All the legal regulations should be draft clearly and diffused around the population, providing rewards to those who followed the law and punishing those who do not comply, ensuring that the actions taken place by the legal system will be predictable. But, what were the consequences of such a legalist extremism? Treating the law as a purpose, and not as a means, does not consider the fact that at the end is still issued by a person who embodies the authority, and it can show his strengths and weaknesses. Under the slogan "a bad law is better than no law," the situation soon degenerated into a dictatorial regime of draconic severity. The lesson learned: overestimate the importance of the Fa implies paving the
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China University of Political Science and Law An Overview of Chinese Legal System

way to arbitrariness masqueraded as legal forms. Even if finally the Qin dynasty collapsed as a result of the public outcry, the legalism school was not disposed, subsequent dynasties used written codes (such as the Tang Code). As response to this philosophical doctrine and to the social disorder prevailing at that time, the Confucianism philosophy came on the scene. Kong Fuzi philosophical activity focused on finding the response to the chaos to restore the road to social harmony quickly became the most important Oriental scholar. His philosophy rescued the values needed to achieve social harmony (virtue, loyalty, trust, respect others, dynamism, etc.). Confucius is undoubtedly the strongest figure of traditional Chinese culture. During the Han Dynasty, Confucianism was established as the official philosophy of the empire, in an attempt to achieve the government of men, or in other words, the government of the virtue. The foundation to regulate the social behavior was the example set by the leaders; social harmony is attained by the individual acceptance of moral rules rather than external law coercion. The differences between people were solved according to the principles of the Li, which is why the contemporary Chinese doctrine advocates the direct reconciliation as the primary path of resolving disputes between the parties involved in any kind of disagreement.

Moving from the empire to the republic

The modernization tendency (present throughout the imperial age) was been intensified by China's defeat in the Opium Wars (1834-1860) after which the Celestial Empire was forced to liberalize trade and yield some strategic ports to Anglo-Saxon capitalism. The evident gap between West countries and China was also palpable in the legal sphere, as the Dragon could do little against the treaties imposed by the English gunboat diplomacy. This last ditch effort of the Qing dynasty, about to disappear, has also been the first in Chinese history that consciously seeks to introduce permanently legal institutions of other countries into the Chinese society. However, the incompatibility of legal reforms with the old feudal system only accelerated the collapse of the Empire. The second major reform was carried out by the Republic (1911-1949). The Nationalist government leaned towards the Japanese and German legislation. Sun Yat-Sen, father of the Republic and founder of the Kuomintang, had contacts in Japan and many of the top national leaders were formed in the Land of the Rising sun. Thus, the Republican Civil Code was strongly influenced by the German one.

Law during the Maoist revolution

After the victory of Mao Zedong's Communist forces over the Kuomintang forces and the establishment of the People's Republic in 1949, all the previous legislation were abolished, It was considered to be reactionary and shaped to the interest of the west countries. However, legal
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China University of Political Science and Law An Overview of Chinese Legal System

forms and Western legal terminology prevailed. Since 1950, a new process of transplantation of laws started, this time with a remarkable influence of the Soviet Union legislation, in detriment of the West law schools. Even if the Maoist hierarchy called this period as the "legal construction age", in practice, the principles of laws, laws, terms and even the Soviet study manuals were copied and taught in the Chinese forum. Legal institutions such as courts, prosecutors and the legal profession were renewed following the Soviet Union model. It began, according to these standards, the work for the enactment of a new Civil Code and a Criminal. Economic laws, that were few and ambiguous, were designed to assist the five-year planning of the communist model. China tried to consolidate the transition from the democratic revolution to a socialist society. To do this, in the economic sphere, the laws had to facilitate public ownership of the means of production and the development of the planned economy. In the political field, was essential to underpin the democratic dictatorship and strengthen the Party supremacy. Finally, on the ideological level, they went further into the Marxist theory by eliminating the bourgeois and reactionary remnants of the imperial era and Kuomintang. The few laws enacted at this time safeguard China's path to socialism. The Constitution for example, indicated that with the planned industrialization and the Marxist revolution the capitalist exploitation as a preliminary step to achieve a communist society. Thus, private property was set aside and the few capitalists left were forced to establish joint ventures with the state. At the end of this campaign, private companies disappeared and consequently the laws that regulated them putting away any vestiges of market rules. The economy was centralized following the image of the Russian model. In such an orthodox system, the law was not relevant. In this context, State enterprises just executed the directives of the political hierarchy. Economic laws were based more in administrative regulations than in legal acts and the civil law was practically nonexistent.

Legal Nihilism during the Cultural Revolution

In a particular context in which the laws where postponed regarding the directives of the Party, laws and regulations were seen as flexible bodies, mutable and submitted to the political affairs and hostages of the socialist state. The work of the committees responsible for drafting the civil code and criminal code was interrupted. During the Cultural Revolution many jurists, lawyers and judges, who supported judicial independence, equality before the law, the presumption of innocence and the right to legal protection, were imprisoned or died as they were labeled as bourgeois and revolutionaries. This period could be called as Legal nihilism because the Cultural Revolution denoted, in some way, a disregard for law. The law had been totally politicized, the existing rules were repealed and there were not new enacted laws to replace them. The People's Congress practically suspended its legislative work. Law schools and research institutes all along china were
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China University of Political Science and Law An Overview of Chinese Legal System

closed. Lawyers, judges, court personnel and law professors were also sent to the countryside to be reeducated. The courts were closed and a dictatorship, where the punishments were administered by the Red Guards, was established. This group did not hesitate to arrest without warrant and execute without trial, no law constrained the actions of the Red Guard. The law was seen by Maoist supporters, as an instrument of capitalism that restricted the revolutionary zeal. The most similar thing to a supreme law was the Red Book, a series of selected thoughts of Mao Zedong. After the Maos Death (1976) a change of course was only a matter of time. One of the key concerns of Party officials when Deng Xiaoping took office was to restore the law within the State. To achieve this, the leaders were determined to create an effective legal system that would preserve the social stability and protect the individual rights. Deng ends with the legal nihilism and started a gradual reform of laws enacting the foundation stone of the new Chinese legal system: the Constitution. The Legal modernization was a step to access foreign investment. The mandarins used the law as a means to stay in power and prevent sudden social changes, thus legitimating the leadership of the new party.

Deng Xiaoping and a new socialism.

Deng Xiaopings takeover ushered in an ideological and practical shift. As careful student of history, the new leader began a unique process of political and economic reform. The main goal was to development Chinese economy. Under the slogan of "one country, two systems", Deng turns away from some failed Maoist economic conceptions to start a project where socialism and capitalism interact. Logically, the new reform plan would trigger profound changes in the peculiar Chinese legal system, mainly focused on seven areas: Constitution, civil and commercial laws, administrative laws, economic laws, social laws, criminal law and procedure codes and court of voluntary jurisdiction. The new legal design reflects wisely the lessons of the past as Deng Xiaoping s technocrats sought solutions giving priority to the harmony between li and fa. The main task was to establish a legal framework consistent with the ancient Chinese tradition and the experience showed that it was not easy. First, the causes that made previous legal experiments unsuccessful were studied among them: the exacerbated Westernization of the codification project during the Kuomintang government, the legal Sovietization conducted during the first stage of Maoism, or the anti-legalism that characterized the Cultural Revolution. The legal architects of the new regime took note of three key historical lessons: the need to establish a system based on positive law (recovering the legalistic school of the Qin dynasty), which must respect the importance of social customs and traditions, mainly Confucianism, and finally, the solutions must be sought in the foreign legal experience, but without leading to a mere copy of other countries laws. The real challenge was to design a legal system that combines these elements in harmony.
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China University of Political Science and Law An Overview of Chinese Legal System

The Neolegalism
The reformers realized the impossibility of developing a country without a minimum amount of legal institutions that guarantee the necessary political stability for the proper development of economic activities. Being attractive for foreign investors was the central motif of the first stage of reforms. Following this line of thought, the designers of the new Chinese legal system rescued the old school of "legalism" without falling into the excesses of the Qin ("a bad law is better than no law"). They were careful not to overstate the importance of the Fa by considering that the positive law is the unique and necessary means of political domination. Unlike the early imperial conception, law is regarded just as a convenient means to achieve economic and social development. The proclamation of the third plenary session of the XI Congress of the Communist Party charted the way: establish a legal system based on the codification of written laws, create an independent judicial system and ensure equality of persons before the law. Since 1979, a process of prolific legislative output begins, even recovered the force of some laws repealed during the Cultural Revolution. The inflection point of this process was the enactment of the Constitution of 1982, in which the modernizing project of Deng Xiaoping is given legal status, as can be inferred from the preamble: "This Constitution affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the state in legal form; it is the fundamental law of the state and has supreme legal authority." In that paper, the path for the progressive construction of Chinese legal system was set. Considering the unique context, this task was a difficult road, as Deng himself warned: our country has no tradition to abide and enforce the law, it is essential that we continue working to establish a truth legal system.

The return of Confucius

The second lesson of Chinese history was to respect tradition. The Party hierarchy considers that the culture should not be alien from any project of reform, especially if it disrupts an area as important as the legal one. Unlike western contemporary legal history, the Chinese starts from the premise of rule of men" instead of "rule of law". Confucianism argues that good or bad intentions of the people depend on education, and it is the result of the moral influence exercised by those who hold power. The principle of "rule of men" is derived from the principle of "rule of virtue." People with higher position are those who have the ability to influence. In this sense, it was preferred a leader who ruled backed on its moral correctness rather than one whose leadership relies on impersonal laws. The fundamental idea underlying the legal system of the socialist China (as in most of the Confucian imperial era) is harmony in a world where, at least ideally, there should be no misconduct to regulate. This reveals a major rift between Chinese and Western legal culture. Dengs Legal architects conceived the law as subordinated to politics and created a legal system consistent with this position. Although it was understood the need for a legal framework as a
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China University of Political Science and Law An Overview of Chinese Legal System

retaining wall against the negative aspects of authoritarianism, in practice, the Party (or the moral correctness of their leaders) guided all the different state organs. The Confucian tradition emphasizes the settlement of disputes through informal mediation methods between the parties. Legal rules are perceived as foreign to the moral (li) whose compliance must be based on the will of each subject. Consequently, contract law gave great importance to the extrajudicial settlement of disputes. Even today, Chinese contract law prescribed that the initiation of legal proceedings is the last resort to resolve disputes between persons. Moreover, the Constitution provides the existence of mediation agencies as the People's Mediation Commission, whose sole function mediate disputes of the people. It should also be pinpointed that the institutional predilection towards alternative means of dispute has also other reasons besides the Confucian heritage, also relies on the historical institutional inability to provide legal services to such a vast population.

Economic and legal framework

The key area of the modernization plan was the Economic development. The first objective of the strategy was to attract foreign investment. Thus, the first legal reforms aimed to create a legal framework to support the penetration of foreign capital. The Communist leaders were well aware that it was impossible to attract investment without first establishing clear ground rules. Therefore, during the period from 1978 to 1989 were passed over 3,000 laws and regulations. In 1979, the Law of Joint Ventures that promoted the utilization of foreign and local capital, sought to turn the Asiatic giant an attractive place to invest. To do so, some special administrative regimens were established in cities like Shanghai and Beijing, tax incentives and free zones were created, and the road and port infrastructure improved, etc. Once the first positive results were achieved, began the second stage. The important thing was to establish the internal framework necessary to expedite businesses, by reforming the economic and civil laws. Thats why in 1982 enters into force the Economic Contracts Law and, in 1986, The General Principles of Civil Law. In terms of commercial regulation, the tactic was to learn from the day to day. Regular contact with Occident became the best social laboratory that officials could have. Thus, the experience determined the rhythm of the domestic economic legal reform, especially as regards the field of contract law, in which the review was constant. The initial success of this elaborate plan received international certification with the acceptance of China as a member of the World Trade Organization in 2001.

China University of Political Science and Law An Overview of Chinese Legal System

Conclusions
This paper has attempted to provide a brief look at the complex background of the Chinese legislation that has evolved, and also involved, according to the course of history. The legislation as we know it nowadays is the result of all the steps forwards and backwards along each period. Its like a living organism, that we need to know where it comes from to understand where is aiming to go. If we think about the changes during recent years within historical standards, it has been too fleeting. In just a quarter century the legal system has been reinvented from the ground, inserting also a brand new economic model while designing the regulatory framework to support it. Al this combined with a number of disparate variants such as culture, tradition and the new political turn. All western critics must consider the fact that Chinese modern legislation is really recent, and it is still maturing, they cannot expect China to achieve a legislation system as the one some (not all) western countries has developed during more than two centuries (we can consider that the codification wave started with the Napoleonic code en 1804). To be admitted to the WTO, China had to reach some regulation standards, what had already done, but it did not finished there. Since 2001 the legislation has improve significantly in areas such as criminal law, company law, securities law, civil law, just to mention some. And It is not giving signs of turning in another direction. The Chinese legislation has developed in a pendulum motion between the Li and the Fa, trying and struggling constantly on finding a balanced position that meets the social requirements and the state objectives. However, I could say that maybe nowadays we have achieve a situation where both concept are respectful from each other. It is a risky statement that can only be judged by the History. I also have tried to draw attention to the potential that gives to western countries the study of the legal culture of China. Not only because of the increasing size as an actor in the global economy, but also because it opens a window to a complete new cultural experience. The law in China has developed in conditions completely different from the rest of the world, however, allows parallels amazing. For instance discussions on the age-old dichotomy in doctrines such as Legalism and Confucianism can be assimilated to the Western own antagonism between legal positivism and natural law.

China University of Political Science and Law An Overview of Chinese Legal System

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