Understanding China’s Legal System

Understanding China’s Legal System

UnderstandingChina’s Legal System

Essays in Honor of Jerome A. Cohen

e d i t e d b y

C. Stephen Hsu

aNew York University Pressn e w y o r k a n d l o n d o n

n e w y o r k u n i v e r s i t y p r e s sNew York and London

© 2003 by New York UniversityAll rights reserved

Library of Congress Cataloging-in-Publication DataUnderstanding China’s legal system :essays in honor of Jerome A. Cohen / edited by C. Stephen Hsu.p. cm.Includes bibliographical references.ISBN 0-8147-3653-X (cloth : alk. paper)1. Law—China. 2. Law—China—History.I. Cohen, Jerome Alan. II. Hsu, C. Stephen.KNQ74 .U54 2003349.51—dc21 2002014117

New York University Press books are printed on acid-free paper,and their binding materials are chosen for strength and durability.

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Contents

Introduction 1C. Stephen Hsu

1 Trying to Understand the Current Chinese Legal System 7William C. Jones

2 Exporting “the Pursuit of Happiness” 46William P. Alford

3 Puzzling Observations in Chinese Law:When Is a Riddle Just a Mistake? 93

Donald C. Clarke

4 Grave Matters: Warring States Law and Philosophy 122Susan Roosevelt Weld

5 The Role of Case Precedent in the Qing Judicial Process as Reflected in Appellate Rulings 180

R. Randle Edwards

6 The Comparative Law School of China 210Alison W. Conner

7 Law in China’s Economic Development:An Essay from Afar 274

Natalie G. Lichtenstein

8 A Legal Perspective on the Development of Electoral Democracy in China:The Case of Village Elections 295

Jamie P. Horsley

v

9 The Concept of “One Country, Two Systems”and Its Application to Hong Kong 353

Albert H. Chen

10 The Rule of Law in Taiwan:Culture, Ideology, and Social Change 374

Tsung-fu Chen

About the Contributors 411

About the Editor 415

Index 417

vi Contents

Introduction

C. Stephen Hsu

This collection of essays celebrates Professor Jerome A. Cohen’s ground-breaking role in American scholarship on Chinese law. Authored by Pro-fessor Cohen’s former students and academic associates, the articles coverimportant topics in Chinese legal studies, ranging from ancient legal his-tory to the contemporary legal process.

Widely recognized as the foremost American authority on Chinese law,Professor Cohen started his adult life in a way that presaged anything buta career in Chinese legal studies. A Phi Beta Kappa graduate of Yale Col-lege (B.A. in Political Science, 1951), Professor Cohen went on to Yale LawSchool in 1952 after spending the 1951–52 academic year as a FulbrightScholar in France. He distinguished himself at Yale Law School, serving aseditor-in-chief of the Yale Law Journal and graduating first in his class in1955. After then clerking at the U.S. Supreme Court for both Chief JusticeEarl Warren (1955 term) and Justice Felix Frankfurter (1956 term), Pro-fessor Cohen was on the ideal path to becoming a public law professor at amajor U.S. law school.

And that was exactly what he had in mind. After spending one yearpracticing law at a large, private law firm and another as an assistantU.S. attorney and a consultant to the U.S. Senate Committee on ForeignRelations, Professor Cohen entered academia in 1959. A promisingyoung professor at the University of California School of Law at Berke-ley, Professor Cohen set out to teach administrative, criminal, and inter-national law. Little did he suspect that, although he had never been asso-ciated—even remotely—with China, that country and its legal processwere soon to become the focus of his career for over four decades, untilthe present day.

1

Just at that time Dean Rusk, then president of the Rockefeller Founda-tion and soon after secretary of state for eight years, suggested that some-one ought to study the law of the People’s Republic of China (PRC),something no Western lawyer had ever undertaken. Recognizing the po-tential significance of U.S.- China relations and, more important, the chal-lenge of such a unique and exciting opportunity, Professor Cohen decidedto accept the foundation’s invitation. In 1960, shortly after his thirtiethbirthday, Professor Cohen began to study the Chinese language and em-barked on what many believed to be an ill-advised endeavor to grasp theintricacies of Chinese law. What no one foresaw at the time was how gen-erations of lawyers and legal scholars, many of whom Professor Cohenwas to teach personally, would follow in his bold footsteps.

Tackling his research task with characteristic energy and enthusiasm,Professor Cohen quickly established himself as the leading expert on Chi-nese law in the Western world. His first major breakthrough came in theform of a one-year fieldwork stint in Hong Kong in 1963–64, where he in-terviewed refugees from mainland China and researched other materialsin an effort to map out the legal system of a closed-off country. Publishedby Harvard University Press in 1968 as The Criminal Process in the People’sRepublic of China, 1949–1963: An Introduction, the results of that studyrepresent a major, path-breaking achievement in American scholarship onChinese law.

In the meantime, Professor Cohen had moved to become a facultymember at Harvard Law School, where he stayed for twenty- five yearsfrom 1964 to 1989, serving as its associate dean between 1975 and 1978.The presence of Professor Cohen at Harvard Law School, as well as theEast Asian Legal Studies (EALS) program he founded there in 1965 anddirected until 1981, made Harvard Law School the mecca of Chinese legalstudies in the Western Hemisphere. That the contributors to this volume,all major scholars of Chinese law, have all been—in one way or another—associated with Harvard Law School and/or EALS is strong testimony toProfessor Cohen’s unparalleled impact on Chinese legal studies in theUnited States and beyond.

The field of Chinese legal studies saw a tremendous development in thelate 1970s when, under the leadership of Deng Xiaoping, China decided toadopt the “Open Policy” and launched increasingly impressive economicand political reforms. A critical impetus for the field’s development came,not surprisingly, from what Professor Cohen—as bold and visionary asever—undertook at this historical moment. While on a sabbatical from

2 c. s t e p h e n h s u

Harvard Law School in 1979, Professor Cohen started to assist China’sMinistry of Finance in designing laws on international taxation. In addi-tion, by helping the Coudert Brothers law firm set up the first foreign lawoffice ever in the PRC, he began, to involve himself in China-related pri-vate practice.

Both assisting the Chinese government with its law reforms and pro-viding U.S. companies with practical legal advice have since become im-portant focuses of the community of American experts on Chinese law.And Professor Cohen has been the leading force on both fronts. In 1981,after concluding that he could learn more about China and Chinese law inprivate practice than by teaching full time at Harvard, Professor Cohenjoined the international law firm of Paul, Weiss, Rifkind, Wharton, andGarrison to build and lead that firm’s China practice. While a full-timepractitioner, he continued to lecture at Harvard Law School until 1989,when he joined the law faculty of New York University. He has stayed withPaul, Weiss and New York University School of Law to the present day andhas contributed immensely to those institutions’ expertise in Chinese law.

Throughout his career, Professor Cohen has been a constant source ofinspiration and knowledge about China and Chinese law. In addition tohis pioneering study of the PRC criminal process, Professor Cohen haswritten a series of important books and scores of influential articles onChinese legal topics. Through his writings, his courses and frequent con-ferences at Harvard Law School and elsewhere, and in many instances hispersonal coaching, Professor Cohen has taught and trained numerouslawyers and legal scholars who are now playing key roles in the field ofChinese legal studies and in promoting Chinese-American understandingand cooperation.

The articles this volume comprises, written by prominent Chinese lawexperts in the United States and beyond, offer convincing evidence of theexceptional legacy of Professor Cohen in the field of Chinese law. The arti-cle by William C. Jones, “Trying to Understand the Current Chinese LegalSystem,” demonstrates, as does Professor Cohen’s scholarship, how indis-pensable knowledge of China’s legal tradition is for anyone wishing to un-derstand contemporary Chinese law and to anticipate the pace and direc-tion of its future development. China’s current program of law reforms,Jones demonstrates, has been and will continue to be influenced byChina’s traditions, whether ancient or more recent. As a result, the ulti-mate form of China’s legal system is likely to be different from any foreignlaw system that China may wish to emulate.

Introduction 3

The article by William P. Alford, “Exporting ‘the Pursuit of Happiness,’”is a substantive review of Thomas Carothers’s recent book Aiding Democ-racy Abroad: The Learning Curve. Reflecting on democracy-promotionprograms that the United States has engaged in, especially since the col-lapse of the Soviet Union, Alford criticizes the failure of many democracypromoters to appreciate not only the history and tradition of those whomthey seek to assist but also the distinctive nature of the ideas and institu-tions they seek to export. Consequently, “they approach legal reform inother societies as if the past were little more than an encumbrance that theclear-minded should be only too ready to discard for a future remarkablyakin to ours.” To remedy this problem, Alford points out, there must de-velop a more richly theoretical, broadly comparative, and historicallygrounded understanding of democracy and the processes of politicalchange.

In his article, “Puzzling Observations in Chinese Law: When Is a RiddleJust a Mistake?” Donald C. Clarke reflects on the methodological difficul-ties that are inherent in choosing a standard against which to understandthe Chinese legal system. The best attainable understanding of the Chineselegal system, Clarke suggests, is not the best-fitting Western model plus in-compatible observations that are explained as mistakes. Western scholarsof Chinese law must instead explore multiple ways of modeling in orderfully to understand the Chinese system, including that system’s importantinternal relationships.

The next three articles, “Grave Matters: Warring States Law and Philos-ophy,” “The Role of Case Precedent in the Qing Judicial Process as Re-flected in Appellate Rulings,” and “The Comparative Law School ofChina,” by Susan Roosevelt Weld, R. Randle Edwards, and Alison W. Con-ner, respectively, are attempts to understand different periods of Chineselegal history. In her article, Weld examines the legal, religious, and philo-sophical documents that have been excavated recently from the kingdomof Chu of the Warring States period. Instead of trying to fit these newlydiscovered texts into conventional paradigms that have been derived fromthe Chinese classics, Weld analyzes the texts for themselves and reveals arich, distinctive picture of the theory and practice of law and governmentin the Chu state in the early fourth century b.c.

Based on his reading of appellate cases from the Qing dynasty, Edwardsin his article provides a focused analysis of the role of case precedents inthe Qing judicial process. New legal rules during the Qing period, Ed-wards shows, typically emerged from the judicial process and through leg-


islative proposals initiated by provincial officials. Although a draft opinionwas required properly to cite the governing statute or sub-statute, if any,Qing judicial officials when faced with issues not covered by existing ruleswould often devise legal rules by reference to earlier cases; where such de-cisions were upheld by higher authorities, such rules would then becomenew binding law.

Conner’s article examines in detail the curriculum of Soochow LawSchool, one of the most distinguished and influential law schools of theRepublican period. Known as the “Comparative Law School of China,”Soochow Law School had by the 1930s developed a broadly comparativeprogram in civil law and “Anglo- American law” as well as Chinese law.Using a wealth of primary and secondary materials, Conner provides ananalysis of the school’s comparative program, exploring not only its his-torical significance but also its practical relevance to legal education in thePRC today.

Natalie G. Lichtenstein’s article, “Law in China’s Economic Develop-ment: An Essay from Afar,” attempts to examine what role law has playedin China’s on-going transformation from central planning to a marketeconomy. Drawing on her experience as a Chinese law expert with theWorld Bank, Lichtenstein surveys major developments in China’s eco-nomic laws and legal institutions during the last twenty years. By placingChina’s experience in an international and comparative perspective, theessay offers insightful observations on the relationship between contem-poraneous economic development and legal reforms in practice.

The article by Jamie P. Horsley, “A Legal Perspective on the Develop-ment of Electoral Democracy in China: The Case of Village Elections,” ex-plores the political origins and drafting of the PRC Organic Law on Vil-lagers’ Committees, as well as the underlying concept of village electoraldemocracy. By tracing the development of the legal framework of villageelectoral democracy, Horsley reveals that it is neither a recent foreign im-port nor designed merely to placate foreign critics of China’s humanrights record. On the contrary, the author maintains, the development ofvillage electoral democracy in China is a seriously intended, hotly debated,and continually evolving legislative accomplishment.

Albert H. Chen’s article, “The Concept of ‘One Country, Two Systems’and Its Application to Hong Kong,” explores the history and developmentof the important concept of “One Country, Two Systems” as well as its im-plementation in post-1997 Hong Kong. A substantial modification ofChina’s original model of a centralized, unitary state, the “One Country,

Introduction 5

Two Systems” model is essentially an outgrowth of the PRC’s distinctivepolitical and legal circumstances and constitutes a significant break-through in the PRC political and legal system.

“The Rule of Law in Taiwan: Culture, Ideology, and Social Change,” byTsung-fu Chen, provides a useful account of how Taiwan in recent yearshas made substantial progress in establishing the rule of law. A result ofTaiwan’s recent social and political change, its development in this respectis, to a large extent, due to the political demands of the better-educatedand more affluent members of the Taiwanese society. As Chen indicates,however, the rule of law is not adequately understood or supported by theother sectors of Taiwan’s society, who tend, under the influence of tradi-tional Chinese culture, to de- emphasize the protection of individualrights. Because of their cultural affinities, the situation in Taiwan can ob-viously shed light on future developments in mainland China.

In honor of his pioneering contribution to the field of Chinese legalstudies, this volume is dedicated, with affection and gratitude, to ProfessorJerome A. Cohen, our teacher, friend, colleague, and, above all, exemplar.


1

Trying to Understand the Current Chinese Legal System

William C. Jones

I. The Imperial and Republican Background

Chinese law is very easy to misunderstand. It is not at all certain that any-one—Chinese or foreign—understands it. The reason for this is that whenwe think about law, we think about a formal legal system of the westerntype. We look at China and expect to find such things as a law of con-tracts, a bench and bar, and all the other paraphernalia that we associatewith law. At present, one can find such institutions in China, but they aremodern imports. Until recently, they did not exist. What one found in-stead—and still finds—quite easily, are a vast number of statements byChina’s most prominent thinkers, notably including Confucius, that showgreat hostility to what we think of as law. As Confucius supposedly said:“In hearing cases I am as good as anyone else, but what is really needed isto bring about that there are no cases.”1 More recently a Hong Kong bar-rister of Chinese descent remarked to Professor Jerome A. Cohen, whenthe latter was beginning his researches into Chinese law:

The trouble with you Westerners, is that you’ve never got beyond that prim-

itive stage you call the “rule of law.” You’re all preoccupied with the “rule of

law.” China has always known that law is not enough to govern a society.

She knew it twenty-five hundred years ago, and she knows it today.2

It was possible to conclude from all this—and in the early days of Sino-European relations many people, both Chinese and foreign, did con-clude—that China did not have a legal system. This was quite untrue, butit is easy to see why the belief arose. Nor has the situation changed all thatmuch. Although on paper modern China has all of the apparatus of a

7

western legal system, it is a country that is still heavily influenced by tradi-tion, and any study of Chinese law that concentrates solely on the statutesand institutions copied from the West is bound to come to wrong conclu-sions. There still has to be a search for the elements of a legal system quiteunlike ours.

Probably the most important aspect of Chinese traditional law that hasto be understood is the fact that during the dynastic era it was a systemthat was totally uninfluenced by the West. During that period China al-ways had a land mass and a population that were as large as or larger thanthose of western Europe. Moreover, the bulk of the area that we call Chinawas united into one highly centralized political unit in the third century.., by the first emperor, Qin Shi Huang-di. It never suffered the kind ofpermanent disintegration that occurred in Europe after the fall of Rome.It remains today, in terms of internal and external boundaries, language,and, to a certain extent, governmental organization, very much the Chinaof 2,000 years ago. By and large, it was a self-contained society that influ-enced its neighbors, such as Japan and Korea, and absorbed and sinicizedits conquerors, such as the Mongols and Manchus. It was difficult for out-side institutions to penetrate. Thus at the time when contacts with theWest became extensive in the eighteenth century, China was a very ancientand highly advanced society that had developed pretty much on its own. Ithad its own system of law which had developed along with the other as-pects of Chinese society, and seemed to work well enough. That is a veryhard thing for westerners to take in. They are used to the cultural domi-nance of western institutions. Just as western missionaries took it uponthemselves to correct the defective Chinese system of religion, western ju-rists have felt impelled to show the Chinese what a proper legal system islike. Initially, the Chinese themselves were, on the whole, ungrateful for allthis help. They eventually succumbed to western arguments—backed, asthey were, by western arms—and established a new European style legalsystem, but they have never been entirely convinced. Traces of the legalsystem perfected in the Tang dynasty (618–906 ..)—unlike anything wethink of as a system of law—are very much with us.

If one turns to the institutions of this system, the most striking aspect isits intimate connection with the administrative system of the central gov-ernment. The system of government that developed in China after its uni-fication in the third century .. consisted of a strong central governmentheaded by the Emperor, who ruled through a highly centralized bureau-cracy, mostly selected, in the later dynasties, by competitive examinations.

8 w i l l i a m c. j o n e s

This continued to be its structure until the end of the Empire in 1911. TheEmperor’s power was, in theory, absolute. There could be no doctrine ofseparation of powers. The lowest ranking officials who represented thecentral government at the bottom level—the district magistrates—were,in effect, the Emperor in little. Each of them exercised all of the power ofthe state in collecting taxes, providing for defense, carrying on publicworks, conducting religious ceremonies and supervising the local exami-nation system for entry into the civil service, deciding lawsuits, etc. Ofcourse these actions were subject to review, and the magistrates were sub-ject to strict rules in the exercise of their powers. Nevertheless as will bediscussed in somewhat more detail below, deciding cases was simply oneadministrative task among many. It was, indeed, an aspect of the magis-trate’s general charge to keep order. The magistrate adjudicated cases, buthe was not a judge as we understand the term. He was the official who car-ried out all governmental functions at the local level, and adjudication wasone of them.

From the Chinese point of view, the central element of their legal sys-tem was a body of rules promulgated by the Emperor. The title of this col-lection is usually translated by the word “code.” Each dynasty had its owncode which would be called the Great Ming Code, Qing Code, or what-ever, according to the name of the dynasty. Since the formal legal systemwas an integral part of the governing apparatus of the Empire, when theEmpire collapsed in the early part of this century, the legal system disap-peared along with everything else. Prior to that, there is clear continuityfrom the Tang dynasty to the end of the Qing (1911), and there is everyreason to suppose that the tradition stretches back many centuries—pos-sibly many millennia—before the Tang. During most of the period forwhich there is a clear documented tradition (653–1911) the Chinese legalsystem governed a territory and a population that was as large or largerthan that governed by Roman law, either when it was the law of theRoman Empire or when it became the dominant law of medieval andmodern Europe. In addition to governing China itself, China’s legal systemformed the basis of the formal legal systems of those nations which weresubject to its influence: Korea, Japan, and Vietnam. It was only whenRoman law spread out beyond Europe and the Mediterranean that itbegan to exceed Chinese law in importance.

Thus the importance of Chinese law is clear. The difficulty is findingout how to study it. The materials available for its study are vast. In addi-tion to the codes themselves, there were annotations to the codes, and

The Current Chinese Legal System 9

many other collections of statutes and regulations are still extant. Thereare also thousands of decisions in cases that arose under the codes, in ad-dition to some studies of customary law in which elements of what wewould call family and commercial law can be found. Finding a waythrough the material is a daunting task. There are no systematic legal trea-tises as we understand the term. The Chinese had commentaries and whatare sometimes called treatises, but these do not help one to understandtheir system. As a nineteenth century French student of the system ob-served:

[N]one of the these collections [treatises], to my knowledge at least, con-

tains an analysis of the whole of Chinese law or has tried to deduce from it

any theory whatsoever. Each commentator picks over the law, phrase by

phrase, and tries to bring out some comparison, to find some unforeseen

circumstance, and most of all, to justify the provision of the law. Alongside

certain remarks which show a great exactitude in criticism, there are often

platitudes and wretched inanities.3

One possible solution to the problem is to regard the code itself as atreatise of sorts. If one considers the Qing Code, the final code in the tra-dition, then it is clear that its structure is the product of a great deal ofthought. It is tightly arranged. The rules themselves show much refine-ment. There are many cross references, for example. Hence it comes closeto constituting a scientific analysis of what the Chinese regarded as law. Tobe sure, it is, in part, a collection of rules that deal with particular fact sit-uations, sometimes in great detail. Nevertheless, it is not just a com-pendium of rules, and the rules themselves have been refined and harmo-nized to a considerable degree. General principles have been factored out.It is, in other words, a true code, and as such can be taken to represent theconsidered view of some of China’s leading jurists as to the ways to thinkabout law, to think about what law is. It showed the way to analyze legalproblems and provided methods for applying legal rules to them.4

In some ways, that seems to have been the function of the Code. Atleast by the end of the dynasty, it was not the direct or immediate basis ofdecision for most cases (although it has, as indicated, some fairly detailedrules). Rather, the cited authority would more than likely be a li, a wordusually translated as “sub-statute,” though “codified precedent” might bebetter. The li were detailed rules that were normally based on decisions orinterpretations by officials at the highest level of the central government,and were printed following the article of the Code to which they referred.


If there was an applicable sub- statute, it would be applied instead of thestatute. There were, in addition, as indicated above, a number of statutesand regulations outside the Code. But in this the situation is not so differ-ent from that in western law. The French Civil Code is probably the directauthority in only a small number of present- day cases (despite the tech-nique of decision-writing of the Court of Cassation, which might lead oneto think it was [the authority in most cases]).5 Precedent plays an enor-mous role, as do the opinions of eminent authorities and, on occasion,other statutes and regulations. Nevertheless, the Code remains at the heartof the system, and serves as the basis for organizing instruction in the civillaw. It seems reasonable to make a similar claim for the Chinese codes likethe Great Qing Code.

The Conceptual Scheme of the Code Compared to Those of the West

One of the principal difficulties in studying the Code is learning how tolook at it as the Chinese did, or at least not to look at it with expectationsformed by exposure to western ideas about law. To avoid this problem, it isnecessary to know something about the legal system of which the Codewas a part, for the system is so different from what we are accustomed tothat it is sometimes hard to realize that it is a legal system. One of the as-pects that especially strikes the western observer is that the Code andhence the law are not much concerned with the disputes of private indi-viduals, nor with the notion of “rights.” We are accustomed to think that alegal system is primarily a social institution within which “persons”—pri-vate individuals, or groups of such individuals, or even the state—canmake claims against other “persons” and have these resolved by a neutraltrier of fact and law—the court. Normally the persons or parties will berepresented by lawyers. We also tend to think that the laws applied by thecourts will deal to a very considerable extent with private law, with torts,contracts, property, and the like. An organized bar, judicial independence,separation of powers, and some judicial review of administrative acts arealso institutions that we expect to see.

These are all aspects of the legal systems we are familiar with. To a cer-tain extent, they reflect the point of view of our law, and it is well to re-member what that is. It seems safe to say that it was formed by Romanlaw, and Roman law arose, after all, in a very small and predominantlyagricultural community with a weak government. As Professor W. Kunkel


points out, by the beginning of the fourth century .., when Roman lawwas developing, Rome was about half the size of modern Luxembourg.6 Asa consequence, the legal problems that Roman law dealt with in the for-mative period were what one would expect: the resolution of disputes be-tween private individuals that arose out of torts, simple contracts, andsuccession. In addition, there were problems of status, both because differ-ent groups of Roman society were sharply divided—patricians, plebeians,and slaves, for instance—and because Romans distinguished themselvesfrom the citizens of other Latin states, to say nothing of those from fartheraway. Although Roman society soon changed radically, the focus or pointof view of Roman law had been set. Thus Gaius, writing in the period ofthe Antonines (c. 161 ..), said, “The whole of the law observed by us re-lates either to persons or to things or to actions.”7 Yet the Rome of thattime was of enormous size and was headed by an emperor whose statusand power, despite the republican forms that still survived, approached, ifit did not surpass, those of the autocratic Chinese emperors. Gaius’ analy-sis was continued by the draftsmen of the Corpus Juris of Justinian, whosepower and system of government were in every way comparable to thoseof his Chinese counterparts. Nevertheless, the basic law of the Empire—civil law—continued to look at society from the point of view of individu-als and its basic concerns were those of individuals.8 Of course Rome hadmany statutes that dealt with governmental matters such as control of thebureaucracy, but civil law was the heart of the system.

This approach has been maintained in western law down to the pre-sent. Modern civil codes cover the same material as the Institutes of Gaius,more or less, and follow his scheme of analysis. Civil law is at the heart ofwestern law, and the influence of the approach is pervasive. Western juristsuse a model of the universe composed of discrete entities—persons—whocreate legal obligations by the exercise of their individual wills. They alsoassume that these persons can get their disputes resolved, if they wish to,by professionally trained judges. These “persons” are no longer human be-ings, but the central abstractions or figures of the legal system. They aresometimes called “rights-bearers,” and it is an accurate description. Eventhe state can appear as a “person” in a domestic lawsuit, and states are, ineffect, the “persons” of public international law, whose terminology andstructure are based on Roman private law.

The situation in China was radically different. By the time the legal sys-tem was formalized, the polity of China consisted of a highly centralizedgovernment headed by an absolute ruler who ruled by means of a bureau-


cracy. The primary obligation of every Chinese was to fulfill the duties as-signed him by the Emperor. All human activities had to be carried on so asto fit into his scheme for directing society. Consequently the imperial lawtook note of human activity only as it was perceived to affect imperialpolicies. It was natural that the primary focus of attention would be theactivities of bureaucrats in the performance of their duties, not the activi-ties of ordinary human beings in their private lives. As one of the Tangemperors, Li Shimin, is supposed to have remarked, “The wise emperorgoverns his officials, he does not govern the people.” In China the subjectmatter of Roman civil law was considered only when it affected the inter-ests of the Emperor.

Thus many aspects of marriage were dealt with, since marriage and thefamily system were basic to the polity.9 An institution that was similar tothe English mortgage, the dian, was given considerable space, presumablybecause it was important to know who owned land so that the govern-ment could collect the taxes on it (the provisions are included in the sec-tion on land taxes).10 Very little attention is paid to private matters. Thereis almost no treatment of contracts, for instance. This does not mean thatthe Chinese did not use contracts, or even that the magistrates did notdeal with them, but such matters were of no concern to the Code, andhence were not “law” as the Chinese understood the term. The matterswhich we deal with by means of civil law, especially contracts, property,and succession, were dealt with in a variety of ways in China. One was set-tlement by village mediation committees or guilds, depending on whatwas involved. It was even possible to bring an action on an obligation in asituation not covered by the Code before the magistrate.11 But none of thiswas “law” or part of the “legal” system. The actions in private matters be-fore the magistrate were not “legal” because they did not involve enforce-ment of the Code. “Law” was concerned with the enforcement of govern-ment policy. Thus over half the Code is devoted to the regulation of theofficial activities of government officials. For example, exceeding the num-ber of employees allotted to a particular office;12 failing to forward docu-ments promptly;13 or for a stable-keeper in the Imperial Stud to fail tohave his herd produce enough young.14

Such matters are dealt with in the West by internal regulations of gov-ernment offices. For example, in the United States, within the Navy De-partment, there are regulations that govern the transfer of goods andfunds within the Department as well as the assignment of personnel andthe way instructions are transmitted. But they are not regarded as being


part of the American legal system except on the rare occasions when theyare relevant to some action that is being brought in the regular courts,such as a wrongful discharge.

One consequence of the difference in points of view is that the cate-gories of western law are meaningless in China. One cannot speak of civillaw or criminal law. Civil law as the law which deals with the private con-cerns of citizens from the point of view of those citizens did not exist.There were no “citizens” for one thing, only subjects. More importantly,the law dealt with all matters from the point of view of the ruler. How dida matter concern him? The Code has often been described as a penal code.If by that it is meant that each article imposes a penalty, the statement iscorrect. But does the term “penal code” connote a body of law that dealswith such matters as breach of promise of marriage15 and the quality ofgoods produced and sold?16 So also for “administrative law” or the pub-lic–private law distinction, which are important categories we use toarrange legal rules. The entire system of law can be regarded as governinginternal administrative matters, so that it was entirely administrative law.Since there was no other system of law, however, what would it mean tosay that a rule is administrative? We can say administrative law as opposedto civil law, for instance. But in China there was simply law. In the sameway, all Chinese law was, in a sense, public, and yet it dealt, on occasion,with private matters. The distinction we make between the two areas didnot exist. Actually, it could not exist.

The point is that Chinese law has to be examined on its own terms.Categories of western law do not work. There was simply one body of“law.” The only categorization was the grouping of articles under thename of a board or ministry of the central government—Officials, Rev-enue, Rites, War, Punishments, and Works—to whose work they seemedmost closely connected. It makes no more sense to talk about Chinese civilor criminal law than it would to talk about U.S. Agriculture Departmentlaw when referring to the UCC (Uniform Commercial Code), even thougha number of UCC provisions are related to agriculture and some of theseare also dealt with by government regulation.17 But that would be a nat-ural way for someone trained in traditional Chinese law to think aboutour law. He would start with the administrative categories of the U.S.Code as the tools for analyzing law. In other words, the categories of Chi-nese law are meaningless in the United States.

Rather than try to fit Chinese law into western patterns, it would seemwise to try to approach Chinese law in the way the Chinese did if we can.


Otherwise there is the temptation to concentrate on matters that we rec-ognize as similar to our own ideas. There are many such areas in the Code,especially in criminal law and torts. Not only do they cover much the sameground (homicide, theft, battery, rape, trespass, etc.), the substantive ele-ments of the offenses are often almost the same. Homicide, for instance, isdivided into plotting a killing,18 killing intentionally but without previousplanning (as, for example, killing during an affray),19 and killing by mis-take.20 The asportation required for theft is similar to that required by ourlaw.21 There are many others. But that is not where the Chinese begantheir own analysis. The Code, which seems to have been at the center ofthe Chinese legal system, was, in form, a directive to the district magistrateto tell him when to punish and precisely what punishment to inflict in anycircumstances that were perceived by the state to be legally significant.That is, as injurious to the Emperor. The primary concern of the Code,therefore, was to make it clear to the magistrate what activities he was re-quired to punish, and precisely what penalties he was to impose.

Moreover, as mentioned above, the majority of the provisions were notonly part of a code addressed to magistrates to enforce as part of their ad-ministrative duties. They also concerned the behavior of officials on thejob. Thus while there are provisions that deal with the private concerns ofindividuals such as a wife cursing her husband’s relatives,22 or mortgageesrefusing to allow redemption,23 and the like, there are far more that dealwith such matters as the conduct of the great sacrifices by officials24 ortheir failure to discover the theft of grain from government warehouses.25

The feature that seems to be common to all of the activities that the Codedealt with is that they were significant to the activities of the governmentor Emperor.

Our law has grown outward, as it were, from the concerns of individu-als or “persons.” It fulfills large social purposes, but it does so indirectly bydealing with the affairs of individuals, largely from their points of view. Itcan be argued that the stability of contract relations and the enforceabilityof contracts are essential for a society’s economic development. Indeed,such arguments are often made. Contract law is, nevertheless, primarilyconcerned with providing a way for persons to ensure that their decisionsregarding matters that interest them will be enforced. As the interests ofindividuals are served, societal interests get an indirect benefit.

In China, precisely the reverse was the case. The state promulgated lawsto make sure its interests were advanced. As this was done, the interests ofprivate individuals or groups of such persons were often protected as an


indirect result. This difference was indicated not only by the content of thesubstantive law, but by the nature of the legal proceeding. There were noparties in our sense. There might be an accuser, and there was certainly anaccused, but the magistrate was in immediate and total control, and hewas concerned with protecting and advancing the interests of the state.Moreover, he was at the very bottom level of a bureaucratic pyramid. Thecases he could decide on his own were very few. In any significant case, hecould only propose decisions which could be (and often were) revised orreversed by superiors. Thus he was not a judge in our sense. He was themeans through which the Emperor governed at the lowest level, and heexercised all of the powers of the state at that level. As one noted authorityhas written:

He was the judge, the tax collector, and the general administrator. He had

charge of the postal service, salt administration, pao-chia, police, public

works, granaries, social welfare, education, and religious and ceremonial

functions. His over-all duty is summed up in the Ch’ing shih kao (Draft his-

tory of the Ch’ing dynasty):

A magistrate takes charge of the government of a district. He settles

legal cases, metes out punishment, encourages agriculture, extends

charity to the poor, wipes out the wicked and the unlawful, promotes

livelihood, and fosters education. All such matters as recommending

scholars [to the court], reading and elucidating the law and imperial

edicts [to the public], caring for the aged, and offering sacrifices to

the gods, are his concern.

A magistrate, although a civil official, also had to defend the city in an up-

rising or a foreign invasion. Failure to do so would incur dismissal and

physical punishment.26

Deciding legal cases or what we call lawsuits or prosecutions was one ofhis two most important tasks (the other being the collection of taxes), butthat is all. It was just one administrative task among many. Neither he northe superiors who reviewed his work were legally trained in a formal sensesince there was no formal legal training to be had, although they might, ofcourse, have picked up a good deal of legal knowledge on the job. Theywere, for the most part, career civil servants who were selected by compet-itive examinations based on the Chinese classics—essentially philosophyand literature. Law was not normally one of the subjects tested.27


Obviously, in such a system the proceeding was not left up to the initia-tive of private parties. The adversary trial which we regard as standard didnot really exist in connection with enforcing the Code. Instead, when themagistrate took jurisdiction over a case, he called in all interested partiesand interrogated them. If there was significant, real, non- testimonial evi-dence, such as a corpse, he went out to examine it. Finding the facts wasregarded as much more difficult and important than finding the law—something that the magistrate tended anyway to leave to his clerk. Therewere, in theory, no lawyers to perform the functions of either barristers orsolicitors.28 The magistrate made a preliminary decision, and it was re-viewed in exactly the same way that superior officials would have revieweda decision to reduce the area’s tax assessment because of natural disasters.That is, the review was simply a part of the system of bureaucratic control.Did the magistrate follow the proper procedures and guidelines? Did hereport in the proper way and give adequate reasons for his decision? Wasthis the right decision under the circumstances? The Chinese had elabo-rate rules for all administrative tasks, not just for those we call adjudica-tion.29

The proceeding could be quite dreadful for everyone, including thecomplainant. All persons concerned, including witnesses, were usually im-prisoned under appalling conditions pending final conclusion of the mat-ter.30 The innocent word translated “interrogate” often involved torture.The lightest punishment—beating—could be crippling or even fatal. De-spite this, the system seemed to function in a way the government foundfairly satisfactory for its purposes, and it was not so unbearable as to causethe populace to revolt. With minor changes, it survived for many cen-turies. Despite its horrors, it was a system that worked.

If we are to understand the law of imperial China, these are all mattersthat have to be kept in mind. Its centerpiece—the Code—was a body oflaw promulgated by a bureaucracy that was primarily interested in regu-lating the affairs of its own officials. It concerned itself with other mattersonly when they affected imperial designs. It was administered by the samecivil servants who, at the same time, administered all of the other activi-ties of government, from collecting taxes to supervising examinations forthe civil service. There were no facilities for training jurists and nolawyers to represent parties at the trial. The system was not based on theidea of rights and their enforcement. It was entirely within the control ofthe magistrates. And yet it constituted a legal system that was comparable


in its breadth and organization to western ideas of law as shown in theGerman Civil Code, for while it did not deal with much that would becovered in one of our civil codes, it also dealt with areas that we do not[address].

The Informal Legal System of Traditional China

This was the formal legal system of imperial China. Of course, there wasmuch more to what we would call the legal system of China than the for-mal system embedded in the Code. For example, though the Code did notdeal much with contracts or other commercial matters, the Chinese hadan active and sophisticated commerce. They had developed devices similarto negotiable instruments and had a number of business arrangementssuch as agencies and partnerships of a sort.31 It was apparently possible toget disputes over these matters resolved by magistrates, but the thrustseems to have been to use other dispute-settling devices such as mediationby village elders and guild procedures. There were even persons who per-formed many of the functions of our lawyers such as the drafting of com-plaints and appeals.32 There was an elaborate body of what we would callcustomary law that dealt with such matters as tenancy, debts, family law,etc.33 The Chinese would not have thought of such matters as legal, butthey are, of course, the sort of thing western law concerns itself with.

Thus the traditional legal culture of China consisted of a formal legalsystem that was an integral part of the system of government, differentfrom ours in every way, and an informal legal system that dealt with manyother matters including much of what we call civil and commercial law.This culture was destroyed by China’s contacts with the West in the nine-teenth century. Initially the Chinese government refused to let Europeansenter China or do business with it except in an extremely narrow area ad-jacent to Canton. The Europeans insisted on being permitted to trade in-side China and carried on a series of wars to achieve their aims. The mostimportant was the group of wars called the Opium Wars between Britainand China of 1839–1842 (so called because much of what Britain wishedto trade was opium). As a result, China was forced to permit foreigners toenter and trade—and to teach the Gospel, since Christian missionariesbenefited from the opening. Once they got in, the Europeans did not wishto be subject to Chinese law since they regarded it as barbarous. Accord-ingly they forced the Chinese to let them have their own courts both forcriminal and civil matters. This was the principle called extra-territoriality.


There were, in addition, certain areas in important Chinese cities, notablyShanghai, that were, in effect, self-governing foreign enclaves in China.This meant that in parts of China foreign legal systems were functioningin place of the Chinese. As a result of these events, there was a movementto establish a western legal system in China. The motives were mixed. Inpart this was perceived as a way of getting rid of extra-territoriality. Inpart, however, it was the result of the belief by some Chinese intellectualsthat European legal systems was superior to their own—that they weremodern whereas the Chinese system was backward. Elements of that atti-tude persist to the present day.

During the last years of the Qing dynasty, there were efforts to draft lawcodes that reflected a western influence. Chinese began to go abroad tostudy western law, not only in Europe and America, as might have beenexpected, but also in Japan, where western-style faculties of law were wellestablished and western codes had been adopted.34 Western style lawschools began to develop in China,35 and of course western law was ap-plied in the special courts used by foreigners. This process accelerated after1911.

In that year a combination of forces that had been developing for manyyears erupted in a revolution which was led by Sun Yat-sen. This destroyedthe Empire and established a republic. The apparatus of the governmentalsystem of the Empire did not disappear immediately, any more than theEmperor himself did. He remained in the Palace for several years. Simi-larly, the Code continued to be enforced by the magistrates in those areaswhere they still functioned. But the imperial system crumbled away quiterapidly as the central government ceased to have much power. After agreat deal of disorder and civil war, the Kuomintang (KMT), the ChineseNational Party, under the leadership of Chiang Kai-shek established nom-inal control despite the persistence of Japanese incursions, warlords, andan active Communist movement.

The new government presented a curious picture. The governmentalinstitutions and constitution were essentially modeled on those of theUnited States, modified by Sun Yat-sen to reflect his sense of China’s needsand traditions, as well as by his perception of American progressivism ofthe turn of the century (the initiative, referendum, and recall are embed-ded in his scheme). The government was run, on the other hand, by aparty that was modeled on the Leninist version of a communist party, al-though it did not share the Marxist ideology of such a party. It was, in-deed, engaged in a bitter struggle with the Chinese Communist Party.36


As the Republican or Nanking government grew stronger, it attemptedto establish a western style legal system, in part to get rid of extra-territori-ality. In addition to establishing a system of courts, it also enacted a seriesof western style codes. These are the so-called Six Laws—the Constitution,the Civil Code, the Criminal Code, the Codes of Civil and Criminal Proce-dure, and administrative law.37 These Six Laws served as subject-matterheadings under which other laws could be placed. For example, the com-pany law (corporation code) was placed under the heading Civil Code.Like much of western law adopted by China, this idea was taken fromJapan. In both countries the compendium of the nation’s laws has beencalled the Six Laws (China following Japan).

These codes were all much influenced by western law. Indeed, theywere, for the most part, merely copies of Japanese laws, which in turn werepretty much copies of western codes, usually those of Germany. Legal edu-cation was also organized after the European model. Both in the law de-partments of state universities, such as Nanking Central University, and inprivate universities (usually western missionary institutions), the westernstyle codes were explicated in the European manner—though sometimesaccording to the American case method. It is very hard to say what the ef-fect of all this legal activity was. It seems certain that it had no effect onthe lives of the vast majority of Chinese who were peasants (over 80 per-cent), and who were, for the most part, illiterate. That is, they lived thelives that had always been theirs. Mostly concerned with survival, theyarranged their family affairs as they always had, made arrangements withor punished local criminals, and tried to avoid the government and its taxcollectors as well as the anti-government forces, whether Japanese or do-mestic. Since many urban Chinese had got used to a western legal systembecause of their dealings with westerners, and in some cases because theylived under it in the foreign concessions, there was some use of the newwestern system in civil as well as criminal matters. However, the National-ist government was never in control of all of China, and in 1937, when theJapanese invaded China, they lost many of the areas and cities that hadbeen theirs. When the war with the Japanese was over in 1945, the civilwar between the Nationalists and the Communists, which had never reallyceased, broke out in full force. The re-establishment and strengthening ofthe pre-war legal system was obviously not a very high priority although anew constitution was promulgated. The war was won by the Communistsrelatively quickly in 1949 and one of the first acts of their new govern-


ment—the People’s Republic of China—was to repeal all the laws of theold Nationalist government.38

Of course, just as in the case of the fall of the Empire, the old systemdid not really cease to exist. Some Nationalist judges remained in place forseveral years after Liberation (1949) and presumably applied the same lawthey had been applying before, except where new rules were clearly an-nounced.39 In the same way, the old law continued to be taught in the lawschools for a time. What else was there to teach?

Gradually the judges from the old government were purged, and theprofessors were either purged or retrained. For all that appeared, there wasa tabula rasa and the new legal system of Maoist China could develop un-trammeled by the past. It is certainly true that the only overt references inthe new China to the law of the old were negative, but it is not easy to es-cape one’s past, particularly for Chinese, and there was much of old Chinahidden in the new, whether the new leaders knew it or not.

The most significant constant was the nature of the Chinese govern-ment. It remained an autocratic, bureaucratic, centralized system whichfaced the same problems Chinese governments had always faced—thosearising from attempting to govern a huge area with an enormous popula-tion, large portions of which were always in danger of starvation. Thewhole society was organized to fulfill the purposes of the central govern-ment. Individuals were subjects who were to do what they were told so thepurposes of the center could be fulfilled. There was no concept of rights orseparation of powers. Of course there were enormous differences as well.The structure of society was indeed revolutionized. The power of the tra-ditional dominant power at the local level—the landlords—was broken.Even the position of women was changed—albeit mostly on paper at first.The goal of society became industrialization instead of the administrationof a static agricultural society. Still, there was much that had not changedand that significantly affected the nature of law in the new China. The in-fluence of the past was not limited to the traces of the Empire. The Repub-lican period had also left its mark. After all, what educated people thoughtof when they thought of law was the Six Laws and the system that en-forced them.40 To be sure, educated people were a very small proportion ofthe whole Chinese population, and many—perhaps most—of the men atthe top of the new government had very little education. Almost none hadstudied law. Still, many of those who had such knowledge survived, andremained in China, and they were clearly used by the new government to


help frame the new legal system. They became quite visible after thechange in policy that resulted in the formation of a completely differentsystem after 1978. Thus the China that began on October 1st, 1949, hadwithin it two legal traditions that had not been destroyed. One was theconcept of law as an aspect of the government of a centralized bureau-cratic autocracy. This is not to say that anyone in China consciouslythought of law in this way, but this approach to law was inherent in thesystem of government which the Communists inherited. The second wasthe western concept of law, a system based on individual rights and ad-ministered (in theory) by impartial professional tribunals separated fromthe administration. To be sure, this system was overtly rejected by theCommunists when they took power, but to the extent that they thoughtabout legal systems, this was what they had in mind. They had adopted thewestern definition of a legal system while rejecting the system itself.41

II. Law in Mao’s China

While the traces of the imperial Chinese legal tradition and that of the Re-public of China are clearly present in the legal system of the new regimethat arose after 1978, the most obvious influences are those of the Maoyears, 1949–1976.

When the Communists established their new government in 1949, oneof their first acts, as observed earlier, was to repeal all of the laws of the Re-public of China. This did not mean that there were no laws thereafter. TheCommunist Party of China had controlled substantial areas of China—chiefly the so-called base areas in Shaanxi—for over two decades. Thus ithad its own system of law that had been developed over this time. How-ever, the parts of China that it had controlled—particularly for the fifteenyears prior to Liberation—were in the more remote regions of the country.Consequently, their legal system did not deal with many of the problemsfaced by the government of a densely populated area with significant in-dustry and trade and large cities. To control the entire country, it was ap-parently felt to be necessary to adopt the traditional Chinese device of acentralized bureaucracy, with the consequence that many characteristics ofthe imperial government remained. But there were also some very novelinstitutions that the Communists had developed in the base areas and con-tinued to use. In addition, they began immediately to enact new legislation.


The important new element which shaped the new institutions andcaused changes in the old was the ideology of the Chinese CommunistParty. It is usually called by the Chinese, Marxism- Leninism, Mao ZedongThought. It could be called Maoism since it is, in effect, the adaptation bythe Chinese Communist Party, under Mao’s leadership, of Marxism-Leninism. Marxism in any form is a very complicated doctrine and this isnot the place to attempt to give a detailed exposition of Mao’s theoriesabout it. What is said here will be crude and over-generalized, but it has tobe remembered that, at least in its early years, very few members of theChinese Communist Party had anything but a very rudimentary knowl-edge of the subject. Many of them could not read. Consequently, Marxistdoctrines were expounded to them in simplistic terms.

What seems to have been the most important basic theory was the be-lief that there were laws that govern human society that are quite as defi-nite and demonstrable as the laws of physics, and that these laws hadbeen discovered. To begin with it has to be realized that the life ofmankind is a linear process, not a static reality, nor even a cyclical move-ment. It is in constant flux. The key to the changes that occur in society isfound in the “productive forces.” As these develop, products in excess ofneed appear and some individuals appropriate the product of the work ofothers. One well-known commentator, Leszek Kolakowski, summarizes itin this way:

The starting-point of human history from the materialist point of view is

the struggle with nature, the sum total of the means employed by man to

compel nature to serve his needs, which grow as they are satisfied. Man is

distinguished from other animals by the fact that he makes tools: the brute

creation may use tools in a primitive way, but only such as they find in na-

ture itself. Once equipment is perfected to the extent that an individual can

produce more goods than he consumes himself, there is a possibility of con-

flict as to the sharing of the excess product and of a situation in which some

people appropriate the fruits of others’ labour—that is to say, a class society.

The various forms that this appropriation may take determine the forms of

political life and of consciousness, i.e. the way in which people apprehend

their own social existence.42

As a result of the productive forces and the excess they create, “relationsof production” arise. They form the “base” of Marxist analysis. ProfessorKolakowski continues:


We thus have the following schema. The ultimate motive force of historical

change is technology, productive forces, the whole of the equipment avail-

able to society plus acquired technical ability plus the technical division of

labour. The level of productive forces determines the basic structure of the

relations of production, i.e. the foundation of social life. (Marx does not re-

gard technology itself as part of the “base,” since he speaks of a conflict be-

tween productive forces and the relations of production.) The relations of

production comprise, above all, property relations: i.e. the legally guaran-

teed power to dispose of raw materials and the instruments of production

and, in due course, of the products of labour. They also include the social

division of labour, wherein people are differentiated not by the kind of pro-

duction they are engaged in, or the particular phase of a production

process, but by whether they take part in material production at all or per-

form other functions such as management, political administration or in-

tellectual work. The separation of physical from intellectual work was one

of the greatest revolutions in history. It was able to occur because of the so-

cial inequality which permitted some men to appropriate the work of oth-

ers without taking part in the process of production. The volume of leisure

thus created made possible intellectual work, and thus the whole spiritual

culture of mankind—the arts, philosophy, and science—is rooted in social

inequality. Another component of the “base,” or the relations of production,

is the way in which products are distributed and exchanged between pro-

ducers.43

These relations of production then produce the “superstructure” of so-ciety, which includes law. As Professor Kolakowski explains:

The relations of production further determine the whole range of phenom-

ena to which Marx gives the name of superstructure. This includes all polit-

ical institutions, especially the state, all organized religion, political associa-

tions, laws and customs, and finally human consciousness expressed in

ideas about the world, religious beliefs, forms of artistic creation, and the

doctrines of law, politics, philosophy, and morality. The principal tenet of

historical materialism is that a particular technological level calls for partic-

ular relations of production and causes them to come about historically in

the course of time. They in turn bring about a particular kind of super-

structure, consisting of different aspects which are antagonistic to each

other: for the relations of production based on appropriation of the fruits

of others’ labour divide society into classes with opposing interests, and the

class struggle expresses itself in the superstructure as a conflict between po-


litical forces and opinions. The superstructure is the sum total of the

weapons employed by the classes fighting one another for a maximum

share in the product of surplus labour.44

When the relations of production thwart the development of the forcesof production, revolution has to result. This occurred in the transitionfrom feudalism to capitalism.

Thus legal institutions and legal relations are, in essence, ephemeraland simply a function of the base. They are elements of the class strugglecreated by the class that controls the means of production in order tomaintain its position. As the class struggle progresses, and a new classtakes over, the institutions will change to reflect the desires and needs ofthe new rulers.

Under this view, the problems of individuals must always be regardedas simply aspects of the state of society at that time. Thus every contractthat is entered into is simply an event in the constant effort of the domi-nant class of that period to perpetuate its control of society. Even con-tracts between members of the bourgeoisie are aspects of that class’s con-stant struggle to suppress the proletariat. Since the movement of history isto finish the class struggle by establishing communism, there can be nosuch concept as an inviolable right in the traditional western sense. Theonly real “right” that existed at this stage of history was the right—and in-deed the duty—of the proletariat and its instrument, the CommunistParty, to eliminate the domination of the bourgeoisie and establish the so-cialist system. Crime is essentially a symptom of a defective society. Whenthe society is completely revolutionized, it will disappear. In the mean-time, the behavior which we call criminal is eliminated by eliminating theperson guilty of it, or by getting him to see that his behavior is harmful tosociety, and thus to himself, since he exists as an aspect of the total society.Many oppressors can be made to cease their anti-social behavior by seeingwhere their interests really lie and why they have behaved as they did.

This doctrine, if believed, will obviously have an enormous influenceon society. Not only did Marxism, as the Chinese understood it, effectmany changes in attitude toward traditional institutions that caused themto disappear or suffer radical change. At the same time it provided a sortof glue that kept society from falling apart. The governing ideology helpedthe Chinese to form new institutions to replace the old and deal with newconditions. Nowhere was this more evident than in the field of law. Marx-ism required the elimination of the old system, but at the same time it


provided a conceptual framework for the construction of a new one.While it is perfectly possible to retain the appearance of a bourgeois legalsystem—courts, codes, lawyers, etc.—in the period of the transition tocommunism, the system will, in fact, have changed radically. Perhaps themost important thing to change is the notion of permanence. Since everysocial and governmental institution is simply a device for effectuating thecontrol of the ruling class, none has any independent existence or validity.Due process and all the apparatus of human rights protection may be pre-served or established if the existence of those institutions is perceived bythe Party to be in the interest of the revolution, but if they do not assistthat process, they will not be permitted to exist. Thus it would be possibleto have the right to counsel, the right not to be forced to incriminate one-self, and a right of appeal before an independent judiciary. As a matter offact, many of these concepts are embodied in the formal legal system ofpresent-day China. Of course they do not mean much in practice, but it ispossible to conceive of a communist society in which such a system wasoperative for a significant period of time.45 Indeed, there seem to havebeen some tentative moves in that direction in China in the late 1980s.They were, of course, brought to a halt by the Tiananmen Massacre ofJune 4th, 1989, and its consequences.

In the field of private law, it would be possible to permit private prop-erty rights of any kind and to require the state to go through a formal ex-propriation proceeding and make compensation before interfering withthem. But it is possible at any moment to change the rules. If it is regardedas harmful to the revolution to recognize private ownership of Blackacreand the state’s duty to compensate the owner for expropriation, then thisright will not be recognized, and there will be no compensation. If en-forcement of a contract right such as a right to demand repayment of aloan is regarded as not useful, the right will not be enforced.46

If, on the other hand, it is determined that after several decades ofdenying or severely limiting property and other “bourgeois rights” (as theywere called), it would be useful to restore them in whole or part in orderto encourage industrialization, then they will be restored. This is preciselywhat has happened in China. Initially there was land reform which tookland away from landlords and rich peasants and gave it to poor and mid-dle peasants. Each remained an individual proprietor. Then all landownerswere forced to go into cooperatives, though they retained title to theirland. Finally, all the agricultural land was collectivized. At times, duringthe period of collectivization, farmers were permitted to have small indi-


vidual plots, and at other times they were not. Shortly after the death ofMao, a new movement developed to decollectivize the land and redistrib-ute it to individual families, usually by means of long- term leases withsome (though by no means total) restrictions on transfer. Indeed long-term leases have now been extended to urban areas and restrictions ontransfers in the case of agricultural leases have been eased. But in theorythe whole system of property rights could be changed at any moment. Asmentioned previously, in the period just before and after Liberation, debtsowed by peasants to landlords were canceled. Now, with the revision ofthe system of agricultural landholding and the promulgation of a civilcode, it would appear that such debts can be created again. What will hap-pen to them next year is anybody’s guess.

This result is to be expected in any system operating under a Marxistideology. There was, however, a special characteristic to Chinese Marxismor Maoism. This is that the class struggle was to be carried out primarilyin the mind or consciousness of the individuals. To state the matter in veryover-simplified terms, the forces of history were on the side of revolutionand the establishment of socialism. Consequently, nothing could preventthe victory of the Communist Party, but its progress could be slowed by afailure to realize this fact. If those who represented the future—the work-ers and peasants—could be brought to realize what was happening, andhow they would be benefited by the establishment of the new society, theywould abandon their old ways and thinking and nothing could stand intheir way. If, on the other hand, they failed to understand what was hap-pening, they could impede its progress temporarily. It was, moreover, nec-essary to formulate and execute plans for dealing with immediate prob-lems which had to be solved in order to advance the cause.

It seems to have been a firm conviction of the Maoist Party that the waynot to bring the revolution about was simply to inform the workers andpeasants (to say nothing of the Party members or members of the exploit-ing classes) of the situation and tell them what to do. They had really tounderstand the situation and want to take whatever action was necessary.It would seem at first blush that the objective steps that were taken—theredistribution of land and the establishment of collectives, the taking ofenemy positions by guerrilla troops composed of peasants and workers,and the like—would be the important results. This would seem to fit amaterialist view of life. Change the material circumstances of the base, andthe superstructure will change. This does not seem to have been the beliefof the Chinese Communists, however. It seems to have been believed that


the reality that had to be dealt with was consciousness. Hence the real taskwas thought reform.

Thought Reform

The principal technique for achieving and advancing the change in think-ing on the mass level was the campaign or movement (yundong).47 On anindividual level, the technique that was used was often called brain-wash-ing. The two are related. Both can be and were used to accomplish pur-poses that we would not recognize as legal, such as backing national poli-cies like Opposing the United States and Aiding Korea or eliminating pestssuch as flies. But they could also be used to deal with what we regard aslegal matters such as land ownership, crime, marriage, party discipline,and tax collection. Thus these techniques have to be considered in anytreatment of the Chinese legal system during the Maoist years. But there isa more important reason for considering them. The use of the campaignand thought control of individuals point to the necessity of completely re-structuring our concepts of law when dealing with the present Chineselegal system, as well as the traditional system discussed above. The ques-tion of who owns or can own Blackacre, or how interests in Blackacre aretransferred, or even the question what is to be done with A if he kills B,and how one determines if he did it, are not what the legal system isabout. The legal system is always about advancing the interests of the rul-ing class. All social institutions are aspects of the effort of the ruling classto benefit and protect itself. The only significant conflicts in society areclass conflicts. When the revolution has taken place and the revolutionaryparty has taken control, acting for the benefit of the workers and peasants,if society has not yet advanced to the stage of communism, society is to beorganized so as to advance the realization of that goal. The divisions ofbourgeois social analysis—religion, law, education, commerce and indus-try, etc.—do not necessarily reflect the way a Communist would view thesame society. To persist in looking for institutions that we regard as legal isto guarantee that we miss the point. Still less do the divisions we give tolaw have any meaning. Public law, private law, property, torts, succession,all have no real significance. Even if institutions are given the same namesthat we use, such as contracts, the meaning will be different.

What this meant in practice can perhaps best be seen in the vivid ac-count given by William Hinton in his book on what he describes as landreform in a north China village, Fanshen.48 It could just as well be de-


scribed as the recounting of a series of legal actions in a north China vil-lage during the period of the establishment of Communist Party rule, al-though the author would certainly never have done so. It would perhapsbe most accurate to describe it as a portrayal of the method whereby theCommunist Party established control in China and began the process ofbringing about communism.

The events in the book took place between the end of World War II and1948, prior to the establishment of the People’s Republic in 1949. The au-thor observed about half of the events he described. The material for theearlier portion of the book was derived for the most part by interviewswith Party cadres, and must, in consequence, be read with some reserve.Nevertheless, it seems to be a generally accurate account.

The story which he tells is a relatively simple one. Shortly after theJapanese surrender, in August 1945, elements of the Communist EighthArmy conquered the puppet army of Chinese which had collaborated withthe Japanese and occupied the village of Long Bow in Shaanxi Province. Atthis time, there was still fighting between the Communist troops and pup-pet armies or Japanese armies in nearby areas and the civil war with theNationalists was recommencing. A Communist dominated governmentwas established in the village and led a campaign against those who hadcollaborated with the Japanese. Those found guilty who were unable toflee were punished either by execution or beating. Their property was con-fiscated. This was called the Anti-Traitor movement. It was followed by ananti-landlord movement—the Settling Accounts movement—in whichlandlords who had been guilty of fraud and oppression had their land andother property confiscated and distributed to those who had been op-pressed or wronged. This was followed by a great expansion of the localCommunist Party and a second land reform, and then still a third cam-paign to force the gentry to disgorge the hidden wealth they were sup-posed to possess. These three campaigns all enforced what was called theMay 4 Directive on Land Reform issued by the Central Committee of theCommunist Party49 on May 4th, 1946, which provided for the confiscationof landlords’ property, though with a differentiation between those whohad collaborated with the Japanese and those who had not. Rich peasantsand even smaller landlords were to be drawn into the land reform move-ment.

This campaign was followed by the establishment of what were, in ef-fect, farming and labor cooperatives. This action was accompanied by theestablishment of a new progressive tax system. By 1948 both land reform


and the rule of the Communist Party were well established. Unfortunately,the new rulers were engaged in much the same kind of behavior as theirpredecessors (e.g., extortion, torture, favoritism, rape, etc.), and a workteam composed of peasants from the area who had been promoted towork at a higher level and students from a local university was sent to thevillage to investigate how the Draft Agrarian Law—a 1947 statute on landreform—had been carried out. They decided the work had not been donewell, so the whole village had to be reclassified according to class back-ground and wealth.

This was closely followed by a proceeding called “The Gate” for purify-ing the local members of the Communist Party by forcing them to face in-terrogation by a group formed of poor and landless peasants (non-Partymembers), who would decide whether or not they could remain in theParty. The meeting was orchestrated, if not completely controlled, by thework team.

Then the work teams from the different villages in the county werecalled to a county-wide meeting at which they examined each other con-cerning their shortcomings. They returned to reorganize the institutionsof local and village government such as the Peasants League and to con-duct still another reclassification of all the inhabitants of the village (land-lord, rich peasant, middle peasant, poor peasant).

A second “Gate” was then held to go over the Party members’ activitiesand attitudes and after that, another county-wide meeting was held toconsider the work of the work teams. Mr. Hinton’s book goes no further,but of course the process of land reform, to say nothing of Party purifica-tion, continued, and indeed it continues up to the present.

There is nothing peculiarly Chinese about punishing individuals fortreason and collaboration with the enemy, or about land reform, or evenpunishing for violations of party discipline. These are actions that havetaken place in many societies. There is not even any difference in the stan-dards that were applied. In the Anti-Traitor movement, the Chinese werelooking for evidence of giving aid and comfort to the enemy in time ofwar and purported to have found it in the cases of those who were pun-ished. There was a statutory formula for land reform and it was followed.The kinds of behavior that are regarded as violating Party rules would beregarded as requiring some kind of disciplinary action in most societies. Itis the way the proceedings were carried on and the purposes that the pro-ceedings were designed to accomplish that reveal the special characteris-tics of the Maoist system.


In the Anti-Traitor movement, for example, almost immediately afterthe Communist Eighth Army liberated Long Bow, a village governmentappeared that was manned by workers in the Resistance movement. It wasconnected with the Party even if not all involved were members of it. Thisgovernment took control of the town. They called a meeting of all the in-habitants of the village shortly after taking over, and brought variousmembers of the puppet government before this meeting to be accused ofvarious misdeeds committed during the Japanese occupation. Usually thecollaborators could be gotten to confess. Although the results of the “trial”were obviously pre-determined (there was no question that those accusedwere going to be punished and have their property confiscated), the mem-bers of the new people’s government made great efforts to get the villagersto participate in the accusations. It was not enough simply to punish theaccused, nor to have them punished after the public presentation ofcharges and evidence. It was necessary to have mass participation in theprocess of finding them guilty. Mr. Hinton stated that the whole commu-nity had to be mobilized to support the military (the civil war was in fullforce at the time) and to “settle accounts with the personnel of the puppetadministration.” Doubtless both of these aims were present, but a moreimportant one seems to have been to begin the process of arousing theconsciousness of the village to understand the revolutionary process thatwas under way and to realize they were a part of it.

Apparently one of the reasons the campaign was ended was that it wasbecoming counter-productive because in fact members of every class hadcollaborated with the Japanese. In all probability, indeed, most of the vil-lage had collaborated. If everyone who had collaborated was attacked,there would be no way of arousing the class consciousness of the massessince they would be attacking each other and not the “others,” the exploit-ing class. This point was emphasized in the next campaign—the SettlingAccounts movement—which was designed to eliminate the landlords byreducing rents and interest payments. The account of this campaign is in-teresting because it sets out the entire procedure of a campaign in consid-erable detail. This appears to be the procedure which was followed gener-ally throughout the Mao years.

The campaign began with all of the young men in the county who ledthe Anti-Traitor campaign being called to a meeting where they were to beeducated in the fundamentals of class relations and class consciousness.This was an effort to teach basic Marxism to people who were poorly edu-cated or even illiterate. The immediate desire was to reduce the power of


the landlords and to rectify past injustices of excess rents and interest. Itwas the first step in land reform. Getting rid of landlords served severalpolitical purposes. It got rid of a group that was strongly opposed to com-munism. At the same time, it attracted the interest and even the loyalty ofpoor peasants who benefited from distribution of the confiscated prop-erty. But much more important, the young Communists and prospectivecadres became somewhat aware of the nature of the class struggle andconsciously joined it. They had to learn, for instance, that is it was the sys-tem of ownership that was exploitative and wrong. It did not matter if aparticular landlord had been kind and honest. The system was wrong andhad to be changed. The cadres then returned to the village and organized aPeasants Association—that is, a group of those most oppressed by the oldsystem and thus most receptive of the new—to be the instrument of di-rectly applying the policy to the landlords. The cadres would bring thelandlords before the Peasants Association where they would be interro-gated (and sometimes beaten, although this was not supposed to happen).

The next campaign added an element which might or might not bepresent in campaigns generally: a statute which was to be enforced. It wasdevoted to reviewing land reform and putting it on a correct basis in ac-cord with the Draft Agrarian Law of 1947.50 The “law” came, however,from the Central Committee of the Party and there did not seem to be anydifference in the cases where there was a statute and those where there wassimply a policy.

The county party committee, on returning from the meeting where thenew law or policy was introduced, reviewed the material on land reform inthe county and decided that the reform was not complete; further, that thefault lay in the counter- revolutionary class origin of the local Party mem-bers. As pointed out above, a work team was appointed to correct the landreform and the Party in the village. The members of the work team whowere from the nearby university engaged in weeks of “education and dis-cussion, criticism and self-criticism. Every person in the University . . .made a survey of his or her own past, and examined his or her own classorigin.”51 This self-purification or criticism by the prospective leaders ofcampaigns was a constant during the Mao years.

All of the mass campaigns described in Fanshen and elsewhere thattook place throughout China before and after the period covered by thatbook, follow this model more or less. That is, a policy is determined by thecentral authority and is implemented by means of educating groups ofleaders at further and further removes from the top until the masses


themselves are induced to participate by intensive persuasion. The teach-ing is always by means of discussion. Everyone has to participate andprove that he understands the policy. If there is any internal resistance, itshould be externalized and then eliminated. The most important part ofthe method is the directed discussion so that everyone agrees verbally withthe result—frequently after criticizing his own previous resistance. Thereis usually an object or objects of attack. This tends to focus thinking.Campaigns to purify the thinking of members of the Communist Partyhave also been frequent. Arguably, the Cultural Revolution was simply agigantic version of the “Gate” that was used in Long Bow to purge thelocal party. It seems to have been the feeling that the leaders’ thinkingneeded special attention, and that an essential feature of these campaignswas an attack on them by the masses who are presumably not tainted by“feudal” or bourgeois thinking. This is consistent with the Maoist viewthat the basic problem in advancing the revolution is thought purification,not just the changing of objective conditions.

The campaign has been used to deal with everything from eradicatingthose who remained loyal to the Kuomintang (Chiang Kai-shek) govern-ment and rightist thinking, to improving conditions in a university li-brary.52 It could be national or local, of years’ duration or very brief. It isstill being used, notably in the effort to limit births. It was possibly thebasic procedural device—the equivalent of the trial—in the legal system ofMaoist China. That is, since the purpose of Mao’s legal system was to re-solve problems arising out of the class struggle, not to settle individual dis-putes involving personal rights, the campaign, which was the principal de-vice for accomplishing this purpose, was the equivalent for China of thetrial in our system.

Bureaucratic Control

The techniques of mass mobilization and thought control developed bythe Chinese were quite effective on the whole, and they fit the general aimof the Party. They seemed to be close to the sort of social regulation onewould expect in a country that was on the way to communism. They were,however, very time consuming. It was not really practical to arrange suchmatters as transportation, energy production, the distribution of food-stuffs, or the collection of customs duties by means of educational cam-paigns that would get everyone to understand (or purport to understand)what he was doing and then act in the way best suited to implement the


plan. To accomplish the varying tasks of government, from making surethat the 11:57 got in on time and that the switch was closed so that therewas no collision with the north-bound freight, to settling the relationshipamong the courts, procuracies, and people’s councils, it was much morepractical simply to issue orders. Since China was so large, it was also nec-essary to make use of a bureaucracy to carry out most programs. That is,orders would be issued by a particular ministry that heating in buildingsshould be reduced or eliminated, for example, and these would be trans-mitted through subordinate levels to local offices for enforcement. Reportswould then be sent back up.

The precise way in which this was done is not completely clear. One ofthe problems is that many of the statutes and regulations of China eventoday are classified as being for “internal use” (secret), and are not avail-able to foreigners or even to most Chinese. Those that are generally avail-able consist for the most part of “statutes,” “directives,” “regulations,” etc.of the central government,53 though it is known that there are many localregulations, as well. It would seem from what evidence we do have thatthere were at least two kinds of statutes: really general directives such as“Several provisions of the State Council regarding improvement of thefood control system”54 and very precise and narrow rules such as “Notifi-cation by the Ministry of Posts and Telecommunications on the regula-tions governing the time limits for refunds on money orders and formaking inquiries about them.”55 Even in areas that obviously could bethe object of a campaign such as “Notification of the Ministry of Agri-culture on the conscientious execution with revolutionary vigor of mea-sures to prevent epidemics and to eliminate plagues among pigs,”56 it wasalso possible simply to give instruction to local officials to organize cer-tain work. As a matter of fact, there were a number of statutes that regu-lated particular campaigns: for example, “Directive of the Central Com-mittee of the Communist Party of China on the development of anti-waste and anti-conservatism campaigns”57 or “Notification regarding themobilization of the masses to plant sunflower and castor seeds vigor-ously.”58

The feature which is common to all these laws, from those dealing withthe most important interests of the state to those concerned with relativelytrivial matters, is that they are almost entirely directed to governmental of-ficials, not to the public. The concept of a legal system that is primarilycomposed of directives to governmental officials to tell them what to dowas, as indicated, very much the mark of the legal system of imperial


China, although the rules of the People’s Republic are much more perva-sive, since the control of the whole society, especially the economy, ismuch greater than was that of the imperial government. It is also interest-ing to note that there is no differentiation made between what we wouldregard as very general statements of governmental policy or even philoso-phy and very detailed rules on such matters as “revising the interval ofyears between issuances of science awards.”59

This aspect of Chinese law is not commented on by the Chinese, yet itcontinues. Despite the enactment of a number of western style statutesthat are directed toward individuals, such as the General Provisions ofCivil Law, the great bulk of the legislation which is published in the Bul-letin of the State Council is like that of the Maoist period. That is, it is di-rected primarily to governmental units to tell them what to do.

The Formal Western Style Legal System

This is not to say that what we would recognize as a legal system did notexist in China. It did—on paper. Exactly how it functioned is murky butsome things seem clear enough. In the beginning there was a system ofcourts that was carried over from the Nationalist period even though thelaws of that government were all repealed. These courts continued tofunction in the early period after Liberation in the areas—principally largecities—where they had functioned before. In the initial stages of Libera-tion, it was necessary to retain not only the courts, but a number of theNationalist judges and to recruit new ones from the existing pool of lawschool graduates, although they were later replaced with loyal members ofthe Party. It is not clear how much they were used. Doubtless there weresome civil suits and some use of the courts for ordinary criminal matters.However, most treatment of crime, including the punishments, was han-dled by the Security Administration—the police.60 One of the chief visibleuses of the courts was to serve as the vehicle for the confiscation of foreignassets. Claims were filed against foreign concerns for back taxes, wages un-justly withheld from workers, fines for violation of regulations, etc. Thesewould normally exceed the value of the assets and hence the propertywould be sold to satisfy the judgment. The buyer was normally a state in-strumentality. The concern would often have to pay an additional sum be-fore its foreign personnel could leave.61 It is not clear just when the oldsystem disappeared, but certainly by the time of the first formal constitu-tion in 1954, the new system had been established.


On paper this consisted of a familiar hierarchical court system thatwent from a people’s court at the local level to the Supreme People’s Courtin Peking with two intermediate appellate courts in between.62 It is diffi-cult to say just how it worked, but it seems probable that in the criminalfield the “trial” was essentially the final formal step in an administrativeproceeding that took place within the Security Administration. It was usu-ally only a formality whereby a sentence already determined was formallyadjudged for the record, although it could be public if such a proceedingwas regarded as useful in educating the masses. In any case it simply con-firmed a decision that had already been made. Once all industrial, com-mercial, and agricultural property was nationalized, there could be nocommercial litigation unless the various state enterprises sued each other.This does seem to have occurred very often. There does not seem to havebeen any formalized system of arbitrating disputes among state enter-prises as there was in the Soviet Union.63 There was some civil litigationbetween private citizens, but it is not at all clear how common it was.64

From the case reports that are available, it appears that the civil suit is usu-ally part of an effort by local Party officials to get the parties to settle theirdifferences. Courts were active participants in this process, but the judgesapparently did not understand legal doctrines. The judges certainly didnot give what we would regard as legal reasons for their actions.

The dominant fact about the legal system is that it was (and probablystill is) a part of the political-legal “system” composed of the Security Ad-ministration, the procuracy, and the courts. In Maoist China, the min-istries of the central government were organized like those of most gov-ernments according to obvious functional lines: education, agriculture,defense, foreign relations, etc. Authority and orders went from the topdown; reports, from the bottom up. In addition, however, ministrieswhich dealt with related subject matter, as in the case of foreign affairs,were organized according to “systems.”65 In effect, the officials in charge ofeach level of a ministry—such as central, provincial, regional, and local—would form a committee with their opposite numbers from the otherministries in the system. Thus the top officials of the Security Administra-tion, the Chief Procurator, and the President of the Supreme People’sCourt would meet together in Peking to coordinate their activities. Theirsubordinates at each level would do the same. This makes it possible to co-ordinate both policy making and its implementation. The Security Ad-ministration was much larger than either the procuracy or the courts, andofficials in the Security Administration were often transferred laterally to


the procuracy or courts. Thus the subservience of the courts to the policeseems to be obvious. The near identity of these organizations became evenmore obvious in the 1960s and was recognized in the 1975 constitution,when the procuracy disappeared.66 But even if the courts and procuracyhad been equal in power to the Security Administration, the fact that theyall worked together as a “system” shows that there was no concept of judi-cial independence, no separation of powers. At best there was a separationof functions. Adjudication thus was apparently seen as one function ofgovernment in what was called the political-legal field. The police andprocuratorial functions were others.

The decisions as to whether to convict an individual and what sentenceto give him were made prior to the “trial” and probably by the members ofthe Security Administration, except in an important case when the Partyat a higher level would dictate. This is not to say that the local officialsacted without supervision or without reference to rules. They were subjectto rigorous supervision by their direct superiors as well as by other agen-cies, particularly the Party. They were expected to follow the rules and pol-icy directives of their superiors and to make complete reports and keep ac-curate records to show they had done so. But judges did not act as inde-pendent adjudicators. If there was a “trial” it was either a briefformality—a proceeding whose purpose was simply to announce the sen-tence officially—or an occasion to educate some group. In the early periodof the People’s Republic there seems frequently to have been a great effortnot merely to have the accused confess, but really to change his thinking.This process is often called thought reform, and was the application in in-dividual cases of many of the techniques that had been developed in themass movements or campaigns. This policy continued to the end of theMaoist years, at least to a degree. Confessions continued to be the rule.Whether they resulted from thought reform or physical coercion or acombination is not too clear.

The official end of the Maoist system may be said to have been the sen-tencing of the “Gang of Four”—the leaders of the left-wing group duringthe last years of Mao’s life. Their “offenses” were all committed duringMao’s life before the enactment of the penal code or the Code of CriminalProcedure.67 Hence these two statutes were not formally applicable. How-ever, the government decided to conduct a show trial using the new proce-dure, in part, apparently, to show that the rule of law had arrived. Parts ofthe trial were televised. The defendants were permitted to make state-ments and were given lawyers, although not all accepted them. Evidence


was presented that supported many of the charges. The problem was thatthe “trial” was simply the culmination of a “campaign” against the Gang ofFour that began almost immediately after the coup that unseated them.There were both secret meetings held throughout China with Party mem-bers where the evidence against the Gang was presented and discussed aswell as constant stories in the People’s Daily and other publications, bigcharacter posters, cartoons on wall posters as well as in the press, massmeetings, etc.—in other words, a typical large-scale national campaign.The court proceedings were only the culmination of the campaign whosepurpose was to cement the control of the Deng Xiaoping group, both ofthe country as a whole and the Party. Both the findings and the sentenceswere obviously pre-determined.68

In other words, in an ironical way, the first big event of the new legalorder revealed that the old order was still very much in place. Subsequentevents have revealed that after twenty years it still is; though consideringthe way the members of the Fa Lun Gong are being treated, it seems thatphysical coercion and torment are much more important than thethought control practiced in the early years of the People’s Republic.

The Persistence of the Republican Legal System

As indicated above, western law began to penetrate China during imperialtimes, both as the result of extra-territoriality which caused western law tobe applied in courts which sat in China, and because of the exposure of anumber of Chinese to western ideas of law, principally as students, bothinside China and abroad.

Although most Europeans and Americans were forced to leave Chinaafter Liberation, and the foreign courts had been eliminated even beforethat, a significant percentage of the small number of university graduatesin China in the 1950s had studied western law or the Chinese law that wascopied from it. Most of the western style law schools continued to functionthrough much of the first decade of the People’s Republic. Initially, thesame faculty taught the same material that had been taught before Libera-tion. Within a few years they were either replaced or re-educated, usuallyby their former students who were trained in Soviet law by Soviet teacherssent to China, or by Chinese who had studied in the Soviet Union.

Throughout the 1950s, and perhaps up to the Cultural Revolution inthe mid-1960s, drafts of codes such as criminal codes and civil codes werebeing prepared by those western-trained legal scholars, presumably on


Soviet models. None was published or promulgated. Law schools began tobe closed around the time of the Anti-Rightist Campaign of 1957. In theimmediately preceding period—the so-called 100 Flowers Campaign—lawyers had been prominent among those who criticized the regime andwho, in consequence, were punished when that campaign ended.69 Thismay have had something to do with the closing of the law schools whichtook place at that time. Although a few law schools remained formallyopen during the Cultural Revolution, in fact legal education came to a haltuntil after Mao died, and it did not really revive until 1978 or 1979. Dur-ing the Cultural Revolution (1966–1976) most of the traces of a formallegal system disappeared, although there were still courts. This tendencywas confirmed in Article 25 of the 1975 constitution in which the procu-racy was merged into the Security Administration and which providedthat “[i]n major counter-revolutionary criminal cases the masses shouldbe mobilized for discussion and criticism.”

The point of all this is that there remained a significant group of peoplewho were trained in European law either in its capitalist or socialist formswho continued to work in the field, at least in an academic way, until theCultural Revolution. Although their work was not visible, this meant thatwhen, in the late 1970s, there was a change in attitude toward western in-stitutions and contacts, there was a cadre of jurists who were able to draftwestern style codes and to re-open the western style law schools. In themajority of cases, their knowledge was entirely theoretical. They had neveractually used the law they taught and studied in the kind of society forwhich it was designed. Still, they had an awareness of western conceptsand institutions.

After Mao died in September 1976, the faction led by Deng Xiaopingprevailed in the jockeying for power in the upper levels of the Party thatfollowed. Two elements of the policy of the new regime seem to be espe-cially relevant for law. One was the “Opening to the Outside.” By this itwas meant that China would welcome foreign investment and technologyand would increase foreign contacts by means of allowing Chinese to goabroad and foreigners to come to China. This plan required a legal frame-work that would reassure foreigners on the safety of their dealings withChina. The second was the emphasis on the importance of the “rule oflaw.” What this meant to the Chinese officials who propounded it is notclear. None of them had any personal experience of a western legal sys-tem, and they certainly did not intend to give up much power, as subse-quent events have shown. Most of them had suffered during the Cultural


Revolution, however, and they seem to have been searching for a moreregularized society—one in which people behaved by rules according toestablished procedures. They apparently wanted at least to reduce the im-portance of campaigns and to get rid of the doctrine that “policy is law.”This meant that all the institutions that were associated, however vaguely,with the concept of law, were revived or established. Codes of law, lawschools, courts, lawyers, legal publications, etc. have appeared in vastnumbers. The result has been the establishment of something that canlook very much like a western legal system if it is looked at in isolationfrom the rest of Chinese society.

Conclusion

The new legal system that has been established in China on paper since1978 may eventually become such a system in fact. It seems unlikely, how-ever, that this will happen anytime soon if it ever does. The weight of thepast is too great. The effort here has been to set out what seem to one ob-server to be the important elements that will influence the shape of what-ever emerges. There are probably many others such as the Chinese familysystem. Moreover, as Chinese society changes, new institutions will proba-bly emerge which are neither western nor traditionally Chinese. The vil-lage and township enterprises are an example. It is very difficult to fitthem into either western or traditional Chinese concepts of ownership orbusiness organization.

Many would perhaps question the continuing significance of Marxismsince it seems to be the accepted wisdom, both inside and outside China,that Marxism is dead. This may be true, in one sense, but one does not es-cape one’s past so easily. It is well to remember what Robert Lowell wroteof Santayana—that he believed “There is no God and Mary is HisMother.”70 At present everyone in China from the middle levels of powerup was intensively indoctrinated in Chinese Marxism and participated incampaigns. It seems improbable that these experiences do not continue toinfluence their world views.

The ultimate form of the Chinese legal system cannot be predicted atthe present time. It seems likely that it will continue to look like a westernsystem but contain the influence of its own traditions besides in ways thatare hard to foresee. It will almost certainly be significantly different from


the legal systems of both the Federal Republic of Germany and the UnitedStates of America.

n o t e s

Portions of this piece are found in a somewhat different form in the introductionto William C. Jones, The Great Qing Code (1993).

1. Derk Bodde and Clarence Morris, Law in Imperial China 21 (1967).2. Jerome A. Cohen, The Criminal Process in the People’s Republic of China 4

(1968).3. 1 P.-L.-F. Philastre, Le Code Annamite 4 (2d ed., Paris, 1909) (Ch’eng Wen,

Taipei, 1967).4. See William C. Jones, The Great Qing Code 1–28 (1994).5. Only the Code and other statutes and regulations are cited. See O. Kahn-

Freund, C. Lévy, and B. Rudden, A Source-Book on French Law 137 n.11 (1973).6. W. Kunkel, An Introduction to Roman Legal and Constitutional History 3 (2d

ed., J.M. Kelly, trans., 1973).7. F. de Zulueta, The Institutes of Gaius 5 (1946).8. The text of the Institutes of Justianian is not radically changed from that of

Gaius. The passage quoted from Gaius is repeated in Justinian. See J.A.C. Thomas,The Institutes of Justinian 6 (1975).

9. Arts. 101–117. All articles refer to the articles of the Qing Code.10. Art. 95.11. For a discussion of what we would call civil law and the litigation of civil

disputes outside the Code in late Qing China as they appeared to a contemporarywestern observer, see G. Jamieson, Chinese Family and Commercial Law 113–127(1921). Recently, a good deal of research has been done on litigation before themagistrates of what might be called civil matters that were not covered by theCode. See, e.g., Civil Law in Qing and Republican China (Katherine Bernhardt andPhilip C.C. Huang, eds., 1994).

12. Art. 101.13. Art. 156.14. Art. 228.15. Art. 101.16. Art. 156.17. For example, the definition of “goods” includes “the young born of ani-

mals and growing crops,” Art. 2–105, as well as existing animals and harvestedcrops. If these agricultural goods are regarded as “perishable agricultural com-modities” and are sold for shipment interstate, and the parties are subject to the


Perishable Agricultural Commodities Act (7 U.S.C. §§ 499a–499s), then such mat-ters as the right to reject for breach of warranty are governed by that act and itsregulations, and not by the state sales law (nowadays the Uniform CommercialCode). See, e.g., L. Gillarde Co. v. Martinelli and Co., 168 F.2d 276, 168 F.2d 60(C.A.1, 1948), decided before the UCC came into effect.

18. Art. 282.19. Art. 290.20. Art. 292.21. Art. 280.22. Art. 330.23. Art. 95.24. Art. 157.25. Art. 131.26. T.T. Chü, Local Government under the Ch’ing 16 (reprint 1969, Stanford)

(Cambridge MA, 1962).27. The magistrate usually relied on a legal secretary to provide the legal ex-

pertise needed to decide cases. Id. at 95–101. Magistrates frequently found it im-possible to communicate with local inhabitants since they were never assigned totheir home districts and Chinese dialects are incomprehensible from one region tothe next. At one time one of the questions on the Palace Examination, the finalqualifying examination for magistrates, consisted of composing a judgment, butthis was discontinued under the Qing. I. Miyazaki, China’s Examination Hell 75(C. Schirokauer, trans., New York, 1976).

28. Current research indicates that this is not completely true. There certainlywere no barristers—persons who represented parties before the magistrate. Therewere, however, persons who gave advice to persons involved in litigation. Theywere much disliked by the government and were called by term usually translatedas pettifogger. See Melissa Macauley, “Civil and Uncivil Disputes in SoutheastCoastal China 1723–1820,” in Civil Law in Qing and Republican China 85 (Kather-ine Bernhardt and Philip C.C. Huang, eds., 1994).

29. See, for example, Thomas A. Metzger, The Internal Organization of theCh’ing Bureaucracy (1973), where the administrative practice generally is de-scribed though the emphasis is on the salt trade. See, e.g., id. at 54 for an instanceof a decision to sell salt by shifting shipments to a place where the market is betteralong with the administrative review procedure. The selection of routes togetherwith changing the usual one and review were governed by rules and precedents.

30. See, e.g., Art. 396, Intentionally Incarcerating Law- abiding Persons andPutting Them to the Question, and Art. 407, When the Complainant’s Case IsConcluded and He Is Not Released, where aspects of the incarceration of wit-nesses and complainants are dealt with. See also Derk Bodde, “Prison Life in Eigh-teenth Century Peking,” 89 Journal of the American Oriental Society 311 (1969).

31. See Jamieson, supra note 11.


32. See supra note 28.33. Probably the most accessible example is a German language abridgment of

a report made by the Ministry of Justice in 1930. Eduard J.M. Kroker, Dieamtlicher Sammlung Chinesescher Rechtsgewohnheiten, 3 vols. (1965).

34. See Dan Henderson, “Japanese Influences on Communist Chinese LegalLanguage,” in Contemporary Chinese Law: Research Problems and Perspectives 158,160–163 (J.A. Cohen, ed., Cambridge MA, 1970).

35. See Alison Conner, Lawyers and the Legal Profession During the Republic Pe-riod in Civil Law in Qing and Republican China 215 (Kathryn Bernhardt andPhilip C.C. Huang, eds., 1994).

36. See Lloyd Eastman, “Nationalist China during the Nanking Decade,1927–1937,” in The Nationalist Era in China 1, 4, 19 (Lloyd Eastman et al., eds.,1991).

37. Perhaps the best treatment in English of the codification is Jean Escarra, LeDroit Chinas (1936) (Gertrude R. Browne, trans., n.d., reprint 1961).

38. The Common Program of the Chinese People’s Political Consultative Con-ference Art. 17, adopted 2d Sept. 1949, trans. in Fundamental Legal Documents ofCommunist China 34 (Albert B. Blaustein, ed., 1962).

39. In general, the Communists kept most of the lower former officials, in-cluding judges, in place for a period.

40. Interviews with members of a Shanghai court, 1979. Law seems to havebeen the principal subject of study in the 1920s and ’30s. See Escarra, supra note37, at 500–515.

41. This was true even of the Soviet system, which supposedly served as amodel for post–1949 developments. It was essentially a western system that hadbeen adapted to the uses of a Communist state. The great difference was that pre-revolutionary Russia had had a western legal system. The Communists were mak-ing use of a system that was rooted in the society they had taken over. In Chinathis was not the case.

42. Leszek Kolakowski, Main Currents of Marxism 337 (1978) [hereafter re-ferred to as Kolakowski].

43. Id.44. Id. at 338.45. This was the rule of §4 of the Basic Program on Chinese Agrarian Law

Promulgated by the Chinese Communist Party, 1947, which appears in translationin William Hinton, Fanshen 615, 616 (1966), hereinafter referred to as Fanshen.

46. Id.47. See William C. Jones, “On the Campaign Trail in China,” 5 Review of So-

cialist Law 457 (1979). Perhaps the best systematic analysis of the campaign isGordon Bennett, Yundong Mass Campaigns in Chinese Communist Leadership(1976).

48. Fanshen, supra note 45, at 125.


49. See Fanshen, supra note 45, at 200, 201.50. Id. at 615–618.51. Id. at 267.52. See reference to “Campaign to Love and Protect the Peking University Li-

brary,” in C.P. Cell, Revolution at Work 191 (1977).53. The differences among these terms are obscure. Most of those that were

generally published appeared in volumes of “Collected Laws” that appeared from1949–1963. A list of the contents of these volumes translated into English is con-tained in T.T. Hsia, Guide to Selected Legal Sources of Mainland China (1967)[hereafter referred to as Hsia]. Dr. Hsia has given a number to each of the “laws.”References here including the translations of the titles of the laws are to Dr. Hsia’sbook.

54. Hsia, supra note 53, at 198 (no. 1201).55. Id. at 200 (no. 1223).56. Id. at 201 (no. 1228).57. Id. at 193 (no. 1153).58. Id. at 201 (no. 1227).59. Id. at 191 (no. 1130).60. See William C. Jones, “A Possible Model for the Criminal Trial in the Peo-

ple’s Republic of China,” 24 Am. J. of Comp. L. 229 (1976).61. For an example, see the description of the experience of Jardine Matheson

in Shanghai in Thomas N. Thompson, “Imperialism and Revolution in Micro-cosm: China’s Politics of Hostage Capitalism” (1977) (unpublished Ph.D. disserta-tion, Johns Hopkins University, microfilmed by University Microfilms Interna-tional [1982]).

62. The court system is described in J.A. Cohen, The Criminal Process in thePeople’s Republic of China 425–428 (1968).

63. See John N. Hazard, Isaac Shapiro, and Peter Maggs, The Soviet Legal Sys-tem 343, 344 (3d ed. 1977).

64. See, e.g., “Collection of Civil Law Cases,” 10 Review of Socialist Law 169(William C. Jones, trans., 1984). This is a collection of cases published in 1983 inChinese but the cases go back to the late Mao and early post-Mao years. See alsoWilliam C. Jones, “Civil Law in China,” 18 Chinese Law and Government 7(1985–1986).

65. See Doak Barnett, Cadres, Bureaucracy and Political Power in CommunistChina 6–9, 221–241 (1967).

66. Constitution of the People’s Republic of China, adopted on 17 January1975, art. 25.

67. The original texts of both are perhaps most easily available (in English) inThe Criminal Law and the Criminal Procedure Law of China (trans. and ed. JeromeA. Cohen and Timothy A. Gelatt, 1984).


68. There is an interesting account in Chi Hsin, The Case of the Gang of Four(Hong Kong, 1977).

69. See Jerome A. Cohen, The Criminal Process in the People’s Republic of China13–18 (1968).

70. Robert A. Lowell, “For George Santayana,” in Selected Poems of Robert Low-ell 61 (Robert Lowell, ed., 1976).


2

Exporting “the Pursuit of Happiness”

William P. Alford

I can understand “life.” I can understand “liberty.” But ifonly you Americans weren’t so busy with the “pursuit ofhappiness,” you might come to appreciate life and libertyeven more.1

I. Introduction

Serious authors generally can only dream that their work will earn thetype of reception that Aiding Democracy Abroad, by Thomas Carothers,began to enjoy even prior to its December 1999 publication. Major schol-ars, such as Stephen Holmes of Princeton and Jack Snyder of Columbia,have richly praised it.2 The New York Times commended the book on thepaper’s editorial page,3 and later ran a full review4 by an important acade-mic figure whose critique was promptly denounced by the Undersecretaryof State for Global Affairs.5 And the financier/philanthropist George Soroslent his name to its dust jacket, describing Carothers’s work as “a land-mark book, of tremendous value to. . . all . . . concerned with democracy’sfuture,” and lauding Carothers as “the ideal guide” to “one of the definingchallenges of our time.”6

Aiding Democracy Abroad owes its warm reception in important partto the salience of its subject matter. The United States has a long history ofendeavoring to enlighten, if not save, our foreign brethren by exportingideas and institutions that we believe we have realized more fully.7 Theseinclude efforts to bring “civilization,” principally in the form of Christian-ity, to age-old civilizations in Asia, Africa, and elsewhere;8 to foster “mod-

46

ernization,” especially as manifested through economic development;9 andto expound a gospel of science and technology.10 With the ebbing of theCold War,11 democracy promotion—a capacious term used to encompassefforts to nurture electoral processes, the rule of law, and civil society, allbroadly defined—has become a key organizing principle of American for-eign policy, if not this nation’s broader interface with the world(Carothers, p. 3).12 Political leaders extol it,13 the federal government alonespends more than $700 million annually on democracy promotion duringa time of diminishing foreign assistance,14 and a spectrum of other ac-tors—including philanthropic bodies, nongovernmental organizations(NGOs), academe, business, and the practicing bar, not to mention multi-lateral entities and foreign governments and institutions—participate init.15 Amid a burgeoning literature on democracy promotion, AidingDemocracy Abroad is the first systematic study of the range of such pro-grams that the U.S. government has fashioned or funded in the years sincethe collapse of the Soviet Union.16

Beyond timeliness, however, Aiding Democracy Abroad’s ready recep-tion is also a product of its author’s stature and the manner in which hehas cast his study. Thomas Carothers is a serious public intellectual whonot only has written extensively about transitions in Latin America, Eu-rope, and elsewhere,17 but who also, as Vice President for Global Policy atthe Carnegie Endowment for International Peace, is well-positioned toplay an important role in influencing the direction of democracy promo-tion. In Aiding Democracy Abroad, he speaks to a variety of audiences—including those who shape scholarly and popular understandings ofdemocracy promotion, those who make and execute policy regarding it,and those who foot the bill for it—drawing on case studies of his own de-vise emanating from four continents, hundreds of interviews, heretoforeunderutilized government documents, and a broad cross-section of thepertinent academic literature. Moreover, Carothers consistently displaysan admirable judiciousness, confronting problems that have beset Ameri-can democracy promotion with candor and suggesting ways to enhancethe undertaking, as currently conceived.

The attractiveness of Aiding Democracy Abroad—especially for thoseseeking to redeem democracy promotion from the difficulties it has expe-rienced—should be apparent. Yet the book’s considerable strengths are alsoits most notable weaknesses. By hewing as closely as it does to democracypromotion’s present parameters, defined in isolation from many of thebroader political, philosophical, and ethical issues the endeavor implicates,

Exporting “the Pursuit of Happiness” 47

Aiding Democracy Abroad does not provide as much guidance as itmight, either to those seeking to understand this latest American effort attransforming the world or to those aspiring to play an active role in thisventure. Ironically, even as Aiding Democracy Abroad argues persuasivelythat a principal failing of such programs has been their tendency to treatsituations fraught with complex political and normative considerations asamenable to relatively formulaic solutions, Carothers’s work does notdelve as fully as it might into the many vexing questions that pervadedemocracy promotion. That may well be a product of the author’s desireto deliver a clear message to those in whose hands the future of such pro-grams rests, but it ultimately diminishes this noteworthy study’s contribu-tion.

The enthusiasm that has marked American efforts to spread the fruitsof our experience abroad makes it difficult, especially at the apogee ofsuch undertakings, to probe underlying assumptions, lest we appear to bedismissive of the worthiness of the objective in question, doubtful of thesincerity of its proponents, or indifferent to the fate of the would-be bene-ficiaries. This disinclination to appear to be raining (or even drizzling) onthe parade may be particularly intense with regard to current efforts atdemocracy promotion. As perhaps most crisply articulated in popular dis-course in Francis Fukuyama’s notion of the end of history, there is awidely held perception that with the collapse of the former Soviet Unionand the robustness of the American economy relative to those of France,Germany, and Japan, the forms of democracy, the rule of law, the market,and even civil society currently dominant in the United States have beenirrefutably vindicated.18 Although some in legal academe express disdainfor Fukuyama’s thesis,19 there seems to be an all too common beliefamong American scholars of the law, cutting across conventional politicaldivides, that our political and legal institutions singularly warrant the at-tention of nations in transition, if not of the rest of the world.20

The very pervasiveness of such sentiments suggests the value of raisingeven more fundamental concerns than does Carothers. We cannot allowour sense of faith in the value of the enterprise to divert us from inquiringinto our motivations for democracy promotion and what our actions,whether as a state or a society, suggest about the depth of our commit-ment to assisting others in achieving democracy. Inconclusive though itmay prove, we need to ask difficult questions about matters such as the re-lationship between the various “goods” being promoted (that is, democ-racy, the rule of law, fundamental human rights, markets, economic devel-

48 w i l l i a m p. a l f o r d

opment, and civil society) and the challenges inherent in discerning andmeasuring both the intended and unintended consequences of what weadvocate. And throughout, we need to be mindful of the ethical implica-tions of seeking to mold others in such basic ways, even as we are alert tothe respects in which the experience may be shaping us.

At first blush, asking such questions may seem all too “academic” an ex-ercise that threatens to enmesh those determined to foster democracy in aweb of self-absorption and indecision for which they simply do not havetime. To the contrary, however, this process has the potential to speakforcefully to problems such as the hubris and inattention to power thatCarothers rightly argues have plagued democracy promotion efforts todate. That is not because ready answers loom on the horizon, for in manyinstances, they are simply not to be had or vary depending on one’s nor-mative outlook, but rather because the exercise itself—with its sober re-flection on ends as well as means—underscores the true complexity andgravity of attempting so fundamentally to influence others.

My examination of Aiding Democracy Abroad begins by setting forthin Part II the essence of Carothers’s argument. Part III then raises the typeof questions that I believe should inform democracy promotion and thatwould, inter alia, have enabled Carothers better to justify and impart thelessons of humility and local fit he suggests are critical to the future of theenterprise. It is in the posing and consideration of such questions, I sug-gest in my conclusion, that academics may make their fullest contributionto what George Soros rightly has termed “one of the defining challenges ofour time.”21

II. Promoting Democracy Abroad

A. A Short History of Democracy Promotion

Carothers acknowledges at the outset of Aiding Democracy Abroad thatAmerica has long been in the business of endeavoring to make the world“safe for democracy,” as Woodrow Wilson phrased it,22 but he suggests thatit was only with the Kennedy administration that “the idea of giving aidspecifically to promote democracy caught on among policy makers”(Carothers, p. 19). To be sure, initial efforts, which were largely funneledthrough the newly created United States Agency for International Develop-ment (USAID), took a long-term perspective on democratic development,


having been shaped by the Cold War and by modernization theory as pro-pounded by Walt Whitman Rostow and others.23 USAID focused its re-sources chiefly on buttressing regimes friendly to American interests in theCold War (which had varying commitments to democracy, to put it chari-tably) and on fueling economic growth which, according to moderniza-tion theory, would foster a middle class and otherwise contribute to theeventual flourishing of democratic institutions akin to our own. With lit-tle to show in the way of positive results through the 1960s, by the decade’send USAID began to alter its strategy. The agency sought, at least in a pre-liminary way, to nurture democratic development more directly throughthe promotion of sympathetic political parties, “civic education” (includ-ing support of American-style labor unions), “municipal development”(designed to strengthen local government), and law and development pro-jects that aimed “to encourage lawyers and legal educators in developingcountries to treat the law as an activist instrument of progressive socialchange” (p. 24).

In Carothers’s account, the Carter administration’s attention to humanrights concerns in foreign policy lent support to the American govern-ment’s still modest democratization programs, but it was not until theReagan administration that the United States undertook an extensive“global program of democracy assistance” (p. 31). “The objective,” as Pres-ident Reagan would have it, was quite simple: “[T]o foster the infrastruc-ture of democracy, the system of a free press, unions, political parties, uni-versities, which allows a people to choose their own way to develop theirown culture, to reconcile their own differences through peaceful means”(p. 31).

This emphasis on a more programmatic form of democracy promotioninitially grew out of the Reagan administration’s desire to stem Soviet in-fluence and was directed toward governments, including those of Chile,Haiti, Paraguay, the Philippines, and South Korea, then better known fortheir anti-communism than their heartfelt commitment to democraticideals. By the second Reagan term, however, democracy promotion cameto be understood more broadly. It grew, Carothers tells us, to encompassassistance for electoral reforms in Latin America and, to a lesser degree,Asia, as well as support for dissidents and human rights groups chieflyconcerned with the Soviet Union and its satellite states.

The 1990s witnessed a mushrooming of U.S. government–sponsoreddemocracy assistance and of related efforts by other governments and bymultilateral organizations, foundations, and NGOs.24 Federal government


expenditures on democracy assistance multiplied almost five-fold tonearly $720 million annually over the course of the decade (p. 54). Morethan 100 countries now receive such assistance. And the target of suchsupport has come to include not only such staples as electoral, legislative,and judicial processes, but also “civil society” as manifested in indepen-dent media, nonpartisan NGOs, free labor unions, small businesses, andgeneral “civic education.”

B. Applying a “Democracy Template” Worldwide:The Mechanics of Democracy Promotion

The principal vehicle through which the U.S. government directs democ-racy assistance continues to be USAID (pp. 48–53). That agency has hadresponsibility for some two-thirds of such assistance in recent years, total-ing more than $530 million in fiscal year 1998 (the last year for whichCarothers provides comprehensive data) (p. 54). Other agencies involvedin democracy promotion, either through direct appropriations or throughfunding provided by USAID, include the Departments of State, Defense,and Justice, the United States Information Agency (which has recentlybeen reabsorbed into the Department of State), the National Endowmentfor Democracy, the Asia Foundation, and the Eurasia Foundation (p. 54).

From its inception, USAID’s principal operating method has been todefine a potential recipient nation’s needs for assistance, design projects tomeet those needs (alone or in conjunction with an American intermedi-ary, which might be either a for-profit consulting firm, an NGO, or a uni-versity-related entity), and then fund such intermediaries to carry out theproject, typically in cooperation with one or more local partners. Otherfederal agencies, including the Departments of Justice and Defense, havemore routinely dispensed with intermediaries, carrying out project designand even implementation themselves. Of late, both aid providers andAmerican intermediaries have discovered “localism” (p. 339), leading themto involve recipient country specialists at earlier and more important partsof the endeavor, and even to make occasional direct grants to host countryNGOs.

The approaches that the U.S. government and those working for it havepursued are “almost everywhere . . . strikingly similar” (p. 85), notwith-standing the enormous variety in recipient countries’ standards of living,economic bases, literacy levels, ethnic unity/disunity, historical attitudestoward state authority, recent political experience, interaction with the


United States, access to other foreign assistance, and a host of other vari-ables. In part, this reliance on what is essentially a “democracy template”reflects the institutional needs and character of USAID, which has longbeen notorious as one of the most inflexible of Washington bureaucra-cies.25 But this reliance on the formulaic also, Carothers tellingly indicates,incorporates both a substantive “model of democracy” and a procedural“model of democratization” (p. 85).

USAID and most other federal agencies involved in democracy promo-tion derive their model of democracy, not surprisingly, from a somewhatidealized sense of the American experience, suggests Carothers (p. 91). Na-tions should take as the centerpiece of their public life a largely fixed, writ-ten constitution that divides government into three separate but equalbranches, while also ensuring the citizenry’s rights, making the rule of lawa cardinal principle, and placing the military in a position subordinate tocivil authority. Elections are to be held at both the national and local lev-els, with electoral politics to be conducted via “a few major parties” of anessentially moderate nature organized around national policy issues,rather than regional, religious, or strong ideological divisions (pp. 86–87).And the model emphasizes a vigorous civil society, including an indepen-dent media, strong unions, and NGOs “involved in public interest advo-cacy” and unafraid to take the government to task (p. 87).

Whatever the differences between this idealized model and Americandemocracy, Carothers argues that they pale in comparison to those be-tween the methodical process of democratization promoted by U.S. gov-ernmental aid programs and the history of our nation’s democratization(p. 91). Although our democracy came into being through revolution andwas “deepened and broadened” through subsequent traumatic events suchas the Civil War, the Great Depression, and the struggle for racial justice,U.S. governmental programs embrace a “technocratic, gradualistic con-ception of democratization” that assumes a well-modulated sequencing(p. 91). Essentially, this model presumes that an authoritarian regime (iffor no other reason than to save itself) will open to the possibility of re-form as its legitimacy fades and its populace presses for greater freedoms.With that opening, “opposition groups and independent civic actors mul-tiply” (p. 87) and interact with the state in such a way that the regime al-lows meaningful elections, the implementation of additional reforms, andeventually, the irreversible consolidation of new democratic institutions.To the extent that USAID has refined the model, it has been to divide re-cipient nations into three broad categories, with the chief difference in ap-


proach being USAID’s relative emphasis on the promotion of ideas as op-posed to direct action. The first category, Carothers suggests, includes“pretransition” states such as China, Myanmar, Vietnam, and (before theirrecent openings) Indonesia and Nigeria (p. 95). A second is comprised ofstates said to be in the process of consolidating their move toward democ-racy, such as Guatemala, Mexico, Romania, and South Africa. And thethird group consists of states “backsliding” into authoritarianism, such asArmenia, Cambodia, Kazakhstan, Peru, Russia, and Zambia (pp. 108–9).

Although Carothers acknowledges that the notion of a gradual, se-quenced process of democratization bears some resemblance to ideas ad-vanced in the scholarship of Guillermo O’Donnell and Philippe Schmitter,among others,26 he seeks to dispel any suggestion that academic work hashad more than a negligible influence “on democracy aid generally over thepast fifteen years” (p. 93). There has, he asserts, “been little borrowing ofconcepts from the literature, nor has there been that much direct inter-change of ideas” (p. 93). Those shaping and administering governmentalprograms have had little time for theory, he tells us, because they viewscholarship as far removed from the concrete problems with which thosein the field must deal, not to mention riddled with contradictions, exces-sively jargon-laden, and often ideologically ill-disposed toward the Ameri-can government (p. 94). Nor, apparently, have such officials delved deeplyinto the histories of other mature liberal states such as Britain, Germany,or Japan; of jurisdictions that have made fairly successful transitions suchas Chile, the Czech Republic, Korea, and Taiwan; or even, Carothers em-phasizes, of the intended targets of American democracy promotion pro-grams. Instead, they have tended to rely exclusively on their own experi-ence concerning either the United States (in which much of the basicprocess of democratization occurred prior to their lifetime) or a smallsubset of nations that previously were major foci of American democracyassistance (pp. 97–98).

Carothers’s assessment of the core strategy underlying Americandemocracy promotion programs is incisive, even as it builds, in a tem-pered manner, on concerns of the type that David Trubek and MarcGalanter expressed in their celebrated 1974 study Scholars in Self-Es-trangement.27 At the most general level, Carothers identifies three majorshortcomings. First, U.S. democracy promotion programs have drawn fartoo much and far too uncritically on idealized American models. Practicesthat may be quite understandable in one setting (such as “American-stylelegal activism”) may “have grown out of particular aspects of America’s


social makeup and history—whether the immigrant character of society,the ‘frontier’ mindset, the legacy of suspicion of central government au-thority, or the high degree of individualism” (p. 98). As such, they may notmap effectively even onto civil law democracies in Europe, let alone devel-oping nations. Second, the core strategy seems remarkably, if not evenwillfully, inattentive to political, social, or economic power in recipient na-tions. This inattentiveness tends to lead to an undue and often naive em-phasis on formal, as opposed to substantive, change. “Aid providers,”writes Carothers, “treat political change in a pseudoscientific manner as aclinical process to be guided by manuals, technical seminars, and flow-charts specifying the intended outputs and timeframes” (p. 102). The thirdgeneral flaw in American thinking has been its assumption that there is anorderly and universally valid process of democratization. Experience, indi-cates Carothers, argues against this notion, suggesting that programs thatare insufficiently supple and flexible may collapse of their own weight asevents depart from the stages that methodical sequencing would seem toprescribe (pp. 108–13).

Heeding his own message about the importance of attention to context,Carothers elaborates his critique of the broad strategy underlying democ-racy promotion programs by interweaving case studies of Guatemala,Nepal, Zambia, and Romania into his principal discussion. The four na-tions, to be sure, share some features. Perhaps most significantly, “the re-cent transition [to democracy] had strong roots in [each] country’s past”(p. 82)—including efforts to liberalize prior to the imposition of auto-cratic governments during the Cold War years. Further democratization,however, remains far from complete in each instance. Indeed, according toCarothers, “[i]n all four, most of the core state institutions have remainedcitadels of corruption, incompetence, and inefficiency” (p. 81), while thepublic in each has come to take a somewhat skeptical, if not jaundiced,stance toward democratization after initially having viewed its potentialbenefits with considerable anticipation.

Despite these similarities, Carothers notes several differences amongthe subjects of his case studies beyond the obvious ones of geography andethnicity. These include the nature and provenance of the recent authori-tarian past that each is struggling to leave behind (ranging from the right-wing dictatorship so long dominant in Guatemala to Ceausescu’s repres-sive communist regime in Romania); their current political arrangements(Nepal, for instance, is a monarchy and Zambia is still, in effect, a one-party state); and the degree of attention accorded by the United States


(which has run from massive involvement via the Central IntelligenceAgency [CIA] in the case of Guatemala, to the turning of a blind eye to-ward brutality in Romania, to near indifference with respect to Zambiaand Nepal). And although the United States has essentially adopted acommon strategy toward each, the amount of funding that Washingtonhas been willing to devote has varied. Guatemala, for example, has re-ceived approximately $60 to $80 million over the 1990s (for a populationof 11 million), roughly double the amount allocated for Romania (with apopulation of 22 million), and three to four times that spent on Zambiaand Nepal (with populations of 10 million and 22 million, respectively)(pp. 120–21).

C. Your Society Can Be Civil, Too:The Elements of Democracy Promotion

Within the four nations that Carothers highlights, and the hundred or somore that are recipients of American democracy assistance, USAID hasconcentrated its attention on three principal areas: institution building,electoral and political processes, and civil society—all, no doubt, worthy,but each of which, Carothers suggests, presents very complex challenges.By institution building, Carothers principally means work on nationalconstitutions and the promotion of the rule of law, although he also in-cludes in this category more modest attempts to improve legislative opera-tions, devolve responsibilities from central to local units of government,and institutionalize civilian command of the military (p. 158). Support forconstitutional development “is probably the form of democracy assistancebest known to Americans” (p. 160), taking such forms as the provision ofdirect advice by prominent American scholars and the convening of high-profile conferences involving key foreign draftspersons. Alas, observesCarothers, while such assistance may be “tremendously appealing to U.S.aid providers . . . its promise of great bang for the buck is seldom fulfilled. . . [as] most constitutional aid is very much on the sidelines when thewriting or rewriting is going on” (p. 160). In an important sense, this is asit should be if a constitution is to be expressive of the experience and aspi-rations of the people to whom it is to apply and is to emerge from a draft-ing process in which they have been able to participate significantly. Thelimitations inherent in attempts to play an active part in shaping anotherpeople’s constitution may be even more pronounced in the case of Ameri-can assistance, given the particular prominence of constitutionalism in


our national history and civic life, and the belief of some specialists that,for all its virtues, the U.S. Constitution may be less well suited than West-ern European models for Eastern Europe and perhaps other regions (p.162).28 In fact, as Carothers illustrates with respect to Zambia, local au-thorities may even turn such assistance on its head, utilizing constitutionalchange to buttress one-party rule (pp. 162–63).

Rule of law assistance—within which rubric Carothers includes aid di-rected toward legislative drafting; judicial, prosecutorial, police, andprison reform; strengthening of the private bar, public providers of legalassistance, and advocacy groups “that use law to pursue social and eco-nomic goals” (p. 168); university-level legal education; and enhancingpublic familiarity with the law—has become a second focus of Americanprograms designed to foster democracy through institution building. Thefirst generation of these efforts, in which academics such as Trubek andGalanter were involved, concentrated chiefly on Latin America and Africaand was relatively low-profile. Over the course of the past decade, rule oflaw programs have been directed toward Eastern Europe, the former So-viet Union, and a variety of Asian venues, while being targeted for consid-erable attention both here and in recipient nations (pp. 163–64).

Indeed, notes Carothers in one of his more pointed observations,donors are increasingly advancing the rule of law as a remedy for mostmajor challenges facing transitional countries (p. 165). As with the pro-motion of civil society, it has of late become a central part of the conven-tional wisdom regarding democracy assistance and is now seen as indis-pensable to the attainment of democracy, economic success, and socialstability.

For all this new-found faith—not to mention a good deal of cash and asurfeit of American legal scholars and jurists—“what stands out aboutU.S. rule-of-law assistance since the mid-1980s,” concludes Carothers, “ishow difficult and often disappointing such work is” (p. 170). In part, thisdifficulty results from the magnitude of the changes that are involved inpromoting something approximating a rule of law in nations sufferingfrom an inadequately trained and poorly paid judiciary, weak supportinginstitutions, and seemingly endemic corruption. In Nepal, for instance,“various aid efforts to improve the administration of the courts sank al-most without a trace into a judiciary riddled with corruption and mis-management” (p. 173). But the disappointing quality of work in this areais a result of more than just the size of the problem. In concentrating upon


law drafting (which all too often has meant law drafting based on Ameri-can models) and judicial assistance, even well-meaning American reform-ers have frequently demonstrated little appreciation of the ways in whichlaw is rooted in a social context that may well vary among nations. And,contends Carothers, they have in all too many instances failed to discernthe limits of support for such reforms, not only in political circles, but alsoamong economic and social elites and even in the leadership of the judi-ciary itself (p. 174).

The second major prong of American democracy promotion programsconcerns the electoral process and party politics. Efforts to promote elec-toral processes, suggests Carothers, take five principal forms. These in-clude the design of electoral systems (with a preference for single member,rather than proportional, districts—because that is what American advis-ers know best), electoral administration, voter education, election obser-vation, and the mediation of disputes arising from elections (pp. 125–28).The utility of such advice is ultimately very much dependent on the com-mitment of the host nation—and especially its ruling party—to an elec-toral process with the potential to dislodge those holding office. As a con-sequence, what Carothers characterizes as “intensive, generally well-con-ceived technical assistance” in Romania and Zambia essentially went fornaught (p. 130), while more successful elections in Guatemala “[were] in-fluenced by the surge of elections elsewhere in Latin America, but very lit-tle by U.S. officials, to whom the Guatemalan military was not in the habitof listening carefully” (p. 137). Beyond such obvious and fundamental is-sues, American and other providers of such assistance confront somewhatmore subtle challenges. Election observers, he notes, find it more difficultthan one might initially imagine to articulate standards for evaluatingelections that are appropriate (given local circumstances) and yet alsoreadily comprehensible to an audience abroad (p. 133). Of late, there havebeen so many observing missions afoot that there is a need to avoid trip-ping over other well-intentioned teams of observers (p. 134). Nonetheless,for all these and other difficulties, Carothers on balance seems to viewdemocracy promotion efforts directed toward electoral processes more fa-vorably than those aimed at the building of political parties. Notwith-standing USAID guidelines stressing nonpartisanship, the very nature ofaiding partisan political parties makes it well-nigh impossible for foreignadvisers to avoid at least the perception of intervening in the domestic af-fairs of another state, as apparently was the case in Romania (pp. 144–45).


Although of relatively recent origin as a consequential component ofU.S. democracy promotion programs, “civil society”—which Carothersdefines as “the space for a society between individuals and families, on onehand, and the state or government, on the other” (p. 209)—has becomesomething of a watchword in the 1990s (pp. 207–9). An admittedly vagueconcept, civil society29 is attractive for its open-endedness, as well as for itspotential to redress the overly top-down nature of earlier programs, not tomention the opportunities it provides to engage important Americanpopular constituencies in the work of democracy promotion. The princi-pal focus of U.S. civil society assistance has been on so-called advocacyNGOs, although broad civic education, independent media, and free laborunions have also received considerable support (p. 210). Issue-orientedNGOs are seen as having the potential to stimulate greater citizen involve-ment in governance in a manner that is, at least in theory, relatively non-partisan and distinct from religious entities, clans, or other predominantlyethnically-defined groupings (pp. 211–12).

Carothers has considerable unease about the extent to which democ-racy promotion has emphasized advocacy NGOs. In important measure,his reservations arise because he views advocacy NGOs as very much aproduct of the American experience. The notion that such bodies canreadily bridge the gap between state and society may have been validatedto some degree in Romania, but even there they evidence a “faddishnessand opportunism” that he believes common in many countries (pp.224–25). Reliance on advocacy NGOs has, moreover, been a dismal failurein Nepal, where the problem of “frantic politicization,” inter alia, belies theconceit that any socially active organization can eschew partisanship. Norhas the experience differed appreciably in Zambia, where much-vauntedpopular participation has been achieved only through payments to localparticipants of more than they can earn from a day’s work. Carothers ex-presses further skepticism about the assumption, underlying the emphasison such NGOs, that this type of advocacy will perforce “lead to the pre-dominance of wholesome public interests” (p. 223). This, he suggests, hasnot necessarily been the case in the United States, where there is growingpublic concern regarding the ways in which monied lobbyists distort thelegislative process. Moreover, there is the added complication that for allits statements of nonpartisanship, U.S. civil society assistance

clearly often reflects the application abroad of the basic U.S. domestic lib-

eral agenda—support for human rights, the environment, women, indige-


nous people, and so forth. . . . Aid providers say that the advocacy NGOs

they support are pursuing the public interest, but the public interest is in-

terpreted very much in accordance with the worldview of the U.S. NGO

community from which come most U.S. enthusiasts of civil society promo-

tion abroad. (p. 212)

Money has also created its own problems. In Nepal, “bad NGO practicesgrowing out of too many donor funds chasing too few worthwhile organi-zations in the capital have led many Nepalese to hold NGOs in contempt”(pp. 217–18). And in Zambia, the flow of USAID cash, coupled with arhetoric of “partnership,” left local NGO leaders with a “deep bitterness to-ward USAID . . . and feeling mistreated by the United States” when Wash-ington’s gravy train came to a halt (p. 220).

Carothers has many of the same concerns regarding efforts by the AFL-CIO, among other bodies, to promote unionization abroad. While believ-ing that strong, independent unions can be a potential bulwark for a ro-bust civil society and for development more generally, he is critical of theextrapolation of what he describes as an American-style contentiousnessinto labor- management relations abroad, especially given his view that“the model does not even seem to work well at home [where] the U.S.labor movement has been in serious decline for decades” (p. 246). Addi-tionally, Carothers is bothered by what he describes as the secrecy and rel-ative lack of accountability that surround the funding of such labor-basedinitiatives (which he, in turn, traces to the AFL-CIO’s power base in Con-gress) and by their absence of strong links to other aspects of Americanprograms intended to foster civil society.

Carothers takes a slightly more sanguine view of efforts to foster civiceducation and independent media. He suggests that the former has hadsome effect in Guatemala and the latter has, as an adjunct to domesticefforts, played a constructive, if modest role in the restructuring of cer-tain media in Romania. Even here, though, Carothers underscores theneed for sobriety. He points out that factors such as low literacy ratesand host country governmental actions inconsistent with the message ofcivic education reduce its effectiveness, while the model of private own-ership of media preferred by American aid givers raises difficult issuesconcerning matters such as commercialism and candidate access to theairwaves.


D. Carothers’s Conclusion:Realism about Idealism in Democracy Promotion

For all his quite substantial criticisms of American democracy promotionprograms, Carothers is of the opinion that those charged with responsibil-ity for them have begun to address some of the aforementioned problems.He therefore focuses in his final chapters on how such gains might be con-solidated. Perhaps most vitally, he concludes that those Americans shapingsuch programs would do well to approach their work with much morehumility. Democracy assistance, Carothers believes, has a valuable, if an-cillary, role to play in facilitating the efforts of those with a “will to re-form” in the target nations. As such, Americans, whether at USAID or inthe burgeoning ranks of NGOs involved in democracy promotion, shouldmove away from excessive utilization of formulaic templates based on theAmerican experience and of associated modes of evaluation. In theirstead, he urges that far greater attention be paid to tailoring assistance tolocal circumstances. In the same vein, even if the United States continuesto bankroll such work, there needs to be a concerted effort to include localpersonnel far more readily and substantially in the undertaking. And ex-pectations about what such programs might accomplish need to be scaledback as well.

Within this more realistic set of parameters, democracy promotersshould, suggests Carothers, accentuate three substantive concerns that hebelieves have received insufficient attention. The first is the need to “builda relationship between aid for democracy and the larger, more establishedworld of aid for social and economic development,” given that these twointernational assistance communities have operated with surprisingly littleinteraction, if not a good deal of mutual suspicion (p. 344). The desiredlinkage between these areas of development is far from clear, but there isno doubt in Carothers’s mind that they are inextricably interwoven. Sec-ond, greater attention should be paid to the role of women in democrati-zation for, notwithstanding his earlier point about the influence of Ameri-can NGOs, Carothers emphasizes that women continue to play a sec-ondary role in all aspects of democratization—including new publicinstitutions, reinvigorated electoral and political processes, and emergingcivil society entities. Third, far more emphasis needs to be placed on help-ing “recipient countries better understand and use democracy aid” (p.346). In something as vital as democracy, passivity among recipients andtheir agents is not desirable.


The changes that Carothers advocates in America’s efforts to promotedemocracy abroad will not, in the end, occur without changes in theUnited States. Some will entail institutional reform of the manner inwhich USAID conducts and evaluates its work, if not even of the structureor mission of the agency itself. But as difficult as it may be to imagine re-casting such practices or reshaping so entrenched a bureaucracy, theseproposed reforms pale in the face of the larger changes in public con-sciousness that Carothers proposes (if, at times, more by implication thandirect statement). Americans should reverse the recent trends of sharplyreduced foreign aid budgets and relative self-absorption30 in order to pro-vide the financial and political support needed to seize this extraordinarymoment in history. At the same time, though, the public must understandjust how difficult the undertaking is. The very type of transformations thisassistance is intended to foster will, by definition, be slow, painful, uneven,and capable at most of producing a hybrid rather than a replica of whatwe think is best about ourselves. And our role is likely to be an ancillaryone for which both common sense and decency suggest we refrain fromtaking substantial credit. As Carothers puts it in concluding his book:

Americans are so used to debating foreign policy from positions of realism

and idealism, in which America’s interests and capabilities are either sys-

tematically understated or overstated, that it is hard to avoid discussing

democracy promotion in those terms. A position based on idealistic aspira-

tions tempered by deeply realist considerations makes both sides uncom-

fortable. For democracy promotion, however, it is the only real choice. (p.

352)

III. Fundamental Questions That Should Be Asked aboutDemocracy Promotion

There is so much to commend about Aiding Democracy Abroad—it ishard to imagine a book on this general topic that might actually be read inWashington that better blends an awareness of theory, hands-on casestudies, and policy—that one is loath to voice criticisms of it. Yet the highstandard that Carothers has established warrants that one not hesitate todo so.

Carothers himself reveals what is arguably Aiding Democracy Abroad’smost significant shortcoming in his seemingly innocuous statement in the


book’s conclusion that “[t]he most common and debilitating weakness ofdemocracy programs is the manner in which they are carried out—aboveall, the failure to fit activities to the local environment and to give peopleand organizations of the recipient country a primary role” (p. 344). Thisobservation, no doubt, has a great deal of truth to it, as will be discussedbelow. Nonetheless, it also evidences Carothers’s too ready acceptance ofthe current parameters of America’s efforts at democracy promotion andhis concomitant failure to ask at an even more fundamental level aboutthe motivation for democracy promotion, the logic of the models it em-ploys, the difficulties of measuring its intended and unintended conse-quences, and the ethical challenges the enterprise poses. This Part of myReview raises many such questions. It may well be unreasonable to expectAiding Democracy Abroad to have explored them all, but Carothers wouldhave fostered more considered—and more democratic—deliberationabout democracy promotion both here and among potential aid recipientshad he pursued such lines of inquiry.

A. Why Democracy Promotion?

Carothers surely is right to urge a greater attention to “local environment”in countries receiving democracy assistance. Logic suggests, however, thathe should as well have scrutinized the local environment of this and othercountries providing the assistance. Whether from a scholarly or more pol-icy-oriented perspective, questions regarding a country’s rationale for anddegree of commitment to democracy promotion are vital to any meaning-ful assessment of such undertakings. Aiding Democracy Abroad has muchto say (little of it favorable) about USAID, but it is surprisingly reticentabout the genesis of the larger policies that the agency executes, eitherwith respect to contemporary partisan politics or to longer-term theoreti-cal issues, particularly given that the book calls on policymakers and thepublic to support democracy promotion even though the endeavor is un-likely to yield “rapid or decisive change” (p. 351). Nor does the book sys-tematically examine how our broader conduct as a state and a society mayreinforce or retard such programs, although such an inquiry would haveilluminated the priority we accord democracy promotion.

The question of motivation is more complex than it might at firstseem. One could imagine a number of different and perhaps simultaneouspurposes at play in the American impulse to promote democracy abroad.For example, such efforts could result from a genuinely altruistic desire to


share what we believe is best about our society; from a belief in thepromise of a more peaceful world (premised on the Kantian notion thatdemocracy restrains governments from going to war, save againsttyrants);31 or from a conviction that democracy is more conducive thanany other political system to sustained economic growth.32 Alternatively,American efforts may be more attributable to an unwitting hegemonism;to a need to vindicate our ideals (or the ways in which we aspire to realizethem) by having others adopt them; or to the waging of domestic acade-mic and ideological debates on foreign terrain.33 Or perhaps the explana-tion owes more to realpolitik—as borne out in the solution democracypromotion may provide to practical political battles;34 in its potential forlegitimating measures taken for American security, economic, and otherinterests;35 or in the capture by some self- interested subset of actors (suchas aid bureaucracies, consultants, developing country elites, etc.) of a pol-icy in which most Americans have little direct stake.36 What is the mix atany given point of these and other factors? How are tensions betweenthem to be resolved? After all, it is conceivable that the goal of empower-ing others to elect governments that may better represent their viewsmight simultaneously be at odds with the goal of using democracy pro-motion programs to advance specific American national interests (as, forexample, when the Senate of the post-Marcos Republic of the Philippinesvoted to terminate the U.S. lease on Clark Air Base and the Subic BayNaval Station that the ancien regime had been only too happy to allow theUnited States to hold).37

Unfortunately, Carothers does not address questions of motivationother than in a six-page “interlude for skeptics” (pp. 59–64). Even this in-terlude is little more than a cursory response to the most dismissive ofcritics. He seems instead to operate on the assumption that American mo-tivations are so self- evidently positive and straightforward that they nei-ther require explication nor pose any problems of internal consistency.This approach is unfortunate, not because those who doubt Americanmotivations are necessarily correct, but because the tensions inherent in acomplex democratic society’s attempt to foster democracy abroad posesome of the most challenging issues such a book might explore. Carothersunderstandably bemoans the American public’s broader lack of interest indemocracy promotion programs. But it may be, even at a very mundanelevel, that this lack of interest and the impatience of most American polit-ical figures with democracy promotion programs that are unlikely to bearfruit quickly (or the concomitant tendency to overstate the immediate


benefits of any such program)38 are, in the end, simply democracy at workin a large, powerful nation with secure borders and pressing domesticconcerns. Can taxpayers be expected to support something so remote, inevery sense of the word, especially if there is a belief afoot that the interna-tional community has not been grateful for the contribution that thiscountry has already made?39 To what extent do domestic political con-cerns lead democracy promotion programs to advocate primarily theadoption of specific forms of governance derived from the American ex-perience, instead of suggesting a broader panorama of possibilities or fo-cusing on core underlying ideas and universal notions of human rights?And how does the effort to foster democracy abroad shape democratic lifein the state rendering assistance?40

Carothers is equally terse in his consideration of what American behav-ior more broadly suggests about the motivation for democracy promotion(as well as its effectiveness). For example, Carothers mentions briefly thatduring the 1950s, 1960s, and early 1970s, the CIA “engaged in numerouscovert efforts to bolster selected political parties, to tilt elections, and oth-erwise to influence political outcomes,” and that it sometimes sought tojustify its actions “as support for the cause of democracy” (p. 25).Carothers is critical of this practice, noting that it “created a powerfullegacy . . . with which democracy programs of the 1980s and 1990s havehad to contend” (p. 25). But ultimately, even in his case studies, he doesnot illustrate the contemporary interplay between different governmentmissions involving the world beyond our borders (such as the promotionof our ideals, economic interests, national security, and drug interdiction)and thus fails to illuminate the relative level of priority the American gov-ernment accords democracy promotion in its foreign policy.41

Nor, notwithstanding his praise for the philanthropy of George Soros(who “has contributed more democracy-related aid to many countries inEastern Europe and the former Soviet Union than has the U.S. govern-ment or any other government” [p. 349]), does Carothers indicate whatthe activity of nongovernmental actors might suggest about the extent ofstate or societal commitment to democracy promotion.42 Indeed, thereseems little recognition in Aiding Democracy Abroad of the importance ofviewing American governmental programs in the context of nonstate ac-tors, whether from business, the NGO community, or civil society morebroadly, given how many areas of endeavor undertaken elsewhere by thestate are addressed by society in the United States.


B. Whose Model of Democracy and Democratization?

Carothers’s discussion, described earlier, of the models of democracy anddemocratization employed by American aid providers43 is more extensivethan his treatment of motivation and yet it, too, fails to push the inquiry asfar as it might. These models, he suggests, have a pragmatic rather than anideological or theoretical foundation that differs from European models,but is in keeping with what some observers term a deep- seated pragma-tism in American life, especially among the legally trained.44 The fact thatUSAID and other agencies may have an uneasy relationship with Americanacademia, however, does not mean that they are acting in an intellectualvacuum. Scholars, in law among other fields, have been somewhat more in-volved in the shaping and execution of prominent parts of such assistancethan Carothers acknowledges.45 But even more importantly, there is opera-tive in the models of democracy and democratization a vision of what awell-functioning democratic state looks like and how it is to be achieved.Such a vision, not surprisingly, is composed of ideas deeply rooted inAmerican society. For example, in the case of democracy, it is one that,inter alia, places considerable emphasis on formal rights and embodies awariness of state authority, generally favors individual rights over commu-nal rights, and typically accords a higher priority to political and civil rightsthan to their economic and social counterparts. These preferences, in turn,presume a relatively constrained executive power, a strong and indepen-dent judiciary (in the American, as opposed to the civil law, ideal), a rela-tively weak civil service, a sizable and vigorous bar, and a vibrant civil soci-ety. At the same time, the accompanying model of democratization seemsto exhibit great confidence in the capacity of a people, aided by law, rapidlyto build a new nation46 while displaying relatively little concern about pos-sible tensions between building state institutions and entrenching individ-ual rights, or between economic and political liberalization. Finally, im-plicit in these models is the assumption that they are readily conducive tocommunication across linguistic, national, and cultural boundaries.

Fifty years after the promulgation of the Universal Declaration ofHuman Rights and a decade following the collapse of the Soviet Union, itis understandable why one might want to treat these models as vindicated.Nonetheless, Aiding Democracy Abroad would have been a richer bookhad it inquired more deeply into the models of democracy and democrati-zation undergirding efforts of the American government to promote


democracy abroad. Consider, for example, questions raised by the writingsof two of our most eminent public intellectuals, Richard Posner47 andAmartya Sen,48 regarding the course that developing nations (and thosewho would aid them) should embrace. As Posner would have it, develop-ing nations would do well to postpone plans to create a “first-class judi-ciary or an extensive system of civil liberties” in favor of a few clear rulesregarding property and contract49 and a relatively modest judicial, arbitral,or other enforcement apparatus.50 For Sen, on the other hand, civil liber-ties and associated freedoms are not only as desired an end of develop-ment as prosperity but also an indispensable precondition for prosperity.51

The models USAID has been employing would seem hard put to accom-modate both of these visions, particularly with respect to the relationshipbetween political, economic, and legal development. Carothers’s readerswould have been well served had he provided a fuller account of thechoices made, or at least implied, by the models USAID has been utiliz-ing—for in the end, there is a normative foundation to whatever defini-tions of democracy and democratization one might employ.

A more concerted treatment of the models might also have addressedwhy “fit[ting] activities to the local environment” has proven so difficult,by raising the question of the relationship between democracy and thevalues and institutions that underlie it. This inquiry may be another wayof asking just how much and what type of change different definitions ofdemocracy may entail in current political, economic, social, and otherarrangements—and what provides a basis of legitimacy for such change.Although Carothers does not describe it in this manner, one might thinkof the history of the programs with which he is concerned as an expand-ing circle in which, over time, those advocating the promotion of democ-racy abroad have regularly broadened the ambit of the assistance beingtransmitted. That is, they have gradually added elements such as supportfor the formation of political parties, the administration and monitoringof elections, the drafting of constitutions and legislation, the building ofan independent judiciary, the strengthening of the bar, the liberation ofthe media, the buttressing of civil society, the expansion of civic educa-tion, the empowerment of women, and the creation of autonomousunions.

To some extent, this expansion has mirrored changes in the UnitedStates that have prompted us to rethink what constitutes democracy. Butperhaps in even greater measure, it has been a response to the realizationby aid providers that earlier, more skeletal exports too often fell short of


fostering democracy (as, indeed, Carothers suggests has been the situationin at least three of his case studies). Aiding Democracy Abroad does notindicate whether the activities that currently constitute democracy pro-motion should be read as a final list (in effect, an “end of history” for suchprograms) or whether proponents of democracy promotion need to antic-ipate the prospect of further, perhaps ongoing, redefinition of the modelswith which they are working. Carothers, to be sure, did not intend AidingDemocracy Abroad to be a work in political philosophy, but by failing tofocus more extensively on the conceptual wellsprings of the models ofdemocracy and democratization he would employ, he ultimately leaves thereader wondering about their contours and base of legitimacy. If, as onesuspects, Carothers believes that the vision of democracy that should in-form American promotion programs is one principally grounded in uni-versal norms of human rights as they have come to be articulated sinceWorld War II, it would have been helpful for him to have explained that.Aiding Democracy Abroad would have been stronger had he shown howthe intellectual and moral climate these norms have fostered or the set ofpractical legal instruments in which they have found expression buttresshis call for democracy promotion.52 Carothers’s study, however, makesscant mention of universal norms of human rights largely because, onefears, he sensed that such an argument might have undercut support insome Washington circles capable of exerting considerable influence overthe fate of democracy assistance programs.

Greater scrutiny of the concepts of democracy and democratization atissue might also have led Carothers to focus even more on the recipientsof democracy assistance. Aiding Democracy Abroad implores those whowould craft such programs to “give people and organizations of the recip-ient country a primary role” (p. 344), but this call, however forcefully ren-dered, still leaves many important questions unanswered. Consider, for in-stance, the issue of representation. Who speaks for a society that has yet toundertake serious political reform? Who does so for a society that is in themidst of rapid reform, but not yet democratic by any meaningful defini-tion?53 What are the implications of working through NGOs in a societyin which the state or ruling party is endeavoring assiduously to stay in-volved in all social organizations of any consequence (including unions,churches, media, advocacy groups, and the professions)?54 Does attentionto local NGOs, even in a relatively open society, run the risk of diminish-ing the voices of official representatives of the full populace in fledglingdemocratic institutions? How are we to treat a state that disenfranchises


ethnic minorities as it embraces majority rule?55 To his credit, Carothersrecognizes the danger that aid programs may be captured by members oflocal elites adept at interfacing with foreign donors. Nonetheless, onelongs for a further consideration of such questions, informed by an en-gagement of the work of scholars, survey researchers, and other observersfrom recipient countries that is more extensive than Carothers’s bibliogra-phy suggests, even recognizing the limits on expression that typically existin nondemocratic states.

C. What Are We Measuring and How?

Carothers writes insightfully about the challenges that efforts to evaluatedemocracy promotion programs present. He is especially critical ofUSAID’s espousal, growing out of the Clinton administration’s “reinvent-ing government initiative,” of a “corporate-style managing for results sys-tem” (p. 288). This system presumes that “large elements of democracy,such as a well-functioning local government or an active civil society . . .[can be reduced] down to two or three extremely narrow quantitative in-dicators” (p. 293). When compounded by “evaluators [who] rarely havein-depth experience in the country in which they are doing evaluations,”this methodology generates a “false dream of science” that is the evaluativecounterpart to the rigid democracy templates used by USAID and othersin program design, and that is also enormously wasteful and potentiallyhighly misleading (p. 287).

The question of assessment, however, poses a number of difficult prac-tical challenges that Aiding Democracy Abroad might have examinedmore fully.56 How are we to attribute success or failure to a particulardemocracy promotion effort, given that few foreign actors (beyond the aidcommunity) experience such projects directly and that the more generalimpact of these programs is likely to be inextricably linked with a host ofother influences? For example, it seems reasonable to think that factorssuch as the expectations of a populace that has long suffered under non-democratic regimes, the collapse of the Soviet Union (as the chief providerof financial and ideological support for certain nondemocratic regimes),the behavior of neighboring states, and multilateral assistance or privatephilanthropy of the type represented by George Soros,57 would be morelikely to explain moves toward democracy than a modestly funded, fairlybureaucratized U.S. governmental undertaking. Indeed, it could be thatsuch factors might even be strong enough to overcome an ill-conceived or


poorly executed democracy promotion program; or perhaps that Ameri-can and other bilateral assistance is more likely to flow to projects with agood possibility of success, rather than those with limited prospects, nomatter how worthy the latter may be relative to the former. Conversely,one could imagine a well-designed, competently executed program ofdemocracy assistance failing for a myriad of reasons, including local eth-nic tensions, distrust of the United States resulting from support of theprevious (or current) authoritarian regime,58 the unwillingness of otherimportant democratic states to support a principled American call forsanctions, and the sheer frustration of a newly liberated populace with theadjustments and delay occasioned by any serious effort at democratiza-tion.59 Moreover, there is the important question of the appropriate timeframe for judging the effectiveness of the democracy promotion programin question. Although Brian Tamanaha may well have been correct inchastising Trubek and Galanter for their impatience in writing off earlierrule of law programs as a failure after less than a decade,60 we mightnonetheless be reluctant to adopt the perspective attributed to the lateChinese premier Zhou Enlai (1899–1976), who purportedly replied to aquestion about the significance of the French Revolution with the answerthat “it is too early to say.”61

The point here is neither to expect of Carothers a comprehensive his-tory of the world nor to belittle the potential contribution that skilled so-cial scientists highly knowledgeable about the societies in question mightmake. Rather, it is first to underscore the practical difficulties of isolatingthe impact of U.S. governmental democracy promotion programs. Afterall, as Adam Przeworski of the University of Chicago, a prominent scholarof democratic transitions, concluded in a review of eighteen major studiesconcerning the relationship between regime type and growth: “The simpleanswer to the question with which we began is that we do not knowwhether democracy fosters or hinders economic growth. All we can offerat this moment are some educated guesses.”62 And it is secondly to raisethe possibility that in seeking to aid democracy abroad we may need to re-main as vigilant about what our country does as what we would urge oth-ers to do.

Efforts at measuring democracy promotion programs also require rec-ognizing that even the best delivered message will not necessarily ensurecomparable results in different settings. Notwithstanding Nebraska Sena-tor Kenneth Wherry’s famous declaration that “[w]ith God’s help, we willlift Shanghai up and ever up until it is just like Kansas City,”63 the jazz


band at Shanghai’s Heping Hotel still leaves a good deal to be desired evenbefore we get to the question of barbecue.64 To make this point is not tolose sight of the good in search of the perfect. As Alan Watson has nicelychronicled, for centuries we legal types have been lifting ideas from ourforeign compatriots, often benefiting from such legal transplantation evenin the face of imperfect understanding, incomplete replication, and inaptapplication.65

To be sure, Carothers writes about the aberrant results generated byboth the too rigid application of an American- derived template of successand the out-and-out misuse by some aid recipients of the tools we haveput in their hands. His discussion is thoughtful, but he ultimately treatsthese problems as technical ones that could largely be resolved with morecare (for example, through building more flexibility into one’s template orselecting a nicer class of aid recipients), when such difficulties may well beendemic to the enterprise and require more attention, both for practicaland normative purposes, to the possibility of unintended consequences.

Consider, for example, the case of the People’s Republic of China(PRC),66 although one could just as well substitute that of Russia,67 In-donesia,68 or several African69 or Eastern European70 states. Since the endof the Great Proletarian Cultural Revolution in the mid-1970s, the PRChas been engaged in the most concerted effort in world history to con-struct a legal system, with assistance from the U.S. government and a veri-table cavalcade of other governments, multilateral bodies, foundations,universities, and individuals. Thousands of laws and other legal measureshave been enacted; the court system has been revamped; a host of newregulatory bodies has been established; and a bar that numbered 3,000 in1979 has already multiplied more than fifty-fold (with plans to expand to300,000 over the next decade), facilitating citizen use of the legal system inunprecedented numbers.71

The conventional wisdom portrays such developments as bearing outthe PRC’s convergence, importantly influenced by the United States, to-ward the rule of law.72 Such accounts, however, fail adequately to heed theways in which these very developments may arguably be impeding, as wellas advancing, liberal legality. The Chinese state, for example, is increas-ingly invoking the law to justify both at home and abroad its harsh treat-ment of dissidents and autonomous spiritual groups.73 Corruption hasmushroomed, facilitated by opportunities for rent seeking made possibleby the bevy of new regulatory and licensing measures.74 And evidence sug-gests that some among the PRC’s burgeoning corps of legal professionals,


far from serving as a vanguard of legal and political reform, have much togain from an economy that remains perched between plan and market,subject to the discipline of neither.75

To acknowledge the underside of legal reform is neither to be dismis-sive of the way in which Chinese legal development may be empoweringthe citizenry, irrespective of the Communist Party’s intentions,76 nor tomake a blanket argument against foreign efforts to assist that develop-ment. Rather, it is to contend that serious attempts to assess democracypromotion must account for unintended and undesired consequences farmore than they have. In the case of law, such an accounting would requirethat those shaping and executing democracy promotion programs em-brace a more nuanced appreciation of the uses to which law may be put.Law has, in recent years, come to occupy an increasing role in democracyassistance because some proponents see it as promoting liberal values (atleast in the minimal sense of fostering regularity, predictability, and con-straints on the arbitrary exercise of state power). Paradoxically, however, aconsiderable number of democracy promotion advocates also tend to por-tray law as neutral and hence capable of being effectively deployed by arange of different regimes to achieve a broad spectrum of developmentalends.77 This inconsistency may in part be due to the awkwardness of rais-ing certain sensitive issues, or to the formal prohibition in the charters ofsome multilateral bodies on dealing in the political realm, but it also, Isuggest, is indicative of a serious and largely unacknowledged tension inour thinking regarding democracy promotion. We are, in effect, extollinglaw as distinguishable from politics in that it rises above the instrumentalat the same time that we are proclaiming its utility as an instrument fordevelopment (through promotion efforts that themselves might be de-scribed by some as highly instrumental). Perhaps we ought, therefore, notbe surprised that political figures facing fundamental issues of power andstate building, if not survival itself, would utilize law in ways other thanthose we might have hoped or envisioned.

D. What Are the Ethical Implications of Democracy Promotion?

As the foregoing suggests, embedded in democracy promotion are difficultethical questions. Carothers does not raise them as such, perhaps becausehe is concerned that to do so might diminish receptivity to his recommen-dations in practical policy circles, but he is certainly cognizant of the grav-ity of the undertaking about which he writes. Even in the most practical of


policy terms, however, Aiding Democracy Abroad would have been a morepowerful and enduring work had Carothers more directly addressed ethi-cal considerations that pervade the very enterprise of democracy promo-tion and that will, if his policy recommendations are adopted, move evenmore prominently to the forefront. For example, how does one weigh theintroduction of what may be useful new notions of democracy to a peopleliving under a repressive regime against the possible perpetuation of thatregime by virtue of legitimating its rule and providing it with instrumentsthat it might employ toward a repressive end? Without romanticizing thepast, what are the implications, in terms of “traditional” social arrange-ments, of the introduction of a more rights-focused, marketized approachto life?78 Are we proposing legal solutions to problems that might be betteraddressed through politics or other means?79 Is our faith in highly ratio-nal, carefully sequenced evolutionary change ultimately so illusory as to bemisleading, particularly for societies emerging from and needing to copewith searing national trauma?80 What degree of disclosure of our aspira-tions for the programs we promote do we owe to recipient regimes or theirbroader populace?81 Before or while engaging in democracy promotionprograms, what responsibility do we have to address other American gov-ernmental or private activities that may be impeding democratic develop-ment abroad? What responsibility do we have concurrently to address seri-ous impediments to the fuller realization of our ideals at home? And, ulti-mately, no matter how much we cherish that which we impart, what do webelieve entitles us to interject ourselves into the lives of others, especially ifwe are far more willing to provide advice than funding for basic needs?These and many other questions that one might raise defy ready answers,but their difficulty arguably makes it all the more crucial that they featuremore prominently in the debate over democracy promotion.

The need for more open discussion of the ethical implications ofdemocracy promotion is important, of course, not only because of theconsiderable effect such programs may have on those on the receivingend, but also because of their influence on those providing the assistance.One major illustration of the hubris that infuses the democracy promo-tion effort has been the near absence of serious scrutiny of what such un-dertakings mean for those on the transmitting end.

History suggests that the experience of endeavoring to shape others in-evitably shapes us, both with respect to our thinking about our own soci-ety, the complexity of legal reform, and law more generally, and with re-spect to our reaction to exercising the quite considerable power these ef-


forts frequently bestow. To take one cogent example from American legalacademe, it is no exaggeration to say that the critical legal studies move-ment emerged in part from the disillusionment of David Trubek and oth-ers who, in attempting to utilize American models of liberal legality totransform Brazil while under contract to USAID, became profoundlyskeptical about the claims of those models, even on their home terrain.82

But the impact might well be felt in very different ways, as borne out, forinstance, by Roscoe Pound who, after serving as a key adviser on legal re-form to the government of the Republic of China during the Chinese civilwar of the late 1940s, reacted to the failure of the measures he proposed totake hold in China by embracing the fervent anti-communism of SenatorJoseph McCarthy following his return home.83 And as recent attempts byforeign actors to influence our presidential elections suggest, some lessons,intended or otherwise, of our democracy promotion programs may havebeen absorbed only too well.84

IV. Conclusion

One response to the type of questions posed in this Review might be thatpractically minded people—whether situated principally in the publicarena or academe—faced with what may be a narrow window of opportu-nity and a host of difficult real-world obstacles, simply do not have theluxury of pondering so many open-ended issues if they wish to advancethe cause of democracy. As a distinguished legal philosopher now involvedwith issues of international development recently informed me, it is niceto play with different definitions of the rule of law, but at some point, oneneeds to decide what constitutes best practice internationally and to act onit. Indeed, Carothers himself, notwithstanding an impressive intellectualpedigree that includes service as an editor of [Harvard] Law Review, everso politely evidences a touch of this impatience when he sets forth reasonsfor what he describes as the “gap between theory and practice on democ-ratization” (p. 94).

Understandable though the desire to just get on with it may be, such astance is ultimately no less problematic than the comparably understand-able impulse of David Trubek, Marc Galanter, and other scholars a quartercentury ago who chose to distance themselves from law and developmentstudies because their experience with USAID and other government-funded democracy promotion work raised such serious questions of


hypocrisy and illegitimacy as to leave them in a self-described state of“self-estrangement.”85 There is no single easily reducible set of interna-tional best practices or “killer theorem” (to use the term that Foreign Af-fairs managing editor Fareed Zakaria employed in a recent review to de-scribe what he finds lacking in Amartya Sen’s book Development as Free-dom).86 Nor, if one thinks seriously about it, could there be such aclear-cut answer regarding the fostering of democracy, given the broadspectrum of actual and potential recipients and donors; the vast, dynamic,and inherently disorderly array of issues encompassed worldwide underthe fluid heading of democracy assistance; and the normative character ofso much of the endeavor. Self-estrangement is, alas, no more tenable a po-sition. The desire, on the one hand, of individuals living in difficult cir-cumstances to transform their lives materially and politically and, on theother, of persons with the opportunity and resources to try to transformother societies, surely has not and will not abate merely because a group ofwell-intentioned American law professors have withdrawn in disgust fromwhat they have come to believe are potentially unsavory dimensions of theeffort.87

The foregoing criticisms may sound as if they constitute a roundaboutendorsement of a substantial role for academics either in providing theconceptual underpinnings of democracy assistance or in facilitating its ex-ecution, as if that were some type of panacea. But, to a considerablygreater degree than Carothers suggests, that role has already been (and isstill being) tried, with results that, in their own way, are not necessarilymore attractive than those that (at least some) bureaucrats, politicians,and policy analysts have been able to achieve on their own.88 More than afew exponents of the type of totalizing theory now dominant in Americanlegal academe, whether from the right or the left, fail to appreciate justhow much of what they present as universal, upon closer scrutiny, mirrorsour own quite distinctive legal and political institutions. Consequently,they approach legal reform in other societies as if the past were little morethan an encumbrance that the clear-minded should be only too ready todiscard for a future remarkably akin to ours.89 At times, even such basicdifferences as those between common and civil law systems are slighted,with the result that the lawmaking role of judges in the former system(who typically are drawn from the ranks of accomplished attorneys) isrecommended for their foreign counterparts who, in some instances, arerecent university graduates with limited legal experience working in an in-stitutional context bearing many of the indicia of a civil service.90 But if


too great a distance from other societies is problematic, immersion in theminutiae of another society of the type that some area studies specialistshave used to position themselves as brokers is clearly no substitute for amore richly theoretical, broadly comparative, and historically groundedunderstanding of democracy and the processes of political change.91

Moreover, no matter how sound the advice academics provide, it is notnecessarily cost-free. In measuring the gains registered by scholars’ partici-pation in democracy promotion (particularly if government-sponsored),we need to take account of the ways in which such involvement may colortheir perspective (by, for example, giving them a vested interest in a partic-ular position) or lead others, even erroneously, to question the motiva-tions behind their scholarly work.92 Indeed, it may be that the most valu-able contribution that academics, both in the United States and in recipi-ent nations, have to make is their somewhat singular capacity to see (andcritique) democracy promotion in a fuller and perhaps more detachedsense than those who are more directly engaged in it.

My point here has to do with the ways in which those of us concernedwith democracy promotion approach the endeavor. If we remain mindfulboth of the diverse challenges, intellectual and practical, that democracypromotion presents and of at least the stated goals of the enterprise (em-phasizing such values as participation and accountability), the challengefor scholar and active promoter alike is a daunting one for which, by defi-nition, there are no easy answers. In this context, it would, of course, seemvital to increase our understanding of the history of those we aspire to as-sist so that we might more fully discern their needs and circumstances.That, in turn, might better equip us to avoid supporting parties whose de-sire for our financial and other assistance runs deeper than their commit-ment to democracy, minimize unreasonable expectations both home andabroad, and reduce the likelihood that our involvement will lead to thetype of undesired outcomes that Sun Yat-sen (1866–1924), the father ofNationalist China, bemoaned when he wrote: “China, too, must have arepresentative government! But the fine points of Western representativegovernment China has not learned; the bad points she has copied tenfold,a hundredfold! China has not only failed to learn well from Western de-mocratic government but has been corrupted by it.”93

But in addition to examining potential recipients more fully, thethoughtful study and practice of democracy promotion requires that welook inward, reflecting far more than has been the case both on prior ef-forts at democracy promotion (if not proselytizing more generally) and


on the nature of the democratic experience in our nation and throughoutthe world. In reflecting on our own experience, for example, considerationof the work of our intellectual and practical predecessors in democracypromotion over the past century would reveal that a surprisingly largeproportion of what is now being proposed has, at least in its broad out-lines, already been tried—as evidenced by the experience of legal scholarsas diverse as Pound and Trubek, among many others.94 Understandingwhy such noteworthy figures, amply funded, buttressed by the reputationsof leading American law schools, and with ready access to important gov-ernmental circles here and in recipient nations, found success elusive andwere themselves molded by those they thought they would be molding hasthe potential to be illuminating. Indeed, such an understanding would beinstructive both for us and for those we would assist, even if we take ac-count of how democracy assistance programs and the world in which theyoperate have changed.95 Further reflection on our own history might leadus, for example, to present it less as inevitably culminating in the finishedproduct of our own current institutions and laws, and more as the resultof ongoing and often hotly contested battles, the outcomes of which haveby no means been assured. That reflection, together with more concertedconsideration of how other countries have dealt with such issues, mightnot only provide would-be aid recipients with a broader range of potentialalternatives, but might also, by dispensing with the notion of a certainconvergence along American lines, be empowering in the sense of sendingthe message that they might develop yet additional possibilities fromwhich we, too, might in time learn.96

The foregoing suggests the value of a deep humility of the type boththat Carothers expressly calls for and that nicely informs Aiding Democ-racy Abroad. In the end, this may be as close to a watchword for success aswe can reasonably expect to identify for so majestic but difficult a ventureas democracy promotion.

Postscript

Among the myriad of valuable lessons, both professional and personal,that I have learned over the years from Jerry Cohen is that one shouldnever be afraid to ask hard questions, provided one can do so in a spirit ofhonest inquiry and with fairness. This is a practice that has served Jerrywell throughout his long and distinguished career—and it is one that I


have endeavored to follow as Jerry’s student, friend, and, as he would putit, “revolutionary successor” at East Asian Legal Studies.

I can bear personal witness that Jerry’s advice was heartfelt. In myvery first piece as a law professor, I took (polite) issue with Jerry as Isought to portray nineteenth-century Chinese criminal law. Emboldenedby the graciousness and good humor with which Jerry took this, two yearslater, I took the practice further, delivering a paper at the annual compara-tive law meetings that subsequently became a short article in which Iraised methodological questions about the study of contemporary Chi-nese law that took issue at points with Jerry. Again, Jerry displayed re-markable magnanimity and good spirit, coupled with the intellectual cu-riosity and vivacity that are so characteristic of him.

This essay is very much in the vein I have just described. It does not ad-dress Jerry directly (he’ll no doubt be relieved to know that I have movedon to other targets) but it does very much raise questions of the type thathe taught me to ask regarding subjects about which he has cared deeplyand with respect to which he has made a lasting contribution. While I sus-pect that with his unceasing optimism and natural ebullience, he mightapproach some of the issues my piece raises in a slightly different manner,I trust that he and our friends will appreciate that in its willingness to askhard questions, this article bears out my thorough-going and unstintingaffection for and indebtedness to him. Happy 70th birthday Jerry—andthank you.

n o t e s

Book review of Thomas Carothers, Aiding Democracy Abroad: The Learning Curve.Previously published in 113 Harvard Law Review 1677–1715 (2000). Reprinted bypermission from Harvard Law Review. Copyright 2000 Harvard Law Review Asso-ciation; William P. Alford.

I am grateful to Jonathan C. Carlson, Jacques deLisle, Marsha Echols, Paul D.Gewirtz, Stanley B. Lubman, Makau wa Mutua, John K.M. Ohnesorge, John C.Reitz, Arthur I. Rosett, Anne-Marie Slaughter, Henry J. Steiner, Matthew Stephen-son, Richard Wasserstrom, Kenneth I. Winston, and the editors of the HarvardLaw Review who worked on this piece, though I alone bear responsibility for theviews herein expressed. I also want to thank the University of Iowa College of Lawfor inviting me to deliver the Ida Beam Distinguished Lecture through which Iwas able to develop ideas set out in this Review, and the Harvard InterfacultySeminar on International Ethics and the Professions. Finally, I thank the Harvard


Law School for research support as well as Benedict Hur and the indefatigablestaff of the Harvard Law Library for securing needed materials. This Review isdedicated to the memory of three dear faculty colleagues, Gary Bellow, AbeChayes, and Jim Vorenberg, each of whom exemplified the best American law hasto offer.

1. Statement of a Chinese student at the China Center for American LawStudy, Beijing, PRC (July 1987).

2. Holmes’s and Snyder’s praise appear on the book’s dust jacket.3. See Tina Rosenberg, Editorial Observer: America Finds Democracy a Diffi-

cult Export, N.Y. Times, Oct. 25, 1999, at A30.4. See Michael Mandelbaum, Civics Class, N.Y. Times, Dec. 12, 1999, §7 (Book

Review), at 22.5. See Frank E. Loy, Letter to the Editor, N.Y. Times, Jan. 30, 2000, §7 (Book

Review), at 4.6. Soros’s quotation appears on the book’s dust jacket.7. The United States is hardly unique in this regard. See generally, e.g., A Cen-

tury’s Journey: How the Great Powers Shape the World (Robert A. Pastor ed.,1999) (examining the United States, Great Britain, France, Germany, Russia,Japan, and China as case studies).

8. See generally The Missionary Enterprise in China and America (John K.Fairbank ed., 1974); David J. Bosch, Transforming Mission: Paradigm Shifts inTheology of Mission (1991); Paul A. Cohen, China and Christianity: The Mission-ary Movement and the Growth of Chinese Antiforeignism 1860–1870 (1963);Elizabeth Isichei, A History of Christianity in Africa: From Antiquity to the Pre-sent (1995); Sushil Madhava Pathak, American Missionaries and Hinduism: AStudy of Their Contacts from 1813 to 1910 (1967).

9. Building on longstanding ideas of convergence toward a Western model,“modernization theory” grew out of the structural- functionalism of the notedHarvard sociologist Talcott Parsons, who saw society as organized to address spe-cific functions. See Colin Leys, The Rise and Fall of Development Theory 9(1996). Particularly as applied in the 1960s, modernization theory presumed thatsociety would pass through stages of increasing modernity, and that the UnitedStates and other major Western nations represented the pinnacle of this progres-sion. See generally Walt Whitman Rostow, The Stages of Economic Growth: ANon-Communist Manifesto (1960). Some of its leading academic exponents, suchas Walt Whitman Rostow of the Massachusetts Institute of Technology, endeav-ored to foster the application of these ideas through government service. Althoughmodernization theory itself is now out of favor, many of its basic assumptionslinger in developmental studies.

10. For an example of this “gospel,” see Nathan Rosenberg and L.E. Birdzell,


Jr., How the West Grew Rich: The Economic Transformation of the IndustrialWorld 242–68 (1986).

11. It is important not to overstate the break with the past. There are tens ofmillions of people in China, Cuba, North Korea, Vietnam, and even parts of East-ern Europe and the former Soviet Union to whom the conclusion of the Cold Warwould be news. See, e.g., John W. Garver, Foreword to In the Eyes of the Dragon:China Views the World at vii, x (Yong Deng and Fei-Ling Wang eds., 1999)(“[M]any Chinese believe that the very existence of the coalition of democraticcountries is a ‘remnant of Cold War mentality. . . .’”). For example, some Beijingresidents assumed that the accidental bombing by U.S. planes (under North At-lantic Treaty Organization command) of the embassy of the People’s Republic ofChina (PRC) in Belgrade during the spring of 1999 was willfully undertaken toteach China a lesson. See Seth Faison, China Honors 3 Killed in Belgrade, but theStreet Protests End, N.Y. Times, May 14, 1999, at A13. Moreover, even as many in-dividuals in formerly Communist countries express deep gratitude for Americansupport, doubts about the motivations of the United States persist in some circles,exacerbated at times by the difficulties of the adjustment to a new era. See, e.g., Ja-nine R. Wedel, Collision and Collusion: The Strange Case of Western Aid to East-ern Europe 1989–1998, at 42–43 (1998); Patrick E. Tyler, Russia’s Communists,Still Active, Await an Opening, N.Y. Times, Mar. 13, 2000, at A6 (describing ongo-ing support for the Communist Party in Russia); Lech Walesa, “I see the Commies,I see the clever guys doing well,” N.Y. Times, Nov. 7, 1999, §6 (Magazine), at 81(expressing doubts about Poland’s parliamentary democracy and criticizing thefailure of Western leaders to provide sufficient aid to Eastern Europe).

12. American democracy promotion has extensive antecedents. Consider, forexample, the case of China. A century ago, W.A.P. Martin and other missionariescoupled their religious message with a call for the Chinese to absorb Western legalprinciples. See W.A.P. Martin, The Siege in Peking: China against the World142–70 (1900); see also Helen H. Kim, The Ambiguities of Superiority: W.A.P.Martin and the Analog between Introducing Christianity and International Law toChina (April 28, 1997) (unpublished manuscript, on file with the Harvard LawSchool Library) (discussing Martin’s attempts to spread both Christianity andAmerican ideas of legality in China). During the first half of the twentieth cen-tury, distinguished academics such as President Frank Goodnow of the JohnsHopkins University and Dean Roscoe Pound of the Harvard Law School endeav-ored to convince different Chinese governments of the need to remake themselvesand their legal institutions along American lines. See Frank J. Goodnow, Reformin China, 9 Am. Pol. Sci. Rev. 209, 219 (1915); Roscoe Pound, Problems of a Mod-ern Judiciary 21–31 (unpublished manuscript, on file with the Harvard LawSchool Library); Roscoe Pound, Second Report for 1947 (1947) (unpublishedmanuscript, on file with the Harvard Law School Library); Roscoe Pound, The


Training, Mode of Choice and Tenure of Judges 16–18 (unpublished manuscript,on file with the Harvard Law School Library).

Other countries, such as the Philippines, Germany, and Japan, furnish addi-tional examples. See generally Tony Smith, America’s Mission: The United Statesand the Worldwide Struggle for Democracy in the Twentieth Century (1994). Thepertinence of this history for contemporary democracy promotion is discussedbelow. . . .

13. See, e.g., Remarks to the United States Institute of Peace, 35 Weekly Comp.Pres. Doc. 591, 595 (Apr. 7, 1999) (praising programs that allow Chinese lawyersand judges “to come to America to study our system”).

14. This figure is roughly equivalent to 10% of “traditional nonmilitary for-eign aid,” or 0.01% of our gross national product as of 1997. Karen DeYoung, U.S.Grows Stingier on Foreign Aid: Amid Prosperity, Country Is World’s Least Gener-ous in Helping Poor, Int’l Herald Trib., Nov. 26, 1999, at 1. But cf. Doug Bandow,The Capitol Eye: Isolationist Myths, Copley News Service, Dec. 14, 1999, availablein LEXIS, News Library, COPNWS File (arguing that the United States remainsmore engaged in the world than proponents of greater foreign assistance suggest).

15. Larry Diamond chronicles such actors in Promoting Democracy in the1990s: Actors and Instruments, Issues and Imperatives (1995). For a thoughtfuloverview of U.S. assistance concerning law, see Jacques deLisle, Lex Americana?United States Legal Assistance, American Legal Models, and Legal Change in thePost-Communist World and Beyond, 20 U. Pa. J. Int’l. Econ. L. 179 (1999).

16. Other noteworthy works, representing an array of perspectives, includeExporting Democracy: The United States and Latin America: Themes and Issues(Abraham F. Lowenthal ed., 1991); Joshua Muravchik, Exporting Democracy: Ful-filling America’s Destiny (1991); William I. Robinson, Promoting Polyarchy: Glob-alization, US Intervention, and Hegemony (1996); Smith, supra note 12; andHoward J. Wiarda, Cracks in the Consensus: Debating the Democracy Agenda inU.S. Foreign Policy (1997).

17. See Thomas Carothers, Assessing Democracy Assistance: The Case of Ro-mania (1996); Thomas Carothers, In the Name of Democracy: U.S. Policy towardLatin America in the Reagan Years (1991); Thomas Carothers, The Rule of LawRevival, Foreign Aff., Mar./Apr. 1998, at 95.

18. See Francis Fukuyama, The End of History and the Last Man at xi–xxiii(1992).

19. See, e.g., Bruce Ackerman, The Future of Liberal Revolution 122 (1992);Smith, supra note 12, at 369.

20. See, e.g., Steven G. Calabresi, An Agenda for Constitutional Reform, inConstitutional Stupidities, Constitutional Tragedies 22, 22 (William N. Eskridge,Jr. and Sanford Levinson eds., 1998) (“[T]he Federalist Constitution has proved tobe a brilliant success, which unitary nation states and parliamentary democraciesall over the world would do well to copy”). But see Bruce Ackerman, The New


Separation of Powers, 113 Harv. L. Rev. 633, 634–40 (2000) (quoting Calabresiand disapproving of his overzealous promotion of the American constitutionalsystem). With respect to cause lawyering, see Austin Sarat and Stuart Scheingold,Cause Lawyering and the Reproduction of Professional Authority: An Introduc-tion, in Cause Lawyering: Political Commitments and Professional Responsibili-ties 3, 6 (Austin Sarat and Stuart Scheingold eds., 1998) (urging cause lawyersworldwide to focus on the American example). But see Stephen Ellmann, CauseLawyering in the Third World, in Cause Lawyering: Political Commitments andProfessional Responsibilities, supra, at 349, 356 (arguing that the contribution ofdeveloping country cause lawyers to “the world’s human rights culture” is more“original and substantial” than generally recognized in the West).

21. Soros’s quotation appears on the book’s dust jacket.22. Woodrow Wilson, Necessity of War against Germany, Address to Congress

(Apr. 2, 1917), in Selected Addresses and Public Papers of Woodrow Wilson 195(1918).

23. Carothers seems to confuse the two Rostow brothers—the political econo-mist Walt Whitman Rostow and the legal scholar (and later Dean of the Yale LawSchool) Eugene Victor Debs Rostow—both of whom served in the Kennedy ad-ministration.

24. For a depiction of the range of such efforts, see generally Diamond, supranote 15. Throughout Aiding Democracy Abroad, Carothers devotes little attentionto nongovernmental programs. Instead, he scrutinizes U.S. government programslargely in isolation, even though one of his principal recommendations is that of-ficials responsible for democracy promotion “should push to build a relationshipbetween aid for democracy and the larger, more established world of aid for socialand economic development” (p. 344). The implications of his treatment of U.S.government programs in relative isolation are discussed below. . . .

25. See, e.g., Wedel, supra note 11, at 34 (noting that USAID programs in East-ern Europe after the fall of communism “generally discouraged risk taking and al-lowed little flexibility”). Carothers discusses the limitations of USAID’s reliance onan “external project method” (pp. 257–59) and criticizes its faith in “the falsedream of science” (pp. 287–97). See infra. . . .

26. See Guillermo O’Donnell and Philippe C. Schmitter, Transitions from Au-thoritarian Rule: Tentative Conclusions About Uncertain Democracies (1986); seealso 4 Democracy in Developing Countries: Latin America (Larry Diamond, JuanJ. Linz, and Seymour Martin Lipset eds., 1989).

27. See David M. Trubek and Marc Galanter, Scholars in Self- Estrangement:Some Reflections on the Crisis in Law and Development Studies in the UnitedStates, 1974 Wis. L. Rev. 1062.

28. See, e.g., Ackerman, supra note 20, at 643–64.29. The complexity of the term is discussed in Adam B. Seligman, The Idea of

Civil Society (1992).


30. See DeYoung, supra note 14 (noting the decline in American foreign aidsince the end of the Cold War). But cf. Bandow, supra note 14 (expressing the viewthat it is the quality rather than the quantity of involvement abroad that matters).

31. For a portrayal of the Kantian argument, see Bruce Russett, Grasping theDemocratic Peace: Principles for a Post Cold-War World (1993); and Michael W.Doyle, Kant, Liberal Legacies, and Foreign Affairs, Part I, 12 Phil. & Pub. Aff. 205(1983).

32. See, e.g., Mancur Olson, Power and Prosperity: Outgrowing Communistand Capitalist Dictatorships 89–100 (2000); Amartya Sen, Development as Free-dom 146–59 (1999).

33. One has the sense, more than occasionally, of scholars in the Americanacademy seeking to vindicate signature theoretical positions through the invoca-tion of foreign examples that purportedly bear out the wisdom of their views. Theways in which both American and Chinese scholars have done this vis-‡-vis oneanother is the subject of Richard Madsen, China and the American Dream: AMoral Inquiry (1995). Unfortunately (or perhaps fortunately), Madsen’s subtlebook does not encompass legal studies.

34. Consider, for example, the Clinton administration’s rule of law initiativefor the PRC, which Carothers discusses briefly in The Rule of Law Revival, supranote 17, at 106. Without downplaying either the importance of the PRC’s develop-ing greater respect for legality or the commitment of those in the United States in-volved in that undertaking, one might take note of its perceived potential to helpthe administration navigate some very difficult domestic political shoals. Since thetime of the Chinese government’s violent termination of the occupation ofTiananmen Square by students and workers in 1989, the American business andhuman rights communities have been at odds over the U.S. government’s ap-proach toward China, with the former advocating a policy of engagement and thelatter arguing that human rights considerations should be prominent even at therisk of offending Beijing. See William P. Alford, MFN Fiasco Exposes Need for aBetter China Policy, Christian Sci. Monitor, July 8, 1994, at 19. A U.S. governmentprogram directed at helping the PRC build basic legal infrastructure not onlyspoke to a need identified by both the Beijing government and at least some Chi-nese dissidents, but also in the mid-1990s provided a rare way for an administra-tion facing reelection to reach out to business interests that had some wariness to-ward the Democratic Party while also taking steps that might over time advancethe objectives of the human rights community. See William P. Alford, In China,Respect for Law Must Come First, L.A. Times, Feb. 2, 1995, at B7 (discussing thepertinence of legal development for both the business and human rights agendas).The considerable challenges confronting efforts to foster legal development inChina are discussed below. . . . See also William P. Alford, To Steal a Book Is an El-egant Offense: Intellectual Property Law in Chinese Civilization 112–23 (1995)(considering the interplay between human rights and property rights).


35. As William Robinson suggests, the rhetoric of democracy promotion israther more appealing than that of polyarchy or domination. See Robinson, supranote 16, at 4. Other oft-used terminology warrants scrutiny as well. For example,we need to guard against the assumption that “transitional” means that a nation isinexorably moving toward democracy or marketization.

36. Carothers’s generally well-researched book touches only fleetingly on thequestion of the economic and other interests of individuals and firms involved inthe “democracy promotion industry” itself. Others have been somewhat less deli-cate about describing consultants feathering their own nests. See, e.g., Wedel,supra note 11, at 45–82.

37. Carothers speaks of U.S. democracy assistance at the time of the Philippinetransition as providing “a crucial boost to the emergence of democracy aid gener-ally” (p. 37). For an account of the termination of the military base lease, seeDavid Joel Steinberg, The Philippines: A Singular and a Plural Place 176–80 (3ded. 1994). A similar tension is arguably at play in the United States–Taiwan rela-tionship, with Washington expressing irritation at statements by Taipei’s politicalleadership that it views as needlessly provocative of Beijing. There seems insuffi-cient appreciation on the American side of the need for the leaders of an increas-ingly democratic Taiwan to respond to and express popular sentiments. SeeRobert A. Manning and James Przystup, Straits Jacket: The “One China” Problem,New Republic, Sept. 27, 1999, at 13 (discussing Washington’s difficulties in adjust-ing to the growth of democracy in Taiwan).

38. By way of illustration, consider the ways in which the Clinton administra-tion has routinely oversold the significance of dimensions of its China policy con-cerning matters such as intellectual property protection, military cooperation,rural elections, and most recently, the PRC’s accession to the World Trade Organi-zation (WTO). See, e.g., Remarks at the Paul H. Nitze School of Advanced Inter-national Studies, 36 Weekly Comp. Pres. Doc. 487 (Mar. 8, 2000) (illustrating thePresident’s tendency to overstate the certainty, extent, and speed of change that hisadministration’s policy vis-‡-vis China will bring); see also Remarks at a Democ-ratic Leadership Conference in San Jose, California, 36 Weekly Comp. Pres. Doc.709, 715 (Apr. 3, 2000) (“[T]he narrow, or broad, economic consequences [of thePRC’s accession to the WTO] are 100–0 in our favor”). Such exaggeration, per-haps believed necessary to generate public support for a policy toward whichstrong opposition has been voiced in Congress, is not without its baleful effects. Ithas the potential to raise undue expectations on the part of the American popu-lace which, in turn, may foster a sense that the PRC has betrayed its obligations tothe United States. Moreover, it may even weaken the position of our would-be al-lies in the PRC by overstating the concessions they may have made to the UnitedStates during negotiations or by accentuating the possibility that measures pur-portedly taken principally for economic reasons, such as accession to the WTO,may induce major political change. See James V. Feinerman, Free Trade, to a Point,


N.Y. Times, Nov. 27, 1999, at A15 (urging sobriety in characterizing America’s ca-pacity to influence China); see also William P. Alford, Making the World Safe forWhat? Intellectual Property Rights, Human Rights and Foreign Economic Policyin the Post-European Cold War World, 29 N.Y.U. J. Int’l L. & Pol. 135, 146–52(1996–97) (discussing the formation of U.S. policy toward the PRC).

39. Senator Jesse Helms expressed such sentiments, albeit in a rather exagger-ated form, in a recent speech to the United Nations Security Council. See In theWords of Helms: “A Lack of Gratitude,” N.Y. Times, Jan. 21, 2000, at A8 (contain-ing excerpts from Senator Helms’s speech).

40. At times, Americans have used our government’s efforts abroad to pressfor a fuller realization at home of our stated ideals. In an intriguing recent study,Azza Salama Layton depicts how the leadership of the American civil rights move-ment used its “awareness of the nexus between U.S. racial policies and the govern-ment’s ability to sell democracy abroad, especially in Africa and Asia” during theearly Cold War years to advance the cause of equality for African-Americans. AzzaSalama Layton, International Politics and Civil Rights Policies in the UnitedStates, 1941–1960, at 73–74 (2000).

41. The New York Times editorial page, for example, has recently argued thatU.S. assistance for drug interdiction efforts in Colombia may have the effect ofimpairing democratic development there. See Editorial, Dangerous Plans forColombia, N.Y. Times, Feb. 13, 2000, §4, at 16.

42. For example, Aiding Democracy Abroad does not contain an index entryfor the Ford Foundation despite its extensive support for almost a half century oflegal development in Asia, Africa, and Latin America. Ford’s role is recounted inthe Ford Foundation, Many Roads to Justice: The Law Related Work of FordFoundation Grantees around the World (Mary McClymont and Stephen Golubeds., 2000).

43. See supra, sections II.B–C. . . .44. See Trubek and Galanter, supra note 27, at 1097 (noting American lawyers’

preference for pragmatic problem solving). Carothers sees European models ofdemocracy and democratization as having a more ideological or theoretical foun-dation than their American counterparts because a considerable portion of Euro-pean (and especially German) democracy assistance has been channeled throughparty foundations and is “usually focused more on long- term party building thanon specific campaigns” (p. 150). This results, he suggests, in certain “entrenchedflaws,” namely “dogmatic efforts to teach party ideologies, an overemphasis on rit-ualized exchange visits and conferences, and the often forced method of identify-ing and cultivating ideological partners” (p. 142).

45. See, e.g., deLisle, supra note 15, at 199–200 (discussing the role of legalacademics and law schools in law reform work in the former Soviet Union, East-ern Europe, and China). Although focused on a project funded by the United Na-tions Development Programme, the book Legislative Drafting for Market Reform:


Some Lessons from China (Ann Seidman, Robert B. Seidman, and Janice Payneeds., 1997) contains accounts by a group of American academics assisting legisla-tive drafting in the PRC.

46. This statement mirrors the self-perception of America, in the words ofSeymour Martin Lipset, as “the first new nation.” Seymour Martin Lipset, TheFirst New Nation: The United States in Historical and Comparative Perspective 2(1979) (internal quotation marks omitted).

47. See Richard A. Posner, Creating a Legal Framework for Economic Devel-opment, 13 World Bank Res. Observer 1 (1998).

48. See Sen, supra note 32.49. Posner, supra note 47, at 9. These rules, Posner suggests, might be bor-

rowed “wherever possible from established foreign models,” and adjusted, if neces-sary, for local conditions. Id. at 6.

50. See id. at 7. The logic of Posner’s position is that “an extensive system ofcivil liberties” and an elaborate judiciary absorb human and other resources that adeveloping society can ill afford to lose from more productive economic activity.Id. at 9. One need not move to the opposite extreme (that is, that all societies areor should be adopting the type and volume of laws that the economically ad-vanced nations have) to note that Posner’s argument is flawed, even were we toposit the centrality that he accords economic development. A modest system ofcivil liberties may impede economic development (if, for instance, the media andnongovernmental organizations lack the legal protections needed to report vigor-ously on corruption, mismanagement, or other sensitive information importantto the operation of a marketplace). Moreover, it seems doubtful that limiting sub-stantive law to a few clear rules regarding property and contract will adequatelyserve the needs of a nation undergoing rapid economic transformation (with at-tendant social dislocation and disruption of historic modes of dispute resolution),prevent harassment of those who might compete economically with those who arewell connected, or satisfy the demands of the international business community,which is likely to seek a higher rate of return to compensate for the perceivedheightened risk resulting from the absence of effective legal protections. In addi-tion, we should guard against the assumption that the involvement of interna-tional business will necessarily lead to an overall improvement in public legal in-stitutions. As I suggest elsewhere, foreign parties doing business in the PRC appearto be pursuing a variety of strategies to achieve their ends. These involve resort toarbitration (in effect establishing a private system of justice for multinational en-terprises while doing little to enhance public institutions) and, less attractively, re-liance at times on extralegal measures. See William P. Alford, The More Laws, theMore . . . ? Measuring Legal Reform in China 14–24, 33–34 (Jan. 2000) (unpub-lished working paper of the Center for Research on Econ. Dev. and Policy Reformof Stanford Univ., on file with the Harvard Law School Library) [hereafter Alford,The More Laws, the More . . . ?].


Posner’s work, incidentally, has been very influential in post-Maoist China,perhaps because it rings of economic determinism purged of redistribution.

51. See Sen, supra note 32, at 35–53. Sen is not oblivious to the economic andsocial accomplishments of authoritarian regimes, but argues that history bears outthat “the process of preventing famines and other crises is significantly helped bythe use of instrumental freedoms.” Id. at 188.

52. Carothers might, for example, have shown how scholars such as HenrySteiner and Thomas Franck have advanced the argument that the chance to par-ticipate in one’s own governance is not just a preference, but a right. See Henry J.Steiner, Political Participation as a Human Right, 1 Harv. Hum. Rts. Y.B. 77(1988); see also Thomas M. Franck, The Emerging Right to Democratic Gover-nance, 86 Am. J. Int’l L. 46, 46 (1992) (“Democracy . . . is on the way to becominga global entitlement. . . .”).

53. At least by implication, Samuel Huntington suggests that it is better toconcentrate attention on political elites, rather than the populace more generally.The rationale for this focus, he believes, is that apart from economic development,the key factor “affecting the future stability and expansion of democracy [is] . . .political leadership” whereas a society’s culture itself changes much more slowly.Samuel P. Huntington, The Third Wave: Democratization in the Late TwentiethCentury 315–16 (1991). As manifested in USAID and other American democracypromotion programs, legal assistance has predominantly taken the form ofstrengthening state institutions and associated elites (even if with a longer-termobjective of facilitating the empowerment of the populace).

54. For example, my research regarding lawyers in the PRC (whose ranks haveswelled from 3,000 in 1979 to approximately 175,000 in 2000) suggests that thenational lawyers’ association, if not the bar more generally, is appreciably less au-tonomous than most observers would indicate. American and other foreign ac-tors seem all too ready to embrace putative counterparts in China, little recogniz-ing how closely tied some such entities remain in a corporatist fashion to stateand Communist Party authorities. See infra. . . . The dilemma of the Chinese barand the reasons it has not been better understood in this country are the subjectof William P. Alford, Of Lawyers Lost and Found: Liberal Legal Professionalismand the People’s Republic of China (December 1998) (unpublished manuscript,on file with the Harvard Law School Library) [hereafter Alford, Of Lawyers Lostand Found]. For an analysis of the ways in which the PRC’s emerging businesscommunity has remained linked to the party, see Margaret M. Pearson, China’sNew Business Elite: The Political Consequences of Economic Reform 100–115(1997).

55. See generally Amy L. Chua, Markets, Democracy, and Ethnicity: Toward aNew Paradigm for Law and Development, 108 Yale L.J. 1 (1998) (discussing thedifficulties that ethnic resentment may pose for efforts to foster democratic andmarket- oriented institutions). The capacity of a democratic majority to inflict


harm on a minority should remind persons engaged in democracy promotion ofthe potential for tension between democracy and other values.

56. Elsewhere I discuss the difficulties of measuring legal development and itsrelationship to economic development, noting what I understand to be limitationsin the work of economists such as Andrei Shleifer and Robert Vishny. See Alford,The More Laws, the More . . . ? supra note 50, at 6–14. The question of how best toquantify the interplay between legal and economic development is a topic garner-ing increasing attention among from lawyers and economists. Two recent note-worthy studies are Katharina Pistor and Philip A. Wellons, The Role of Law andLegal Institutions in Asian Economic Development 1960–1995 (1999); and DanielBerkowitz, Katharina Pistor, and Jean-Francois Richard, Economic Development,Legality, and the Transplant Effect (February 2000) (unpublished manuscript, onfile with the Harvard Law School Library). For a thoughtful essay on the chal-lenges posed by efforts to measure legal development empirically, see MatthewStephenson, The Rule of Law: Toward a Definition for Political Scientists (Spring1999) (unpublished manuscript, on file with the Harvard Law School Library).

57. The massive involvement of donors beyond the U.S. government (includ-ing private philanthropists, foreign governments, and multilateral organizations)counsels caution in attempting to distinguish the impact of official programs. In-deed, donor competition, which some recipients work to great advantage, has be-come a problem. For a biting critique of the ways in which some aid recipientsmanipulate donors, see Andras Sajo, Universal Rights, Missionaries, Converts, and“Local Savages,” 6 East Eur. Const. Rev. 44, 48–49 (1997).

58. Witness, for instance, the complex feelings toward the United States inSouth Korea, where considerable good will is tempered in some circles by memo-ries of American support for the Chun Doo-Hwan regime. See Heng Lee, Uncer-tain Promise: Democratic Consolidation in South Korea, in The Politics of De-mocratization: Generalizing East Asian Experiences 148, 150 (Edward Friedmaned., 1994).

59. See generally Jon Elster, Claus Offe, and Ulrich K. Preuss with FrankBoenker, Ulrike Goetting, and Friedbert W. Rueb, Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea (1998).

60. See Brian Z. Tamanaha, Lessons of Law-and-Development Studies, 89 Am.J. Int’l. L. 470, 473 (1995) (reviewing Law and Crisis in the Third World [SammyAdelman and Abdul Paliwala eds., 1992]; and Law and Development [AnthonyCarty ed., 1993]).

61. David Wallen, Heseltine Is at the Centre of Power, S. China Morning Post(Hong Kong), July 8, 1995, available in LEXIS, News Library, SCHINA File (quot-ing Zhou Enlai). For more on the issue of time, see Alford, The More Laws, theMore . . . ? supra note 50, at 10–15.

62. Adam Przeworski and Fernando Limongi, Political Regimes and EconomicGrowth, 7 J. Econ. Perspectives 51, 64 (1993).


63. Dealing with China: The Barbarians at the Gate, Economist, Nov. 27, 1993,at 21 (quoting Senator Kenneth Wherry). Wherry is the Senator who once re-ferred to another part of Asia as “Indigo China.” Marvin E. Stromer, The Makingof a Political Leader: Kenneth S. Wherry and the United States Senate 150 (1969).

64. For an overarching account of how seemingly constant an expression ofAmerican life as McDonald’s adapts to local conditions even as it shapes them, seeGolden Arches East: McDonald’s in East Asia (James L. Watson ed., 1997) (dis-cussing the cultural impact of McDonald’s in Beijing, Hong Kong, Seoul, Taipei,and Tokyo). Would that we had as nuanced a multijurisdictional study of legaltransplantation.

65. See Alan Watson, Legal Transplants: An Approach to Comparative Law (2ded. 1993).

66. Carothers perceptively notes elsewhere the importance of applying lessonslearned about democracy promotion to China:

These lessons [about democracy promotion programs focused on law] are of

particular importance concerning China, where some U.S. policymakers and

commentators have begun pinning hope on the idea that promoting the rule of

law will allow the United States to support positive economic and political

change without taking a confrontational approach on human rights issues. . . .

Rule-of-law promotion should be part of U.S. policy toward China, but it will

not . . . eliminate the hard choices between the ideals and interests that have

plagued America’s foreign policy for more than two centuries.

Carothers, The Rule of Law Revival, supra note 17, at 106. Unfortunately, hiscase studies in Aiding Democracy Abroad are limited to nations that are of rela-tively modest size and international political power. His choice may be under-standable for reasons of feasibility, but it leads him to exclude what may be someof the most important test cases for the propositions he advances.

67. See generally Kathryn Hendley, Trying to Make Law Matter: Legal Reformand Labor Law in the Soviet Union (1996); Steven L. Solnick, Stealing the State:Control and Collapse in Soviet Institutions (1998); Robert Sharlet, Legal Trans-plants and Political Mutations, 7 East Eur. Const. Rev. 59 (1998).

68. See generally Adam Schwarz, A Nation in Waiting: Indonesia in the 1990s(1994).

69. See generally Michael Bratton and Nicolas van de Walle, Democratic Ex-periments in Africa: Regime Transitions in Comparative Perspective (1997);Claude Ake, The Democratisation of Disempowerment in Africa, in The Democ-ratisation of Disempowerment: The Problem of Democracy in the Third World 70(Jochen Hippler ed., 1995).

70. See generally Sajo, supra note 57.71. These developments are discussed in William P. Alford, A Second Great


Wall? China’s Post-Cultural Revolution Project of Legal Construction, 11 CulturalDynamics 193 (1999). The best overall study of contemporary Chinese legal de-velopment in English is Stanley B. Lubman, Bird in a Cage: Legal Reform in Chinaafter Mao (1999). For a fine study of the PRC’s court system, see Donald C.Clarke, Power and Politics in the Chinese Court System: The Enforcement of CivilJudgments, 10 Colum. J. Asian L. 1 (1996).

72. See, e.g., Shiping Zheng, Party vs. State in Post-1949 China: The Institu-tional Dilemma 189 (1997); Harry Harding, The Halting Advance of Pluralism, 9J. Democracy 11, 12 (1998); Minxin Pei, “Creeping Democratization” in China, 6 J.Democracy 65, 68–71 (1995).

73. See, e.g., Abusing Rights According to Law, China Rights Forum, Winter1999–2000, at 4; Elisabeth Rosenthal, Spring Turns to Winter in Beijing, N.Y.Times, Dec. 27, 1998, §4, at 5. Some Chinese citizens have also begun to expressconcern about the Communist Party’s use of legal reform to “maintain and safe-guard its grip on power.” Ding Zilin, Lin Mu, Jiang Qisheng, Jiang Peikun, and WeiXiaotao, Declaration on Civil Rights and Freedom (Sept. 28, 1998)(visited Apr. 21,2000) <http://www.hrichina.org/documents/english/freedom.html> (on file withthe Harvard Law School Library).

74. See Jasper Becker, Money Burns as Party Fiddles, S. China Morning Post(Hong Kong), Aug. 21, 1999, at 15, available in 1999 WL 21937237 (reporting thatChina’s Auditor General found that for the first six months of 1999, more than117 billion yuan [roughly $14 billion] in state funds, which is greater than the en-tire national economic stimulus package for that period, had been misused).

75. See William P. Alford, Tasselled Loafers for Barefoot Lawyers: Transforma-tion and Tension in the World of Chinese Legal Workers, 141 China Q. 22, 32–34(1995); Alford, Of Lawyers Lost and Found, supra note 54, at 19–20. As Joel Hell-man of the European Bank for Reconstruction and Development has observedwith respect to economic reform in the former Soviet Union and Eastern Europe:“[T]he winners can do far more damage to the progress of economic reform thanthe losers. As a result, the success of economic reform depends on creating win-ners and on constraining them.” Joel S. Hellman, Winners Take All: The Politics ofPartial Reform in Postcommunist Transitions, 50 World Pol. 203, 234 (1998). Ofcourse, if legal professionals themselves exemplify this phenomenon, the utility ofthe legal system as a major potential source of constraints on winners in generalmay be impaired.

76. Ways in which the law has been empowering are discussed in William P.Alford, Double-Edged Swords Cut Both Ways: Law and Legitimacy in the People’sRepublic of China, Daedalus, Spring 1993, at 45.

77. For a masterful treatment of the ways in which competing conceptions ofthe rule of law have been deployed in international development, see John K.M.Ohnesorge, The Rule of Law, Economic Development, and the DevelopmentalStates of Northeast Asia, in Law and Development in East and Southeast Asia


(Christoph Antons ed., forthcoming 2000) (on file with the Harvard Law SchoolLibrary).

78. Although he does not focus on developing nations, Richard Pildes exploresthe costs of legalization in Laws and Norms: The Destruction of Social Capitalthrough Law, 144 U. Pa. L. Rev. 2055 (1996).

79. The accentuation of law to the possible detriment of other concerns mighttake many forms. For example, Carol Jones argues that in Hong Kong, bothBritish and Chinese rulers have sought to emphasize what each has described asthe rule of law in lieu of allowing the populace more in the way of political outletstypically found in democratic states. See Carol Jones, Politics Postponed: Law as aSubstitute for Politics in Hong Kong and China, in Law, Capitalism and Power inAsia: The Rule of Law and Legal Institutions 45, 46–48, 53–54, 56–62 (KanishkaJayasuriya ed., 1999). Or, to take a different tack, literacy might need to be fosteredas a precondition to the populace reasonably availing itself of its legal rights. SeeSusmita Dasgupta and David Wheeler, Citizen Complaints as Environmental Indi-cators: Evidence from China 14, 21 tbl.5, 22 tbl.6 (World Bank Policy ResearchWorking Paper No. 1704, 1997).

80. The dilemma of achieving justice while fostering reconciliation is treatedeloquently in Martha Minow, Between Vengeance and Forgiveness: Facing Historyafter Genocide and Mass Violence (1998). Ruti Teitel has also written with insightabout the place of law in building a new social order in Ruti Teitel, Transitional Ju-risprudence: The Role of Law in Political Transformation, 106 Yale L.J. 2009(1997).

81. As one could imagine, too candid a discussion of the presumed politicalimport of democracy assistance might lead some governments to decline U.S.support, while too muted a treatment would raise questions both of duplicity andof a failure properly to inform the target public in what, after all, are programs de-signed to promote democracy.

82. See Trubek and Galanter, supra note 27, at 1090–92.83. Pound took up his consultancy in China at age 77. I am working on a

study, with Dr. Xingzhong Yu of the Chinese University of Hong Kong, of Pound’sexperience in China, its impact on him, and the ways in which his ideas have beenused by Chinese scholars both in the Republic of China and the PRC.

84. See, e.g., Marc Lacey and William C. Rempel, Chinese Army Funds Went toDemocrats, Donor Says, L.A. Times, May 16, 1998, at A1; William C. Rempel andAlan C. Miller, Chung Details Alleged Chinese Funding Scheme, L.A. Times, May7, 1999, at A1.

85. See Trubek and Galanter, supra note 27, at 1063–64.86. Fareed Zakaria, Beyond Money, N.Y. Times, Nov. 28, 1999, at 14. If by

“killer theorem,” Mr. Zakaria means something akin to the idea of “illiberaldemocracy” that he has promoted, the absence of such in Development as Free-dom may simply be further evidence of Professor Sen’s fine judgment. To take


issue with the notion that there is such a thing as “illiberal democracy” is not toargue that governance in Asia need inevitably converge on an American or Euro-pean model, but rather to underscore the conceptual and political danger ofdefining terms such as democracy in so attenuated a manner as virtually to stripthem of any reference value.

87. In fairness, the Trubek and Galanter piece may have been as much a dra-matic plea for attention to an overlooked dilemma as a sounding of total retreat.The fate of subsequent law and development studies is discussed insightfully inCarol V. Rose, The “New” Law and Development Movement in the Post–Cold WarEra: A Vietnam Case Study, 32 L. & Soc’y Rev. 93 (1998).

88. See, e.g., deLisle, supra note 15, at 267.89. See, e.g., id. at 179 (discussing the phenomenon of the myopic American

legal academic/consultant). For an example of sensitivity to the challenges thatlegal transplantation poses, see Edward L. Rubin, Administrative Law and theComplexity of Culture, in Legislative Drafting for Market Reform: Some Lessonsfrom China, supra note 45, at 88. Practical difficulties of legal transplantation areaddressed in Linn A. Hammergren, Code Reform and Law Revision (1998) (un-published manuscript), available at <http://www.worldlearning.org/pidt/dfp/arti-cle5.html> (on file with the Harvard Law School Library).

90. An analogous point might be made with respect to the legal profession (or,for that matter, legal education itself). American-style lawyering has been aprominent element of U.S. legal assistance projects, often put forward with rela-tively little attention to just how rooted it may be in a particular set of institutions,values, and practices and how its more adversarial mode of advocacy and broaddefinition of a lawyer’s function may fare in a different setting. Without minimiz-ing American lawyers’ and legal academics’ self-interest in replicating that withwhich they are familiar, this phenomenon also reflects the tendency of some of themost influential American theoretical writing about the sociology of legal profes-sion to assume the backdrop of U.S. context, even when purporting to make state-ments knowing no geographic boundaries. For a further discussion, see Alford, OfLawyers Lost and Found, supra note 54, at 5–15.

91. Area studies done well, presumably, facilitate just this type of understand-ing by enabling one to move beyond glib generalities to an informed sense of howsuch processes have worked in the societies under study. An additional, perhapsless obvious advantage of an area studies background is the lesson of humility thatthe study of language may impart. The memory of studying a foreign languageunder the tutelage of a native speaker ought to be a constant reminder for thosewho would transmit their institutions abroad that learning runs in both directions.

92. See generally Universities and Empire: Money and Politics in the SocialSciences during the Cold War (Christopher Simpson ed., 1998).

93. Sun Yat-sen, San Min Chu I: The Three Principles of the People 111 (FrankW. Price trans., China Publ’g 1927) (1925).


94. See supra notes 12, 27.95. For a brief sketch of the phases through which rule of law programs have

proceeded, see Harry Blair and Gary Hansen, Weighing in on the Scales of Justice:Strategic Approaches for Donor-supported Rule of Law Programs (U.S. Agencyfor Int’l Dev. Program & Operations Assessment Report No. 7, 1994), available at<http://www.info.usaid.gov/democracy/techpubs/weighingin.pdf> (on file withthe Harvard Law School Library).

96. Professor Ackerman’s recent essay in Harvard Law Review, arguing thatour thinking about constitutional arrangements should not be bound by theAmerican trinitarian separation of powers, illustrates well the virtues of engagingsystems other than one’s own. Interestingly, one of the “modest proposals” he ad-vances—that of an “integrity branch” that might be something of a watchdog overother branches of government, Ackerman, supra note 20, at 694–96—has a nearlycentury-old antecedent in the Republic of China. In his Three People’s Principles(San Min Chu I), Sun Yat-sen proposed more than 75 years ago that China shouldadopt a five yuan (branch) system of government comprised of three borrowedfrom the West (the executive, legislative, and judicial) and two from China’s past(an examination branch and a control or integrity branch). See Sun Yat-sen, supranote 93, at 145–49. The proposed control yuan drew on the imperial Chinese in-stitution known as the Censorate (tu ch’a yuan), a collection of well-trained, rela-tively independent officials outside of normal bureaucratic lines whose responsi-bility was to point out abuses and corruption within officialdom, even to the ex-tent (at least in theory) of remonstrating with the emperor himself. Questionsremain even to this day in Taiwan as to the effectiveness of the control yuan, its in-teraction with the political and judicial branches, and its larger implications fordemocratic government. See Control Yuan Needs More Teeth—Departing Presi-dent Wang, China News (Taipei), Feb. 2, 1999, available in LEXIS, News Library,CHNWS File.


3

Puzzling Observations in Chinese LawWhen Is a Riddle Just a Mistake?

Donald C. Clarke

I. The Problem of Perplexity

For a Western-trained lawyer encountering Chinese law for the first time,a reaction other than perplexity is a bad sign—it means that one has notreally grasped the depth of the problem of understanding. The evidencethat something very different is going on seems clear enough: contractlaws are full of mandatory provisions, while tax laws seem to be largely ne-gotiable; judges until recently wore military-style uniforms in court;1 andthe constitution does not in fact constitute.2

There are several ways of dealing with the perplexing features of theChinese legal system. One way can be called the “naive ignorance” ap-proach. Under this approach, one simply ignores puzzling phenomenaand writes about the Chinese legal system3 as if it were just like an ideal(not an actual) Western legal system. Thus, an analysis of criminal law orcriminal procedure law in China consists of reading and discussingChina’s relevant legal texts without any consideration for what actuallyhappens. One describes the civil procedure law of China using this ap-proach as one might describe the civil procedure law of, say, France, al-though a basic-level court judge in China, even if attempting to adminis-ter that law in good faith, may well be a retired military officer with nopost-secondary education at all, let alone a degree in law.

Because few people would admit to using such an approach, let alonedefend it, it is not necessary to spend a great deal of time pointing out itsobvious inadequacies. Fortunately, this type of approach is relatively rare(although by no means unknown) in the English-language (and largely

93

American) sources. The reason for this is that there is a kind of legal-real-ist tradition in English-language studies of Chinese law fostered, ironicallyenough, by the Chinese government and its secretive attitude to the Chi-nese legal system. In the 1960s, when the first generation of Americanscholars of Chinese law looked for information on the Chinese legal sys-tem, the best way to get it turned out to be through interviewing Chineseémigrés in Hong Kong.4 Had the Chinese government made available col-lections of appellate opinions, quite possibly these scholars would havebeen happy to forgo the exhausting task of conducting interviews in favorof doing what they had been trained in law school to do: analyze texts. Butthe result would have been much worse in terms of understanding howthe Chinese legal system actually operates.5 Instead, the founders of Chi-nese legal studies in the United States were forced to avail themselves ofany source they could get their hands on that seemed remotely relevant,and to piece together what they could of a picture of the Chinese legal sys-tem that very obviously was not like their own.

But precisely because a sophisticated approach with at least a modestdegree of sensitivity to the new and the unexpected will discover in theChinese legal system a wealth of such phenomena, it must address theissue of how to interpret them. Indeed, it must address the issue of how tointerpret them before they are discovered, because that methodological de-cision will tend to determine what counts as new and unexpected andtherefore what gets discovered. It will also determine which of these dis-coveries get explained as a normal feature of the system, and which get ex-plained as an error or aberration.

In short, the understanding of the Chinese legal system that resultsfrom any study will depend crucially on the selection of a model or para-digm or ideal type—by which terms I intend here essentially the samething—with which to define what counts as an observation and againstwhich to measure and assess the observations, either descriptively or nor-matively. This is not to say that the selection of a model will make the dif-ference between understanding and not understanding. It will, however,make a difference between understanding in one way and understandingin another way. Whether one of those ways is better than another dependson how still more methodological issues are settled: the purpose that is tobe served by the understanding that is sought, and whether that purpose isitself a valuable one.

What I hope will not be controversial is that we cannot avoid the use ofmodels that necessarily abstract from reality. As Louis Wolcher has written,

94 d o n a l d c. c l a r k e

It is impossible for a scholar to express any conclusions, causal or otherwise,

about reality except by means of abstractions which are, by their very na-

ture, distortions of that which simply “is.” . . . That which is does not dictate

the properties of the discourse by which its intelligibility to humans is ren-

dered, and thus knowledge claims can be properly viewed as simply forms

of discourse.6

Thus, there can be no question of models that are right or wrong in someabsolute sense, just as there can be no choice as to whether or not to usemodels. The real question lies in how to use them.

My purpose in this essay is to explore the ways in which the Chineselegal system can be understood through the use, conscious or not, of dif-ferent models, and in particular the phenomenon of what appear to bemistakes and aberrations when we apply those models. I will model, if youwill, a particular way of modeling the Chinese legal system, and show howthis way of modeling produces observations that can be explained only aserrors or aberrations. I will then show how other ways of modeling wouldexplain these observations as normal and expected phenomena. Finally, Iwill discuss the challenge these multiple ways of modeling pose to the an-alyst. A model that explains an observation as normal is not necessarilysuperior to a model that can only explain it as an error or an aberration:mistakes and aberrations do happen. Yet surely it is also intellectually sat-isfying to have a model of a set of phenomena that provides a plausible ac-count of almost all of them.7

II. Modeling the Modeler

In this section of the essay I propose to model a particular way of model-ing the Chinese legal system. I say “model” instead of “describe” becausealthough the model I propose to construct is rooted in methodologies Isee employed in the literature on Chinese law, those methodologies arethemselves a kind of reality that can be only imperfectly characterized byan abstraction. Thus, although I believe that it is useful to construct andthen in part to criticize this model, I do not claim that any particularanalysis or scholar adopts the modeled methodology in toto.

Let me call this model the “Ideal Western Legal Order” (hereinafter the“IWLO”) model or approach. Under this essentially teleological approach,the Chinese legal system is identified and measured in terms of an ideal

Puzzling Observations in Chinese Law 95

end state that is assigned to it by the analyst. Just as we understand thechanges in an acorn in terms of the oak tree into which we assume it willeventually grow, so the IWLO approach assigns an end state to the Chi-nese legal system and evaluates it both statically (how far away is it?) anddynamically (in which direction is it going?) with reference to this endstate. Not only does the assigned end state determine the evaluation of theobserved phenomena of the Chinese legal system, but it also defines whichphenomena shall even count as data about the Chinese legal system andare thus worthy of analysis. To return to the biological example, it is be-cause we are interested in the oak tree that we decide to study the acornand to ignore, say, the peanut. Thus, the IWLO approach not only deter-mines the standards by which we evaluate the system; it also determines toa large degree the results of the apparently objective process of simply de-scribing the system.

The particular end state used in the IWLO approach is, as the label sug-gests, the analyst’s view of what Western legal orders would look like iftheir perceived imperfections were eliminated.8 This end state constitutesthe paradigm, in the Kuhnian sense,9 that governs the entire enterprise ofanalyzing the Chinese legal system.

As argued earlier, there is nothing wrong per se with using a paradigmor model in the course of studying the Chinese legal system. A paradigm isindispensable—it tells us what questions to ask, what observations tomake, and how to interpret them. Facts do not simply present themselvesto us neutrally; there is an infinity of facts and potential observations inthe universe, and we need some structure, some set of categories, to helpus make sense of them.10

I believe that the IWLO approach modeled above is a useful way of un-derstanding some of the conclusions reached in many contemporaryanalyses of Chinese law. Again, I do not assert that this approach is invari-ably “wrong” or useless—I have used it myself,11 probably more often thanI realize. But any use of models, while unavoidable, has limitations, andthe use of this particular model has its own particular limitations that de-serve some examination.12

The theoretical shortcomings can perhaps best be understood by look-ing at the naive and sophisticated variants of the IWLO approach. At itsmost naive, the IWLO approach assumes that the reality of, say, Americanlegal institutions is equivalent to the ideal. The analyst—perhaps a mem-ber of Congress or a presidential candidate—wishes to state an evaluationof whether China is a better or worse society than the United States, and


does so by comparing China’s actual institutions to America’s ideal institu-tions. Thus, for example, China’s criminal procedure as actually practiced(and as reported by various human rights organizations) is compared withan ideal picture of the American criminal process (and not the picture asreported by various human rights organizations.13) Needless to say, Chinais found wanting, and the conclusion naturally follows that China is bad.As the conclusion was embedded in the premises of the inquiry, however,it does not advance our understanding of China very much.

There is, however, a more sophisticated variation of this approach. Thesophisticated version is used not with the conscious purpose of condemn-ing the current Chinese government or 3,000 years of Chinese civilization,but rather with the aim of simply understanding China’s legal institutions.(Of course, this aim is not in fact simple, because any goal of understand-ing must be driven by a particular purpose.) But even the sophisticatedapproach is flawed by a number of components that are taken for grantedand not specifically asserted or supported by argument.14

The first assumption is that China has legal institutions. In other words,the IWLO approach assumes that we can talk meaningfully about Chineselaw and legal institutions; that China has a set of institutions that canmeaningfully be grouped together under a single rubric, and that it ismeaningful (i.e., it clarifies more than it obscures) to label this rubric“legal”—the same word we use to describe a set of institutions in our ownsociety. Thus, even to embark on the study of something called “Chineselegal institutions” involves an a priori assumption that China has a set ofinstitutions largely similar to the institutions we call “legal” in our society.If the institutions were not largely congruent—if, for example, we werediscussing churches or the movie industry—we would not call the institu-tions “legal” in the first place.15 More specifically, the very act of namingcertain institutions involves drawing conclusions about them before theinvestigation has even begun. If we call a certain institution a “court,” thenwe are claiming that this word conveys to the listener a more complete andaccurate picture of the institution in question than some other word. Wecould equally well call the institution a “team,” or an “office,” or a “bureau”;the decision not to use those words represents an implicit assertion aboutthe nature of the institution in question. The problem is that this assertionprecedes, rather than follows, inquiry into the nature of the institution.

The second assumption is that these institutions are “developing.” Aca-demic articles adopting this approach are typically entitled “China’s De-veloping Law of Contract” or something similar. By “developing” is meant


moving from a more primitive and inferior stage to a more sophisticatedand better stage along a trajectory of linear progress toward a well-under-stood end. In other words, the sophisticated IWLO approach understandsa particular institution now by seeing it as a nascent version of an institu-tion in the analyst’s vision of an ideal Western legal order. We identify itsimperfections in this way and we predict its future changes (which we call“development” and not simply “change”).

I believe that bringing this assumption of development into the open isuseful in understanding the many articles on the Chinese legal system thatpoint out what it lacks. But how does one decide what the Chinese legalsystem lacks? Since the phenomenon by definition is not there, one cannotfind it by observation. We can decide what an institution lacks only by de-ciding what it should have, and we can do that only by deciding how tocharacterize the essential nature of the institution. If we see an oak treewithout bark, we would characterize it as “lacking” bark. We would not socharacterize a concrete (or even a wooden) telephone pole, although it isequally barkless. To return to the Chinese legal system, it is often said thatChinese judges lack judicial independence. The perception of this lackstems from an interpretation of the institution of Chinese courts andjudges that sees them as embryonic courts and judges in ideal Westernlegal order. If we interpreted the institution of Chinese courts and judgesin another light—for example, if we saw them as developing into profes-sional basketball teams—we would discern a completely different set ofshortcomings, such as height and athletic ability. The fact that the set ofChinese officials known as shenpanyuan (literally, “adjudication officers”)generally lack the attributes of professional basketball players is as real afact about them as the fact that they lack independence. Similarly, it is afact that, for example, we could identify some other group of governmentofficials—say, traffic policemen—and point out that they lack indepen-dence in the performance of their functions. But it is the vision of an idealWestern legal order that tells us that although the lack of independence ofpolicemen doesn’t matter, somewhere in the system there should be offi-cials who have independence in the performance of their functions. Wehave then happened upon shenpanyuan as the most likely candidates. Butwhen we look at the matter this way, it is clear that any observation wemake is going to tell us more about our own concerns—that is, about ourvision of what constitutes an ideal legal order—than it will tell us aboutChina. There’s no a priori way of knowing that the fact that shenpanyuan


lack independence is at all significant in China. Perhaps it is, but surely thepoint must be specifically argued—and criteria of significance supplied—and not simply taken for granted.

The main problem with the IWLO approach, then, is that it leaves un-stated and unjustified its most crucial component: the ideal against whichthe Chinese legal system is identified and measured. I do not claim thatmeasuring the Chinese legal system against that ideal is never justified; ininternational human rights debates, for example, it is meaningful to in-quire into the extent to which Chinese legal institutions measure up to in-ternational standards, and those standards could fairly be characterized asone version of an ideal Western legal order. The results of this inquiry canbe used for information, to prescribe legal reforms, or for condemnation.But they do not come close to telling us everything that might (dependingon our purposes) be significant and interesting about Chinese legal insti-tutions. Oak wood may be harder than pine wood, but that does not meanit is the purpose of the oak tree to produce hard wood, or that the oak treeis developing in the direction of progressively harder wood. The hardnessof its wood is a particular piece of information that is useful in a limitedcontext—for example, if you are making furniture—but it does not tell useverything, or even the most important thing to someone with a differentpurpose in mind, about the oak tree.

Because the ideal against which the system is measured is left unstatedand unjustified, it is difficult to evaluate the conclusions of an analysisusing the IWLO approach. If the goal is to understand the degree to whichthe Chinese legal system fails to provide the rights set forth in the Interna-tional Covenant on Civil and Political Rights (ICCPR) recently signed(but not yet ratified) by China, then of course it is legitimate and useful touse the ICCPR as the ideal against which to measure China’s legal sys-tem.16 But if the goal is to understand what China’s legal institutionsmight look like ten years from now, then one cannot simply assume thatthe direction of change is toward the standards of the ICCPR.

In short, while the IWLO approach can be useful for the limited pur-pose of assessing whether the Chinese legal system meets some explicitlystated and justified standard, it is by no means the only way of under-standing the internal structure and interrelationships of Chinese legal in-stitutions. The sophisticated practitioner of the IWLO approach, unlikethe practitioner of the “naive ignorance” approach, can see clearly enoughthat some phenomena don’t fit the ideal; but the sophisticated practitioner


will nevertheless view these phenomena as aberrations, errors, and imper-fections that are not central to understanding the system as a whole. Inthis way, crucial and important phenomena may be overlooked.

III. Observations of Error and the Use of Alternative Models

We cannot avoid the use of models because we need some overarchingtheory to decide what questions to ask and what observations to deem im-portant. But our inquiry is necessarily beset by a dilemma: we cannot evenidentify a fact without a model that tells us that it is a fact worth identify-ing, and yet how can we hope to construct an adequate model prior to theobservation of any facts?

The first step, if we have not consciously adopted a particular model, isto recognize that we are invariably working with an existing model, andthat this model is what tells us that certain observations are puzzling. Thesecond step is to recognize that the model we are starting may well be un-suited to our aim of understanding Chinese law, since we naturally startwith a familiar model, and there is every reason to believe that China, withits different history and political institutions, will require an unfamiliarone. The third step is therefore to take the phenomena that our existingmodel views as errors and aberrations, and to hypothesize that these phe-nomena may be normal components of the Chinese legal system whenviewed using a different model. If we can construct a model of the Chi-nese legal system that can account for observations we formerly viewed asevidence of aberration and error, then I think we can be confident that wehave gained an understanding we did not have before. Among otherthings, we will be constructing a more internally consistent model of theChinese legal system that does not require the use of imported and possi-bly misleading categories.

Finally, however, we must be prepared for observations that remain in-consistent with whatever model we end up with. These inconsistent obser-vations can be explained in one of several ways. First, they may indeed beevidence of error or aberration in the system. No model can perfectly de-scribe reality; aberration is bound to exist. But if the inconsistent observa-tions are evidence only of minor aberration, then it is not necessary to at-tach a great deal of importance to them.

Second, the observations themselves may be erroneous. An astronomerwho records a position for Mars that is far different from where it is sup-


posed to be is more likely to recheck his calculations than to assume thatmodern astrophysics must be completely rethought.

Third, the observations may indeed be evidence that the model incom-pletely describes the legal system in ways that are important to us.17 This isa signal that we need either to revise the model or to abandon it for onethat better serves our purposes.

IV. Alternative Models of the Chinese Legal System: Examples

A. Introduction

So far I have only discussed the deficiencies of the IWLO approach in theabstract. I now propose to demonstrate in a concrete way the value ofusing observations explained as error in that approach to apply alternativemodels to the analysis of the Chinese legal system.

One of the best thought-out alternative models of the Chinese legalsystem is that presented by Thomas Stephens in his book Order and Disci-pline in China.18 Stephens’ central claim is that we should understand thetraditional Chinese legal system—although he would not want to use theterm “legal” to characterize the “system” in question—through what hecalls the “disciplinary model.” The disciplinary model is essentially themodel of order that prevails in the army, the family, and the nurseryschool. His claim is that the entire vocabulary of Western jurisprudence—courts, judges, rights, legislatures, etc.—is inapposite to traditional China,and that to use such terms to describe what we see is to miss the point en-tirely.

Stephens did not fully work out his model, and in any case was notwriting about modern China, but I think it is worth thinking about howthe disciplinary model might fruitfully be applied. If it is useful to applythe disciplinary model, that means that if we look at Chinese society as agiant army, or schoolroom, or nursery, certain phenomena will makemuch more sense than if we see it as a society governed, even imperfectly,by the ideal of the IWLO model.

Of course, it is quite possible that a model designed to fit traditionalChina’s society will not work well when applied to modern China. Chinadoes change, and Chinese law in particular is now in a state of profoundinstability, at least in some respects. There is no single “right” model forthe Chinese legal system because at this moment there is a struggle taking


place in China itself over what the dominant model should be both to de-scribe the Chinese legal system and to reform it. Thus, different modelsmay be appropriate for different fields of law, or even for the same field atdifferent times; we can understand certain observations in one way usingone model, and in another way using another model, and in this way at-tain a fuller understanding of why the observations look the way they do.

B. Contract Law

The first specific example I propose to look at is contract law. If one looksat Chinese contract legislation in the 1980s and 1990s from the standpointof the IWLO approach, it appears badly drafted. In particular, it is full ofstatements saying that such-and-such “should in principle” or “shouldgenerally” be done. The question that instantly occurs to a Western-trained lawyer is: what happens if the particular provision does not appearin the contract? What are the consequences? Is the contract invalid? Canone sue on the contract if the other party does not perform?

These questions are all generated by the IWLO approach. In this modelof a legal order, parties make contracts and sue on them, and the dispute isresolved by courts with reference to the words in the contract, applicablelaw, and possibly commercial custom. Thus, we wonder how a court issupposed to interpret “in principle” or “generally.” The terms seem toovague, since they contemplate some exceptions to the rule, but not toomany, and provide no guidance as to when an exception is justified. In therule of law paradigm, these are mistakes; this is bad drafting. The properresponse is therefore to give legislative drafting seminars to Chinese offi-cials—to train them to move from a more primitive stage of drafting to amore sophisticated stage.

But suppose we apply the disciplinary model to the same phenomenon.In a disciplinary system, nobody supposes that the state should be a neu-tral and disinterested enabler of transactions between individuals. On thecontrary, from the point of view of this model, if individuals are allowedto do whatever they please they will only end up harming themselves andthe community. Therefore, the state (which asserts the authority to speakfor the community) closely supervises the actions of individuals. In par-ticular, it supervises the actions of individuals that implicate the legal sys-tem, because the legal system consists of state institutions and one doesn’twant uncontrolled individuals determining the acts of state institutions.


Within a disciplinary system, therefore, it is natural to set up a contractapproval system, in which all contracts of importance (i.e., contracts inthe course of economic production) need approval by some state organ.The “laws” of contract are not aimed at individual contracting parties;they do not speak to such parties. Instead, they are essentially instructionsfrom the central state to contract approval organs that tell them how to goabout their task of approving contracts. Using this model, it is not at allsurprising to see such terms as “in general” or “in principle.” The impor-tant issue is not one of rights or statutory interpretation; the importantissue is whether a kind of statistical regularity is achieved. The draftersrecognize that not all contracts need the particular provisions in question.They want most contracts to have these provisions, but do not want to tietheir own hands. Contract approval authorities are therefore instructed, ineffect, to achieve a conformity rate that is relatively high. It is the contractapproval authorities that “obey” and “apply” this rule, not contract partiesor courts; the issue of whether the rule has been properly applied is onebetween the approval authorities and their superiors and is not the busi-ness of anyone else. The use of terms such as “in principle” or “in general”can thus be understood not as an oversight or an example of bad drafting,but instead as a perfectly understandable and even necessary part of thesystem.

C. The Constitution

Let us now turn to a set of perplexing observations one could make aboutthe Chinese constitution (xianfa). Most obviously, it does not describe orin a realistic sense prescribe how the government of China operates.19 It isperhaps the least important document, in terms of binding force, in theentire Chinese legal system—the most important and binding standardsare formulated at formally lower levels such as the State Council and localgovernments.20 Little of importance is done or not done simply because itis written in the constitution. The words of the constitution are essentiallyepiphenomenal: at most, they reflect the alignment of political forces else-where in the system, but do not importantly affect them. Despite this lackof legal significance, however, the government keeps changing the consti-tution, and these changes are viewed as important in the sense that peopledebate the language and support or oppose making the changes. How dowe explain all this?


Under the IWLO approach, one would reason as follows: A constitutionis a document (or a set of unwritten but well- understood rules) that setsforth the operating rules of the government. In China, the xianfa is thatdocument. China is developing a constitutional system. Eventually it willhave a system where government operates according to constitutionalnorms as interpreted authoritatively by courts. These could be ordinarycourts (as in the United States) or special constitutional courts as in someEuropean countries. Where the government does not operate according tothe rules set forth in the constitution, that is a constitutional violation andthe sign of something wrong in the body politic. Thus, the fact that theChinese government frequently does not operate in accordance with thenorms of its own constitution is a failing; it is a sign of serious politicalsickness; it is quite possibly even morally wrong.

But while it may be satisfying rhetorically, and useful politically, to be-moan the fact that the Chinese government keeps violating its own consti-tution, I am not sure that it really advances our understanding of the ac-tual role played by this document, the xianfa, in the Chinese polity. To ad-vance our understanding, I propose that we start by forgetting that theChinese government translates xianfa as “constitution.” I contend that ifwe do not start with any presuppositions as to what this document is, weare unlikely to conclude that it is a constitution in a meaningful sense—inpart because it just doesn’t do the things that documents labeled constitu-tions are supposed to do.21 Thus, I suggest we understand the documentby interpreting the so-called “violations” as normal phenomena, not as er-rors or aberrations.

Let us start by considering what a constitution means in the IWLOmodel, in particular as understood in the common law tradition. In theIWLO model, a constitution can be viewed as a kind of contract. It repre-sents a political deal, an accommodation among competing politicalgroups on how the government of the state should be carried forward.

In this view of a constitution,22 violations are significant. They repre-sent breaches of the deal, attempts to change the agreed order of things.There needs to be a system for determining when violations have occurredand deciding what to do about them, and that system needs to have itsown legitimacy.

Given this understanding of a constitution, does it make sense to sup-pose that China would have one? I believe not. The current regime inChina is not the result of a political deal; it was the result of a one-sidedmilitary victory. Thus, I would claim that China’s written xianfa is less of a


constitution than the famous unwritten constitution of the United King-dom, which is very much the product of a series of political deals and un-derstandings. If we accept that the xianfa is nothing like a constitution asthe rule of law paradigm understands it, then the “violations” are not puz-zling or perplexing; they are simply observations without significance. Butthis answer will not be satisfactory to most people. Therefore, let us lookin detail at why violations of the norms apparently set forth in the Chinesedocument labeled xianfa are not significant observations once we stop in-sisting that the xianfa must be a constitution. I propose an understandingof the xianfa that accommodates a view of “violations” as normal or eveninsignificant, instead of a view that sees them as evidence of error andaberration. The test of the understanding I propose, of course, is simplywhether it seems more persuasive than any other.

The first part of my account of the xianfa is to note that it does havesignificance; it simply does not have much legal significance. The “rights”it provides are more akin to the right to the pursuit of happiness pro-claimed in the American Declaration of Independence. The xianfa mightthus more appropriately be viewed (and translated) as a kind of NationalDeclaration. Each xianfa to date has marked the ascendancy of a particu-lar leading group and policy orientation.23 Each has contained a clear in-dication of the policy directions the government at the time intended totake. Thus, they have been far from insignificant. But they have not beenbinding law and no Chinese government has ever treated them as such.24

On the contrary, changes to the xianfa are often quite explicitly intendedto be the final stamp of legitimation on already existing and approvedpractices. Land leasing, for example, was carried out experimentally (andwith central government approval) at the local level before the prohibitionon it was removed from the xianfa.25

The notion of the constitution as a National Declaration of the victori-ous political line explains why China keeps running into the problem ofsocial practice outstripping the constitution (a problem that is typicallysolved, as with land leasing, by simply ignoring the constitution). The rea-son goes to why the Chinese government has produced a document that itlabels a “constitution” in the first place: a constitution, in the modernworld, is a legitimator of government. Virtually every self-respecting statemust have one, unless it happens to be a very old, established state like theUnited Kingdom.

In the United States, where constitutionalism borders on religion, aform of government and its policy decisions are legitimated through the


observance of proper procedures.26 In China, however, the governmentclaims legitimacy through correct policies themselves, not through theway they were produced. The government’s slogan is, “Only the Commu-nist Party can save China.” It is not, “Only following constitutional proce-dures can save China.” The Communist Party does not say that it deservesto be in power because it was elected or because some other procedurewas satisfied.27 It asserts its right to power through its promotion of cor-rect policies that will make China wealthy and strong.

If correct policies legitimize a government, and the constitution is asign of legitimacy, then the constitution should embody the correct poli-cies, not merely a set of procedures. To understand the significance (orlack of significance) of constitutional “violations,” let us return to the issueof land leasing in Shenzhen. This leasing was carried out while the policyagainst the leasing of land was still a legitimizing policy. What happenedin Shenzhen was allowed as an experiment of strictly local scope. It didnot call into question the larger ban, and thus was not politically disrup-tive. Once the government was satisfied that leasing land would have nodelegitimizing consequences, the constitution could be changed to allow itofficially. But since the constitutional rule against land leasing was neverintended to be an actual binding rule of law, we will not understand whathappened in Shenzhen and later in Beijing if we picture land leasing inShenzhen as a constitutional “violation” similar in consequences and sig-nificance to constitutional violations in, say, the United States.

One can use similar reasoning to analyze the fact that the governmentdoes not in fact provide all the rights set forth in the constitution. Underthe IWLO approach, a right set forth in the constitution that cannot actu-ally be realized is worthless. It might as well not be there. For the govern-ment not to provide such rights is a failure and an error.

But suppose we stop insisting that the xianfa is actually a constitution?Suppose we see it as a kind of National Declaration similar to the Ameri-can Declaration of Independence—the fact that an American court willnot recognize a legal right to “the pursuit of happiness” does not meanthat the Declaration of Independence is an insignificant or worthless doc-ument. It can be viewed as a declaration of broad policy objectives, oreven as a political campaign platform with promises that nobody reallyexpects will be kept.28

Looking at the Chinese constitution through different lenses is particu-larly interesting because in fact no single paradigm is adequate. China isnot static, and there is considerable contestation over which model should


apply. As someone attempting merely to describe and not to prescribe, Ican of course conclude after study that the document labeled xianfa issimply a general statement of policy and should not be taken seriously as alegal document. But plenty of Chinese inside and outside the communityof legal specialists are not content with a model that denies legal signifi-cance to this document. They want it to have legal significance and areworking to ensure that it does.29

Ever since the fall of the Qing dynasty and the end of imperial China in1911, Chinese governments have viewed a Western-style constitution pro-claiming popular sovereignty as a necessary hallmark of legitimacy, some-thing that would never have occurred to a Chinese government beforecontact with the West. In proclaiming the xianfa to be that constitution, agovernment in effect legitimizes the treatment of the xianfa as a Western-style constitution. Although the government is not in fact bound by thexianfa, it cannot admit it. This changes completely the rhetoric of argu-mentation and justification. A claim by an American citizen that the gov-ernment had not protected the right to pursue happiness set forth in theDeclaration of Independence would be dismissed by an American court;the Declaration of Independence neither is nor is supposed to be a sourceof law binding on the U.S. government. A claim by a Chinese citizen thatthe 1989 declaration of martial law in Beijing was invalid because notmade according to the procedures outlined in the xianfa would similarlyget nowhere, but the grounds of argument are subtly different because thexianfa is, by the government’s own admission, supposed to bind it. Thegovernment is obliged to respond that the procedures of the xianfa werefollowed.

The practical importance of a change in rhetorical style should not beoverestimated. There is no neutral judge to impose sanctions on the sidethat loses the argument. But if the government must always claim to be fol-lowing the procedures of the xianfa, this claim is much easier to make if itactually does follow those procedures. There is thus a constant pressure,imposed by the government’s own decision to proclaim the xianfa a “con-stitution,” to act according to its provisions. The revisions leading to the1982 xianfa, in fact, show evidence of this pressure. Although the govern-ment had never in practice allowed strikes, the right to strike was put inboth the 1975 and the 1978 constitutions as something appropriate to aworkers’ state. By 1982, the government had not changed its mind aboutthe right to strike, but it had changed its mind about how far the xianfashould reflect reality: the provision was (along with some others) removed.


This contestation over the right model can be found in the recent de-bate over the idea of “benign violations” (liangxing weixian) of the consti-tution. According to this school of thought, given the persistent and in-evitable tensions between the rules of the constitution and the greatchanges taking place in China, certain constitutional violations should becountenanced where certain conditions are present: it promotes the devel-opment of the productive forces, or it is in the basic interests of the stateand the people.30

Needless to say, there is much to criticize in this theory. First, the pro-ponents are not clear as to who should decide whether these factors arepresent. Second, it is hard to see why the logical end of the theory is notsimply the reduction of the entire constitution to a sentence stating twobroad policy goals (promote the development of productive forces andserve the basic interests of the state and the people), with everything elsehandled by statute. Third, it vitiates the idea of the constitution as a legaldocument and replaces legal criteria with what are essentially political andeconomic criteria. There is no place for special legal expertise in judgingwhat will promote the development of productive forces or serve the basicinterests of the state and the people.

But the criticisms of this theory made in China are interesting for otherreasons. One critic, Xi Zhong, acknowledges that the theory of benign vio-lations attacks a genuine problem: the tension between constitutionalrules and social development. In such a case, he states, either social devel-opment must be blocked or constitutional rules must be ignored. He goeson to say that in China, it is the latter choice that is always made, and hecalls this an “abnormal phenomenon” (bu zhengchang de xianxiang).31

Let us think for a moment about this claim. The historical reality is thatChinese governments, including the government of the People’s Republic,have always ignored inconvenient provisions of the constitution.32 Fromwhere comes the extraordinary claim that this is abnormal? If a Westernscholar made the same claim, he or she would be accused in some quartersof the worst kind of ethnocentrism.33 What we see here, however, is an in-ternal criticism from someone who works within the Chinese legal system.Xi and others are not outside observers of the Chinese legal system con-tent simply to describe it; the point, as Marx said, is to change it. Interest-ingly, however, they are not claiming a desire to change the fundamentalprinciples of the Chinese legal system. They are saying instead that theprinciples they support already exist within the system. Their claim is thatthe xianfa is a constitution, and that a constitution by nature has certain


characteristics; they insist therefore that the xianfa and its associated insti-tutions should exhibit these characteristics.

D. Administrative Law

Looked at using the IWLO approach, China’s administrative law is indeedperplexing. There just doesn’t seem to be very much of it. There are feweffective laws or other institutions governing the competence of variousbodies to make regulations or governing the exercise of discretion by ad-ministrative bodies.

Take the question of legislative competence. It has been frequently ob-served that different governmental bodies in China issue a bewildering va-riety of documents containing rules that are apparently intended to be fol-lowed.34 The purported subject of these rules naturally wants to knowwhether obedience is compulsory and what to do in case rules issued bydifferent bodies conflict. If we are applying the IWLO model, we will nat-urally start asking questions about legislative competence. Did the govern-mental body in question have lawful authority to issue the regulation inquestion? Using the familiar tools of analysis such as delegation, ultravires, and legislative intent, it is very difficult to come up with an answer,because these simply are not concepts that the Chinese legal system dealswith very much.

Even if we could come up with some kind of answer, the answer wouldnot be significant within the Chinese legal system, because the issue ofwhether or not you need to obey will not be settled by a court applyingthese tools of analysis. Thus, the IWLO approach directs our inquiry to aset of concepts that aren’t important and guarantees an irrelevant result.To be sure, we can conclude that the Chinese legal system lacks a devel-oped administrative law, but this doesn’t advance our knowledge of whatit has, and implies that somehow it ought to have a developed administra-tive law.

The IWLO approach insists that we ask questions to which there is nogood answer, and there is no good answer because they simply are not im-portant questions within China. Thus, the answers seem inadequate andconfusing, and we therefore label the Chinese legal system inadequate andconfusing. With a different model, however, we might be inspired to ask adifferent set of questions to which clear answers were possible. Supposewe say that the relevant question is really which governmental body hasthe actual power to enforce the piece of rule-making in question? This is a


different question that calls for a different type of analysis. Yet one canimagine that it would be quite possible to come up with a realistic answerthat had the additional virtue of being useful to someone attempting toaccomplish something in the Chinese legal system. By abandoning theIWLO approach, we might be able to replace confusing and useless an-swers with straightforward and useful ones.

Another example can be found in the notion of control over adminis-trative discretion. It is often remarked that China “lacks” such controls.This is because one can observe that the National People’s Congress[NPC] (for example) promulgates an item of legislation; the legislationstates that a permit is required to do such-and-such; and it also says that aparticular bureaucracy shall decide within X number of days whether ornot to issue the permit. But the law typically lays down no criteria for thebureaucracy to use in deciding whether or not to issue the permit—cer-tainly no criteria that might be used as the basis for a lawsuit challengingthe bureaucracy’s refusal to issue the permit. There is no case such as J.W.Hampton, Jr. & Co. v. United States35 analyzing the question of adminis-trative discretion, even if deciding in the bureaucracy’s favor. Therefore,we conclude that such controls over discretion are “lacking” because wethink of them as something that should be there. In the IWLO model, theChinese bureaucracy is like the bureaucracy in a Western European coun-try, and the NPC is like a parliament or the United States Congress. TheIWLO model sees Chinese administrative law even though it doesn’t reallyexist in the familiar sense; undeterred, the model thinks of it as simply notexisting yet, but as embryonic and in need of nourishment and encourage-ment. In other words, the basic framework is all there; China simply needsto supplement what is currently lacking.

Again, I would like to see how we can understand China’s lack of a de-veloped system of administrative law by abandoning the IWLO approachand instead assuming that what we observe is part of the normal and reg-ular functioning of a system. We can start by taking account of the funda-mental political differences between China and a country like the UnitedStates with a developed system of administrative law. United States federaladministrative law, for example, would not exist without the presence oftwo different types of institutions: Congress and federal agencies. Many ofthe questions of administrative law that are interesting for us have to dowith the relationship between those two institutions. In particular, we liketo ask:


• How much power and discretion can Congress delegate?• What standards and procedures should guide the exercise of admin-

istrative discretion?• How much deference should courts give to the exercise of adminis-

trative discretion?

These legal questions are all important for political reasons: Congress ispolitically powerful, wants to get things accomplished, and must rely onexecutive agencies to do it in many cases. Since the whole reason for con-signing a task to an administrative agency is that Congress cannot directlyimplement laws itself, and in many cases does not have the time or exper-tise to engage in detailed rule-making, administrative agencies must begiven a certain amount of discretion. But that discretion may be exercisedonly in the service of a properly granted mandate from Congress, andtherefore some types of controls are viewed as necessary.36

In the United States, there is a further requirement that all exercises ofgovernment power at the federal level have a specific legal basis; theremust be a basis in the Constitution or an authorizing statute, and thestatute must be constitutional. Furthermore, it is a court that will decidewhether the action is in accordance with a statute or the Constitution.

China, of course, functions politically in a completely different manner.Why would one expect to find in China a system of administrative lawthat poses and answers the questions important in American administra-tive law, when the political basis for those questions in absent?

American administrative law is concerned with delegations of powerfrom a legislature: a superior delegates to an inferior. But in China, the“legislature” (the National People’s Congress) is not in fact superior to the“executive” or the “administration” (the State Council and its organs). Po-litical power does not come from the NPC. On the contrary, the NPCowes its existence to the “executive,” which created it and arguably couldabolish it tomorrow without changing anything essential about China.

The real locus of central political power in China—the real govern-ment, as it were—lies, of course, in the leadership of the CommunistParty, which exercises power largely through the State Council. This gov-ernment has inherent authority to make rules about anything. For a num-ber of reasons, it now chooses to make certain rules through the vehicle ofthe National People’s Congress. But the issue of which rules are madethrough the NPC, which through its Standing Committee, and which


through the State Council is not a legal question; it is largely a political de-cision.

Thus, it is not a sign of immaturity or inadequacy of the system thatChina has no effective rules governing lawmaking competence or admin-istrative discretion. In countries where Parliament is supreme, such as theUnited Kingdom, one does not have rules governing the “exercise of dis-cretion” by Parliament in its activities. The whole idea simply does notmake sense. For the same reason, administrative law as understood usingthe IWLO model looks chaotic and undeveloped because the model weare using does not fit the political facts of life in China. If we want to lookat rules governing the exercise of discretion, we should look at how supe-rior organs (for example, the State Council) control their inferior organs(for example, ministries). This, however, is essentially a question of bu-reaucratic discipline in China and not part of public law.

As we saw with the constitution, however, the story does not simply endwith the discovery of a better-fitting model. There are a number of actorsin China that are not satisfied with a descriptively more accurate model.They want the model contained in the IWLO approach, and they want tochange the way China operates until that model is in fact descriptivelyquite accurate. They believe that administrative agencies should be subjectto NPC legislation, and that China would be a better place were this so.Nevertheless, it is crucial to recognize that this is not a description ofChina; it is an argument about where China should go that is not nowbacked by political reality.

V. Conclusion: Evaluation versus Description

While evaluating the Chinese legal system and describing it share manycommon elements and are in some sense inseparable,37 they can be use-fully distinguished. Frankly, the former is the easier task. You pick somevalues and see whether they are realized in the Chinese legal system. Thiscan be a legitimate exercise, and can yield information about the Chineselegal system that is useful for some purposes. Thus, an evaluation is alwaysto some extent a description. The problem with an evaluation as a de-scription is that it is an incomplete and possibly misleading description. Ifall we do is evaluate the Chinese legal system, especially from the stand-point of the IWLO model, then all we can say about differences we find isa series of statements about elements that the ideal contains and that the


Chinese legal system lacks, or elements that the ideal rejects that the Chi-nese legal system has. All we can say about the system’s future is to expressthe hope that it will become more like the ideal Western legal order. Thiskind of analysis is in principle unable, except by sheer luck, to grasp im-portant internal relationships within the Chinese legal system, because it isuninterested in them.

Simply describing the Chinese legal system in a way that makes sense ofthe observations is much, much harder than evaluating it, because there isno ready-made model—one’s own value system—to use. One must imag-ine several models and try them all out to see what kind of understandingthey yield. Instead of understanding the Chinese legal system by asking,for example, how far it maximizes the value of individual autonomy, oneseeks to understand it by finding out what values it does maximize. Obvi-ously, one can then pass judgment on that value orientation, but one hasto find it first.

What makes description doubly difficult is that describing a legal sys-tem is not like describing an astronomical system. The observations of thePtolemaic astronomers were quite accurate; the problem lay in the inter-pretation they gave to those observations. When Copernicus reinterpretedthe observations, the new interpretation—putting the sun at the center ofthe solar system—proved more convincing than the old, but it did notchange the observations.

A legal system, though, is different, because we are interpreting the actsof human beings, who have their own purposes and goals, and who canchange their behavior. As I noted when discussing the constitution, manyChinese analysts in a position to affect the shape of Chinese legal institu-tions are normatively dissatisfied with the model I proposed for under-standing it. Whether or not they agree that that is how things are, they cer-tainly do not believe that that is how things should be. They want a differ-ent model to apply, and that model, for many, is that of the constitution inthe ideal Western legal order. They want violations of the constitution tobe viewed by actors in the system as errors and aberrations that must becorrected. They are not only participating in a debate over how to inter-pret the observations—a debate in which description and evaluation areusually mixed together—but they are also creating the observations.

Indeed, even Western observers are, in an important sense, creating theobservations. Like it or not, the Chinese state exists in a world dominatedby Western models of international and domestic legal order. Indeed,when the Chinese government argues that it is inappropriate to apply


Western standards of legal order to the Chinese legal system, or strenu-ously asserts that the Chinese legal system in fact meets these standards—sometimes in the same document38—it is appealing in both cases to West-ern models of justification. Although I believe that legal and other reformsin China must in the end be internally driven and will not occur throughthe imposition of, say, trade sanctions by other countries, this is by nomeans to say that Western models will play no important role in the direc-tion those reforms take. And it is Western observers who are continuallycreating and recreating those models, and measuring China against them.Moreover, there is increasing interaction between Western observers andChinese participants.

Consequently, even a model that appears at one particular moment tobe the most useful in terms of achieving the purpose for which it was in-tended is unstable and incomplete if it is unsatisfactory—whether formoral or practical reasons—to powerful observers and especially to par-ticipants. They will be looking for ways to subvert it from within. Thus, ifwe note incompatible observations, these may not simply be errors; theymay be signs of an alternative model that co-exists with the dominantmodel. Consequently, the best attainable understanding of the Chineselegal system will not be simply the best-fitting model plus incompatibleobservations explained as errors. We must be prepared to apply multiplemodels and to be alert to the need always to move nimbly among them.

Appendix

A Digression on Ethnocentrism and the Canadian Giraffe

This essay is an attempt to come to grips with some of the problems ofunderstanding institutions in a society different in many ways from theone with which I am familiar. A necessary corollary of two societies’ beingdifferent is that each society will have institutions that the other does not.Yet anyone from a Western society who asserts that non-Western Society Xdoes not possess Institution Y is, if Institution Y is generally present inWestern societies and considered to be a good thing, vulnerable to thecharge of ethnocentrism in one form or another. The general form thischarge takes is that the person criticized has adopted a definition of a con-cept that is too narrow; were we to adopt a broader definition and moreinclusive definition—which the critic asserts we should do—we would see


that Society X really does have Institution Y, albeit in a somewhat differentform. The critic asserts that we should accept that different form as a localmanifestation of Institution Y, just as what we call Institution Y in West-ern society is really just a local manifestation of a broader concept. Forconvenience, I will refer to criticism of this type as “You’re Too Narrow”(YTN) criticism.

There is nothing in principle wrong with this kind of criticism; it may attimes be justified. At other times, however, the criticism is marred by twotypical flaws. First, the YTN critic often interprets an assertion that SocietyX does not have Institution Y as an assertion that Society X is bad, andseeks to defend Society X. He does so, however, not by refuting the propo-sition (which may or may not have been specifically asserted) that failureto have Institution Y is bad, but by insisting that Institution Y really is pre-sent if only we were imaginative enough to see it. In other words, the criticmisunderstands what makes ethnocentrism a moral and methodologicalerror. It would be ethnocentric for a Kenyan, for example, to assert thatonly countries to which giraffes were native were good countries; it wouldnot be ethnocentric to assert that Canada had no giraffes. One cannotconvincingly refute the claims of our ethnocentric Kenyan by insistingthat caribou are simply Canada’s version of a giraffe and that the Kenyanshould not use such a culture-bound definition of what constitutes a“real” giraffe.

The anthropologist Paul Bohannan points out an example of this typeof YTN approach in the work of fellow anthropologist Max Gluckman,who stated in his book The Judicial Process among the Barotse of NorthernRhodesia that “it is unfortunately still necessary to demonstrate thatAfricans . . . use processes of inductive and deductive reasoning which arein essence similar to those of the West, even if the premises be different.”39

Comments Bohannan: “He wants, in short, not merely to study a cultureand society, but also to prove that Africans are as good as anybody else.”40

The project of demonstrating Society X to be as good as Society Z, par-ticularly in the face of ignorant and genuinely ethnocentric views in Soci-ety Z about Society X, can be a worthwhile one—but it should not be con-fused with the project of determining whether Society X has institutionsthat can meaningfully be called by the same name41 as certain institutionsin Society Z. Unfortunately, the confusion is often increased by the factthat the YTN critic may simply assume that everyone understands the de-bate to be over whether Society X is good or not, and thus does not makeclear that this is the proposition she is attempting to refute. The refutation


is couched in terms of the seemingly objective question of whether the in-stitutions in question do or do not exist in Society X.

The second typical flaw of the YTN approach is that while criticizingthe narrow definition used by the target of criticism, the critic fails to jus-tify or defend her own definition or even to propose and defend a stan-dard by which the merit of a definition should be judged. The point of anydefinition, however, is that it must be useful for the purpose it is to serve; itsusefulness cannot be measured in the absence of an understanding of thatpurpose. Take the issue of how to define “the rule of law.” If the question“Does Country X have the rule of law?” is posed by legislators of CountryZ and is really the question “Is Country X a rogue state that should be sub-ject to sanctions by Country Z?” (perhaps a legitimate question in theright circumstances) in disguise, clearly a narrow definition that includesvirtually every specific feature of Country Z’s legal system is absurd. If,however, the question “Does Country X have the rule of law?” is beingposed by a judge in a court of Country Z with two parties in front of her,and is really the question “Does Country X have a legal system such thatthe courts of Country Z should automatically enforce its courts’ judg-ments without further inquiry?” (also a legitimate question in the rightcircumstances) in disguise, it seems equally clear that a more narrow and“ethnocentric” definition is entirely appropriate.

n o t e s

I wish to express my thanks to Paul Gewirtz of Yale Law School, Koguchi Hikota ofWaseda University Faculty of Law, and Randall Peerenboom of the University ofCalifornia at Los Angeles School of Law, whose invitations to speak at their re-spective institutions were instrumental in prompting and developing the ideas inthis essay. I also wish to thank Michael Dowdle, Daniel Foote, Ellen Hertz, RandallPeerenboom, and Louis Wolcher for their generously detailed comments on anearlier draft, and I especially wish to thank Prof. Wolcher for his methodologicalinsights. Needless to say, none of these bears any responsibility for the result.

Given the forum for the publication of this essay, I wish also to take this oppor-tunity to thank Jerome Cohen for awakening my interest in Chinese law when Ifound his book on the Chinese criminal process in the library of the Canadian Em-bassy in Beijing over 20 years ago, and for being a constant source of encourage-ment, advice, and very concrete assistance on many occasions since then. It is a mea-sure of Jerry’s impact on the field, and a tribute to it, that there are so many of uswho are probably saying more or less the same thing. This essay is dedicated to him.


1. See “Faguan kaiting chuan faguan pao” (Judges Wear Judicial Robes inCourt), Zhongguo Fayuan Bao (China Court News), March 8, 2000, p. 1. This arti-cle includes pictures of models posing in the new robes.

2. See, e.g., William C. Jones, “The Constitution of the People’s Republic ofChina,” Washington University Law Quarterly, vol. 63, no. 4 (1985), p. 710 (“Theconstitution seems to bear no relation to the actual government of China”).

3. Both Stanley Lubman and Perry Keller have questioned whether China’slegal institutions and norms exhibit the kind of unity that would justify callingthem a “system.” See Stanley Lubman, Bird in a Cage: Legal Reform in China afterMao (Stanford: Stanford University Press, 1999), p. 3; Perry Keller, “Sources ofOrder in Chinese Law,” American Journal of Comparative Law, vol. 42, no. 4(1994), p. 711. This is an interesting issue, but not one I intend to address here. By“Chinese legal system” I mean merely the set of Chinese institutions and normscommonly understood as “legal” by those who study them.

4. See Jerome A. Cohen, “Interviewing Chinese Refugees: Indispensable Aid toLegal Research on China,” in Jerome A. Cohen, ed., Contemporary Chinese Law:Research Problems and Perspectives (Cambridge, Mass.: Harvard University Press,1970), pp. 84–117; Victor H. Li, “The Use of Survey Interviewing in Research onCommunist Chinese Law,” in id., pp. 118–138.

5. A recent example of the instinctive preference of common law scholars forcase reports as the raw material of legal study can be found in the publication byButterworths Asia of the China Law Reports, a translation of excerpts from Zhong-guo Shenpan Anli Yaolan (Anthology of Adjudicated Cases in China) (Beijing:China People’s Public Security University Press, 1992). In its design and very title,the China Law Reports appears to be a reporter of judicial opinions of the kind fa-miliar to Western lawyers. Yet judicial opinions are not, in fact, important sourcesof law in China, and the decisions contained in the China Law Reports are not inany case those that were originally issued by the judges that made them. The textswere heavily edited by the law professors and senior judges that put out the Chi-nese collection. See Peter Feng, “Review,” in Hong Kong Law Journal, vol. 26, pt. 2(1996), pp. 268–273. For all these reasons, the texts are therefore almost whollyunsuited for the analytic treatment they are likely to receive by readers unaware ofthese problems.

6. Louis E. Wolcher, “The Many Meanings of ‘Wherefore’ in Legal History,”Washington Law Review, vol. 68, no. 3 (July 1993), p. 579.

7. If the model had an explanation for every phenomenon under study, its ex-planatory power would be suspect; many people would feel that an explanationthat explained everything was too elastic to explain anything.

8. Thus, the use of the IWLO approach would by no means be limited to con-servative defenders of the status quo in Western countries. It could be used to an-alyze China by defenders as well as opponents of the death penalty, the exclusion-ary rule, or abortion rights. I do not include among its potential users those,


whether or not citizens of Western countries, whose vision of an ideal legal systemis radically different from that currently prevailing in those countries.

9. See Thomas S. Kuhn, The Structure of Scientific Revolutions (3d ed.)(Chicago: University of Chicago Press, 1996).

10. For a discussion of the types of questions and research agenda generatedby a paradigm of any kind in the course of comparative legal study, see Mark VanHoecke and Mark Warrington, “Legal Cultures, Legal Paradigms and Legal Doc-trine: Towards a New Model for Comparative Law,” International and ComparativeLaw Quarterly, vol. 47, pt. 3 (July 1998), pp. 514–515.

11. See, e.g., Donald C. Clarke, Wrongs and Rights: A Human Rights Analysis ofChina’s Revised Criminal Code (New York: Lawyers Committee for Human Rights,December 1998).

12. It is probably worth repeating at this point that I am modeling the use of amodel. In other words, I believe that while a description of a particular analysis ofChinese law as “using the IWLO model” could never be exhaustively accurate anymore than a description of the actual economic system of the United States as“capitalist” could, measuring features of the analysis against an ideal IWLO analy-sis can be helpful in understanding its limitations.

13. See, for example, the often (unintentionally) hilarious debate betweenWilliam Schultz, the executive director of Amnesty International in the UnitedStates, and Sheriff Joseph Arpaio, head of “the toughest prison system in the coun-try,” on the Today show of Oct. 12, 1998 (NBC News Transcripts, Oct. 12, 1998).

14. This is not, of course, necessarily a fatal error—we could not communicateat all if we could not take some things for granted and had to prove the usefulnessof each word we used.

15. Thus, for example, to Max Gluckman’s statement that “the Lozi judicialprocess corresponds with, more than it differs from, the judicial process in West-ern society,” fellow anthropologist Paul Bohannan responded, “Of course it does,or Gluckman could not have defined it as judicial.” See Paul Bohannan, “Ethnog-raphy and Comparison in Legal Anthropology,” in Laura Nader (ed.), Law in Cul-ture and Society (Chicago: Aldine Publishing Co., 1969), p. 411.

16. See, for example, Donald C. Clarke, Wrongs and Rights: A Human RightsAnalysis of China’s Revised Criminal Code (New York: Lawyers Committee forHuman Rights, 1998), the central purpose of which is to measure China’s currentcriminal law against international human rights standards.

17. It goes without saying, of course, that the model will be incomplete. Theissue is whether the incompleteness matters.

18. Thomas B. Stephens, Order and Discipline in China (Seattle: University ofWashington Press, 1992).

19. See Jones, supra note 2.20. For a more sustained treatment of this general point, see Donald C. Clarke,


“State Council Notice Nullifies Statutory Rights of Creditors,” East Asian ExecutiveReports, vol. 19, no. 4 (April 15, 1997), pp. 9–15.

21. On the issue of who gets to define what a constitution is “supposed to do,”see note 22, infra, and the Appendix to this essay.

22. Obviously this view is not the only possible view. It does have the virtue ofmaking a meaningful comparative constitutionalism possible, because it allowsthe comparison of rules that perform similar functions, instead of requiring thecomparison of any document claimed by a government in its English-languagepublications to be a “constitution.” The latter approach appears to be the one im-plicitly taken by various “Constitutions of the World” collections.

23. See Jones, supra note 2, pp. 711–713.24. See the discussion at note 28 infra.25. As early as 1986, official sources explicitly praised the “leasing” of rural

land by local farmers to more productive outsiders. See Xinhua General OverseasNews Service, “Farmers Create New Form in Rural Reform,” November 6, 1986(Item No. 1106037). In 1987, the city of Shenzhen auctioned off the “right to use”plots of land for fifty years. See Xinhua News Agency, “Shenzhen to Reform LandManagement System,” July 7, 1987, in British Broadcasting Corporation, Summaryof World Broadcasts, Part 3: The Far East, July 11, 1987, p. BII/1. And of course,Sino-foreign joint ventures had been operating on what was for all intents andpurposes leased land for years by that time. The constitutional amendment per-mitting leasing was not passed until April 1988.

26. An interesting example of this can be seen in the recent controversy overwhether or not President Clinton should have been impeached. The President’ssupporters argued, and his foes felt compelled to deny, that the impeachmentdrive was simply an effort to overturn the results of the last election.

27. To be exact, the Communist Party does in fact occasionally make some-thing like a claim of legitimacy through popular choice: the claim that it deservesto be in power because the Chinese people chose it in the civil war against theKuomintang. This claim is not made frequently, however, and is not relied on anymore by the Communist Party as a major source of its legitimacy. The war ended,after all, half a century ago.

28. One might analogize a Chinese citizen attempting to force Chinese courtsto recognize constitutional rules to a U.S. citizen attempting to force U.S. courts torecognize rules contained in non-self-executing treaties (such as the World TradeOrganization agreements) to which the United States is a party. These rules haveno place in the American legal system until Congress makes a specific enactment.Similarly, the right of free speech in the Chinese constitution means nothing as alegal right, even formally, until enacted into statute. It is generally acknowledgedthat constitutional provisions cannot form the basis of a court judgment, andcourts are not supposed to cite it. For a recent article arguing that this principle


neither is nor should be a valid rule within the Chinese legal system, see WangZhenmin, “Woguo xianfa ke fou jinru susong” (Can Our Country’s ConstitutionBe Brought into Litigation?), Fa Shang Yanjiu (Studies in Law and Commerce),No. 5, 1999, pp. 28–36.

29. An interesting parallel can be seen in the constitutional history of post-warJapan. The constitution there can also be seen as the result of a one-sided militaryvictory, although not, it must be added, on the part of the largely conservative po-litical elite into whose hands eventually fell the responsibility for enforcing (or ig-noring) its provisions. Nevertheless, the fact that it was taken seriously by some asa constitution essentially within the IWLO model led in fact to its functioningmore as such.

30. See, for example, Hao Tiechuan, “Lun liangxing weixian” (On Benign Vio-lations of the Constitution), Faxue Yanjiu (Legal Studies), No. 4, 1996, p. 90.

31. Xi Zhong, “Dui ‘liangxing weixian’ de fansi” (Some Thoughts about “Be-nign Violations of the Constitution”), Faxue Pinglun (Legal Studies Review), no. 6,1998, pp. 26–33.

32. See generally Andrew J. Nathan, “Political Rights in the Chinese Constitu-tional Tradition,” in Chinese Democracy (London: I.B. Tauris & Co., 1986), pp.107–132.

33. See Janet E. Ainsworth, “Interpreting Sacred Texts: Preliminary Reflectionson Constitutional Discourse in China,” Hastings Law Journal, vol. 43, no. 2 (Jan.1992), pp. 278–280. While Professor Ainsworth criticizes scholars such as JeromeCohen for their ethnocentric conceptions of what a constitution is and how itshould be interpreted, it is not clear why Prof. Ainsworth’s conception of a consti-tution—“a specific type of written text—. . . a political text which is both founda-tional and generative of subsequent juridical discourse” (p. 281)—is not open tothe same criticism. A culture-free conception of a constitution is as chimerical as aculture-free conception of a haiku. I discuss this point further in the Appendix tothis essay, “A Digression on Ethnocentrism and the Canadian Giraffe.”

34. The most penetrating analyses of this issue of which I am aware are thoseof Perry Keller in his “Legislation in the People’s Republic of China,” University ofBritish Columbia Law Review, vol. 23, no. 3 (1989), pp. 653–688, and “Sources ofOrder in Chinese Law,” American Journal of Comparative Law, vol. 42, no. 4(1994), pp. 711–759.

35. 276 U.S. 394 (1928). Writing for the Court in Hampton, Chief Justice Taftstated, in language that has since become famous, that Congress was required todo no more than “lay down by legislative act an intelligible principle to which theperson or body authorized to [exercise the delegated authority] is directed to con-form”—but it did have to do that much. Id., at 409.

36. At times, of course, Congress may quite intentionally grant wide discretionto administrative agencies as a way of avoiding difficult decisions; there are somedecisions, however, that it is not constitutionally allowed to duck.


37. This is especially so because we are dealing with a legal system, which is allabout norms, and not, say, the solar system.

38. See, for example, Information Office of the State Council of the People’sRepublic of China, 50 Years of Progress in China’s Human Rights (February 17,2000), which states both that “China cannot copy the mode of human rights de-velopment of the developed Western countries, nor can it copy the methods ofother developing countries. . . . China can only start from its own reality and ex-plore a road with its own characteristics” and that “China guarantees, according tolaw, that citizens enjoy extensive basic freedoms and rights . . . [such as] freedomof speech, of the press, of assembly, of association, of procession, of demonstra-tion and of religious belief.”

39. Max Gluckman, The Judicial Process among the Barotse of Northern Rhode-sia (Manchester: Manchester University Press, 1955), p. 271.

40. Bohannan, supra note 15, p. 409.41. I do not want to be understood as insisting that a word can be used cor-

rectly in only one way (my way). A speaker can meaningfully call two institutionsby the same name if their similarities, measured by a standard that is meaningfulto the speaker, outweigh their differences. To call things by the same name, itseems to me, necessarily involves making an implicit claim of this kind. See note15, supra, and accompanying text.


4

Grave MattersWarring States Law and Philosophy

Susan Roosevelt Weld

I. Introduction

We live in an age when archaeologists daily uncover new evidence aboutChina’s axial age, the half millennium preceding 221 b.c. during which thebasic elements of the Chinese cultural order took shape. When the excava-tor’s shovel uncovers early versions of the root texts of the classical canon,as in the modest Chu grave found in 1993 in Hubei Province near thehamlet of Guodian,1 even non-specialists sit up and take notice, for suchdiscoveries tend to undermine the broad-brush skepticism of the yigu, or“doubting antiquity”2 movement of this century, and restore luster to theChinese tradition.

More important than rediscovered classics, however, for those who arecurious about the society that produced them, are the legal and religiousdocuments found in the same cemeteries: in particular, those found inthe rich grave of Chu’s top judicial official, Shao Tuo, a few kilometerssouth of Guodian on the hill called Baoshan. These texts smell more oflife. Like cases, contracts and court records today, they are filled withhuman detail: the names, jobs and residences of plaintiffs and defen-dants,3 the exact dates on or before which named people were to accom-plish assigned tasks,4 the exact amount of debt out-standing,5 the preciseboundaries of disputed lands.6 Divination records found in the samegraves have a similar legal flavor to them: they list the “client’s” urgentquestions about his failing health and the diviners’ [falsely] reassuring re-sponses; they describe the delectable sacrifices to be offered at such timeas the client recovers; they name specific spirits and the nature and size of

122

the sacrifices being offered to them in hopes of restoring the client’shealth; in some cases, they say, in a congratulatory way, that the client’sofferings have succeeded in appeasing those spirits.7 Documents like thesetell us how the philosophical ideas and ideals in the classics played out inpractice.

Sinologists and classical scholars are now trying to fit the newly foundwritings into their understanding of the inherited tradition, using them totinker with current paradigms. This paper will instead try to respect theintegrity of the archaeological evidence found in the environs of the lateWarring States Chu, capital of Ying, by looking at the excavated texts forthemselves, rather than for the light they shed on received texts. Taken as agroup, the philosophical writings from Guodian and the contemporarylegal and religious documents found at Baoshan and elsewhere in the Chucapital region reveal something of the theory and practice of law and gov-ernment in the kingdom of Chu at the turn of the fourth century b.c.

II. Context Is All

Why are excavated texts, often fragmentary and almost always very hard todecipher, so valuable, in comparison to the well-known and well-anno-tated received versions of the classics? The answer is easy: excavated textscome with a known human context, from the possessions, profession andpersonality of the person buried with them, in the case of tomb texts, tothe culture of the city and state in which the site was located. Receivedtexts, copied out and passed down over more than 2,000 years, come to usstripped of the particularity of their time and place and potentially dis-torted by the priorities of later times.

For the first time, we now know quite a lot about the legal and religiouscontext of ruist, or Confucian philosophy in the fourth century b.c.Among other things, it is no longer possible to say, as some have in thepast, “law played little role in Early Chinese culture, as we know from thefollowing verses in the Analects”; or “the Chinese state preferred to rule byVirtue, Yielding and Ritual, rather than law and punishment”; althoughwe might be able to say “some Confucian thinkers from the fifth centuryforward offered in their writings and teachings a powerful critique of thecoercive methods used to achieve social control in the some of the statesof their day.” It is no longer possible to say “law in pre-modern China wasalmost exclusively penal in nature”; although we might be able to say “the

Warring States Law and Philosophy 123

most controversial aspect of law for philosophers in Early China was theuse of mutilating punishments.”

Now we have the difficult task of trying to see the different discoursesof law, religion and philosophy in context with each other. We must askquestions like: Do the ideas about human nature that we see presented inthe Guodian essays seem to inform the way that people were actuallytreated under the law? Were the philosophers’ ideals of political order re-flected in the institutions of power? Does the law use any of the key termswielded by the philosophers—benevolence and righteousness (ren and yi),gentleman and mean man (junzi and xiaoren), heart, nature and disposi-tion (xin, xing and qing), loyalty and good faith (zhong and xin), virtueand the Way (de and dao)—and if so, how? How does religion affect thelegal discourse? Can we glimpse identifiable attitudes in the philosophicaltexts toward free will, divination, the after-life and the role of gods andspirits in human affairs? If so, do these attitudes seem to affect how peoplewere treated in the courts?

III. The State of Chu in the Mid to Late Warring States Period(350–287 b.c.)

Since 1949, literally thousands of Chu graves have been found in Henan,Hubei, Hunan and Anhui Provinces in central China. The grandeur andrichness of these funerary remains have sparked a blossoming of Chustudies in these provinces and elsewhere in China, producing manyshelves of publications on all aspects of Chu history and culture.

The late Warring States capital of Chu was Ying, located near Jianglingat a site called Jinancheng. At this site, to this day, the vast rammed earthwalls, still 7.5 meters high in some places and measuring 4,400 m East toWest and 3,500 m North to South, can be easily picked out; the ditches ormoats that once ran along the wall have in some cases been diverted intofish ponds. Inside the walls are more than eighty architectural platforms.This huge urban area is ringed with the cemeteries of its former inhabi-tants, rich and poor, and it is among the small percentage of these gravesthat have been excavated to date that there are several that have yieldedbamboo documents. In spite of the richness of the ruins at Ying anddozens of other Chu cities, however, the classical picture of Chu, domi-nant until the last few decades of discoveries, is one of a backwater inhab-

124 s u s a n r o o s e v e l t w e l d

ited by “southern barbarians,” the Man. This dismissive view is exempli-fied in the Mencius, in the philosopher’s criticism of a follower of theagrarian “leveler,” Xu Xing:

I have heard of the Chinese converting barbarians to their ways, but not

of their being converted to barbarian ways. . . . Now you turn your back

on the way of your teacher in order to follow the southern barbarian

with the twittering tongue, who condemns the way of the former kings.

. . .8

In fact, as we can see from the maps produced by historical geographerslike Shi Quan and his students Chen Wei and Xu Shaohua, Chu was by farthe largest state in the Warring States period, stretching from the edges ofSichuan in the West to the salt-making areas within a hundred kilometersof the sea in the East. The histories tell us that by the last quarter of thefourth century b.c., Chu had for some time been feeding off the smallZhou states in the southern half of the North China Plain and now heldstrong positions all along the southern borders of the three Jin successorstates. To the evidence of the histories, we can now add that of the hun-dreds of place names found in Shao Tuo’s legal texts: these show that Chugovernmental influence also stretched far to the south of the YangtzeRiver, possibly as far as the neighborhood of modern Changsha, in HunanProvince. The geographical extent and cultural diversity of the Chu king-dom must have posed significant problems of communications and con-trol.

These factors may have inhibited Chu’s development of the extremelycentralizing and unitary institutions proposed in contemporary writingson statecraft: particularly the texts called “legalist” by later scholars. Legal-ist-style centralization was the hall-mark of the Qin state, Chu’s most im-portant rival in contemporary power struggles and progenitor of the dy-nasty that ultimately succeeded in imposing unity on the Chinese world in221 b.c. Rather than Chu’s unwieldy collection of conquered territories,including portions of five major river basins and many clusters of cultur-ally distinct populations, Qin’s heartland centered on the rich and rela-tively easily- controlled Wei River valley. Unlike Qin’s jealous monopolyon coercive power, as portrayed in the early histories and to some extentconfirmed by Qin documents found in graves since the 1970s, Chu insti-tutions, as glimpsed in these documents, were characterized by relativelydecentralized ways of consolidating power.


IV. Texts in Chu Graves

In April 1986, a team of salvage archaeologists working on a new railwayline investigated a small group of Chu tombs on a hill called Baoshan inthe village of Wangchangcun, Hubei Province. Baoshan is located 16 kilo-meters north of the remains of the ancient Chu capital of Ying. Grave #2at this site, one of the largest and best-preserved among the thousands ofChu graves found so far, yielded 278 well-preserved bamboo strips, con-taining altogether 12,472 graphs, as well as a very rich collection of othergrave furnishings in bronze, bamboo, wood, pottery, iron, silver and gold.

We are fortunate in that the books of bamboo strips laid carefully inthis grave tell us quite a lot about its occupant, Shao Tuo, a high official ofthe Chu central government—an official whose responsibilities seem tohave centered around law. Apart from documents concerning judicial ad-ministration, Shao Tuo’s grave held records of personal divinations per-formed during the last three years of his life: divinations that inquiredabout his future in court politics, as well as the prognosis for his worsen-ing health. An initial question concerns the significance of the odd factthat Shao Tuo’s heirs and subordinates sent these texts with him into thegrave. The records of prayers and divinations might have been thought toprove his good will to the spirits governing the underworld. However, thecases and reports included seem in medias res: documents in a murder in-vestigation that had not yet come to judgment, records of inter-govern-mental loans made and not yet repaid, notations of pending orders sentout to the provinces to do judicial work like making arrests, taking evi-dence under oath and checking on the accuracy of population registers.How could the state function without these important documents? Themost likely answer is suggested by what we know of the official culture ofthe later empires, under which each official would maintain his own per-sonal record of matters dealt with in his office. He might use this personalarchive later in his career to respond to reviews of his performance, andperhaps rebut allegations of malfeasance; the existence of the personalarchive need not imply that the office did not maintain a complete set ofrecords for continued use.9 In the case of Chu graves, made like woodenhouses for the afterlife, with separate rooms connected by doors and win-dows and crowded with weapons, food, housewares and personal belong-ings, the texts may have been included to help keep the spirit of the de-ceased occupied and out of mischief.10


Many of the documents are dated, most often using a dating methodthat seems to have been peculiarly popular in Chu (perhaps especially incourt and government documents): years were named after major eventsin the state’s recent history. Scholars studying these strips11 have identifiedone of the events referred to in these dates as a battle recorded in the Shijias taking place in 323 b.c.:

In the sixth year of King Huai, Chu dispatched the zhuguo (“Pillar of the

State”) Zhao Yang with an army to attack Wei. He succeeded in defeating

Wei at Xiangling, taking eight towns.12

Since the sixth year of King Huai of Chu was 323 b.c., if one assumesthat the year-name was chosen and used in official records in the follow-ing year (an assumption which seems arbitrary but which may be the onlychoice), the documents bearing this date can, with moderate credibility, bedated to 322 b.c. Once a date identifiable in received historical sources hasbeen fixed in this way, the other year-names on the strips from Shao Tuo’sgrave fall into a natural chronological order, depending on the internallogic of the documents they appear on (see Table 1).13

1

The year following that in which the Grand Marshal Zhao Yang defeated the Jinarmy at Xiangling. (322 b.c.)(This is also the date inscribed on the “Ejunqijie” tally, a laissez-passer for thetransport of goods by land and water within Chu territories, found in Shoucun,Anhui Province.)

The year following that in which Chen Yu, the ambassador from Qi, offered rit-ual congratulations to the King. (321 b.c.)

The year following that in which [the Chu noble] Luyang Gong led the Chuarmy to repair the wall of the capital of Zheng, after the Chu army’s attack.(320 b.c.)

The year following that in which Jian Hu, ambassador of, paid an incidentalvisit to Chu. (319 b.c.)

The year following that in which Sheng Gong Bian, ambassador of Song, paid aformal visit to Chu. (318 b.c.)

The year following that in which Xu Ying, ambassador of Eastern Zhou, pre-sented ceremonial meats at the Chu capital, Zai Ying. (317 b.c.)

The year following that in which the Grand Marshal Zhuo Hua came to therescue of Fu. (316 b.c.)


This final year-name appears on strip #267, which continues: “In thesixth month, on the day dinghai, the zuoyin was buried.” From this weknow that Shao Tuo died and was buried in 316 b.c.14 Like reign-names inlater imperial history, and modern slogans like the “Massachusetts Mira-cle,” these year-names probably served to bolster the state’s legitimacy byreflecting a rosy picture of triumphant military expeditions, like the oneto Xiangling, or prestigious diplomatic visits by the envoys of other states(perhaps as important to the Chu king at the time as the visit of Clintonwas to Jiang Zemin in 1998). As in the modern case, the reality did not al-ways live up to the slogan. In his history of Chu, Zhang Zhengming notesthat Chu had achieved a peak of power under King Wei, in 333 b.c.: itsterritory was then at its maximum extent, including most of the centraland lower valley of the Yangtze River, as well as the rich Huai River basin.15

At that moment, in size and richness of resources, Chu dwarfed the otherstates sharing the Zhou inheritance. By the time King Wei’s son, KingHuai, scored the win against Wei in 323 b.c., a decade later, the kingdomwas already in a decline that would end in 287 b.c. with Qin’s annexationof the Chu capital at Ying and the entire western half of the kingdom, in-cluding the vast cemeteries containing these two graves. In the grave re-port on Baoshan, the archaeologists were careful also to apply other, lessprecise, but perhaps less speculative dating methods based on local ar-chaeological seriation of ceramics, bronzes and funerary practices. Thelegal and ritual records found in this grave are thus quite securely dated tothe end of the fourth century b.c.: this turns out to be crucial evidence forthe comparative dating of the grave at Guodian.

In August and October of 1993, archaeologists found the much moremodest grave at Guodian, also north of Ying, the capital city, but sevenkilometers closer than Baoshan. When discovered, this tomb, Guodian #1,was found to have already been robbed repeatedly. Archaeologists rushingto undertake salvage work on it found, floating on the surface of the waterthat filled the pit, 804 bamboo strips. After treatment to remove the layerof black (perhaps oxidization) that initially obscured the ink inscriptionson these strips, scholars found that they contained more than 13,000graphs. This time, the grave documents were neither funerary inventories,divination texts nor legal records like those found before in Chu graves,but instead a rich trove of philosophical works. These included not onlythree separate collections of passages found in the transmitted Laozi, and afew partial chapters of the Liji, but also previously unknown works orchapters of teachings that seem to combine both Daoist and Confucian el-


ements. Many of the philosophical writings include quotations from theShijing, the Shujing and other early texts long known in received versions.Because these finds challenge many a theory about the antiquity and va-lidity of vital transmitted philosophical works, as well as centuries of in-terpretation, the date of Guodian #1 has become a key piece in the in-creasingly complex puzzle of pre-Qin thought.

The grave furnishings from grave #1 at Guodian help locate this gravein the archaeological seriations applied to Baoshan #2, and, more specifi-cally, almost uncannily resemble certain of the Baoshan objects: for exam-ple, the square mirrors, the decorated bronze fittings for the ends of char-iot shafts, the wooden head-rests, the lacquer drinking cup with two han-dles and the pottery copies of bronze ding vessels. In the summary of theirpreliminary examination of these seriations, the authors of the initial ex-cavation report concluded cautiously: “Grave #1 at Guodian exhibits thespecial characteristics of the period from the late middle portion of theWarring States period; its owner must have been buried from the middleof the fourth century b.c. to the beginning of the third century b.c.”16

Since publication of the initial report, Professor Xu Shaohua, of WuhanUniversity, has reconsidered the seriation of artifacts and has concludedthat the grave may be dated quite confidently to the last quarter of thefourth century.17

As to the identity and status of the occupant of Guodian #1, while theseare less clear than those of Baoshan’s Shao Tuo, the grave furnishings stilloffer useful clues. First, among the lacquer-ware was included a square“ear-cup,” on the back of which is a vital inscription. While the authors ofthe preliminary excavation report suggested that the inscription should beread “Dong gong zhi bei,” or “cup of the East Palace,” other scholars haveinterpreted this inscription to read “Dong gong zhi shi,” literally, a “Teacherof the East Palace.” Pre-Qin texts, beginning with the Shijing, use thephrase “East Palace” to refer to the royal heir,18 so Professor Li Xueqin andothers have inferred that the cup belonged to a Chu royal heir at one time,and that perhaps the individual in grave #1 was a royal tutor, given the na-ture of the documents in his sarcophagus. For historians of early thought,it would be particularly exciting to find the actual text-books used by oneof the peripatetic thinkers of the period, who are said to have moved fromstate to state offering their versions of political and ethical philosophy toprinces ambitious for empire. Second, some scholars have relied on thediscovery in this grave of two ceremonial staffs or canes decorated with el-egant bird-shaped bronze finials to conclude that the occupant may have


died as an old man; these clues have encouraged speculation that he mayhave been an important teacher, who died, as teachers should, full of years.(Unfortunately for this theory, an even grander staff was found in thegrave of Shao Tuo, whose remains show that he died in early middle age,19

suggesting that fancy staffs were, at the time, more a badge of rank than aprop of age). The preliminary report on Guodian #1 shows that much ofthe occupant’s skeleton was preserved; this raises hopes that eventually,morphological and isotopic analysis of his bones may reveal more detailsabout him, including general health, age at death, diet and possible migra-tion from the place of his birth.

Chinese scholars have concluded that, whether or not the cup inscrip-tion means that the man in Guodian #1 was a royal tutor, the size of hisgrave and the nature of his grave goods suit the social status of shi, lowernobility or gentleman: several rungs lower in Chu society than the high ju-dicial official Shao Tuo.20

The story of law and philosophy in Warring States Chu will not endwith these two graves. A visit to both sites in the fall of 1999 revealed thatdozens of large and small tumuli marking other tombs are visible in all di-rections from both the modest indentation left by excavation of Guodian#1 and the substantial tumulus of Baoshan #2. It seems very likely that theeconomic development of this part of Hubei Province, already proceedingapace, will result in construction leading to further discoveries that willshed light on these individuals, their social context and their valuable doc-uments.

In Section 5, below, this paper will argue that the texts found at Guo-dian can be understood to describe elements of a philosophy of law—aphilosophy concerning key themes of any legal philosophy: human na-ture, modes of social control, the judge’s ethic, access to transcendent au-thority and the legitimacy of the state.21 Since the Guodian texts are notnecessarily consistent with each other, or even within each essay, asarranged by the editors of the 1998 Wenwu edition, it seems prudent ini-tially to consider the ideas presented in them as no more than “elements”of legal theory.22 However, in this section I will propose ways of under-standing the elements so glimpsed as reflecting intelligible, if not uniform,attitudes toward law. Section 5 will then draw on contemporary legal doc-uments to consider whether or not the practice of law in Chu reflectsthese attitudes.


V. Elements of Legal Philosophy in the Guodian Texts

A. The Nature of Humans

The root of any philosophy of law lies in its assumptions about humannature.23 The essay given the title of “Xing zi ming chu,” or “The NatureDerives from the Mandate,” by the editors of the Guodian texts reflectsone theory of human nature. The sentence from which the editors tookthe title asserts that the shared potential of the human xing, or Nature,24

has a transcendent source:

The Nature derives from the Mandate;

The Mandate is sent down from Heaven. [Strips 2–3]25

The first of the seven strips placed by the Guodian editors at the beginningof this essay asserts that, although humans in general are endowed with acommon Nature, this shared property is capable of development in vari-ous directions: it is not oriented to any particular end. Not defined in ad-vance, the human potential of each person’s Nature is realized both by in-ternal development and in response to influences from outside:

Although human beings in general have an [inborn] Nature,

The Heart (xin) lacks a fixed Will26(zhi);

It depends on Material Things (wu) to become active;

It depends on Pleasure (yue) to proceed;

It depends on Practice (xi) to become fixed. [Strip 1]27

The Nature in each person lies dormant until aroused by awareness ofthe material world; once aware, it inclines to things it finds pleasing. Thisunformed, exploratory Nature does not gel into any particular pattern ofbehavior, good or bad, without repeating, practicing it. Interestingly, thepassage does not tangle with the famous question raised in Xunzi’s debatewith Mencius and Gaozi as to whether human Nature is essentially evil,morally neutral or good.28 Instead, the author makes the value-free claimthat, while human Nature is shared and universal, in that everyone has aNature and all Natures derive ultimately from the same source, Heaven,human Nature is also almost infinitely responsive to its environment, infi-nitely malleable.29

Strip 2 carries this analysis of human psychology further, by tracinghuman feelings, or qi, to roots in the Nature:


The Humours (or Vapors)30 (qi) of happiness, anger and the passions

Belong to the Nature;

When they are manifested on the outside,

It is because Material Things seize (elicit) them.

[Strip 2]

Human feelings like these are emanations of human Nature; at first in-ternal to the human being, they are expressed on the outside in sponta-neous responses to the surrounding material world. In the Guodian essay“Xing zi ming chu,” there is no suggestion that human Nature is necessar-ily perverted or polluted by its interactions with Material Things, or thatits responses to Things reveal an inherently selfish aspect that needs to besubdued.31 However, the essay does later warn that some attractions toMaterial Things can become excessive and thus dangerous:

The eye’s love of physical beauty

The ear’s pleasure in sounds:

[These bring] an up-surge in the Humours [qi]

[Such that] men think nothing of dying [for them].

[Strips 43–44]

The “Xing zi ming chu” further develops its natural history of humanNature by stating that human inclinations—the Emotions, or Dispositions(qing)32—grow out of the Nature. The Way (dao), or process of perfectinghuman Nature, must therefore begin with them:

The Way (dao)33 begins with the Dispositions (qing);

The Dispositions themselves are born out of the Nature.

In the beginning, close to the Dispositions;

In the end, close to Righteousness (yi).

[Strip 3]

This sentence summarizes the essay’s overall thrust: it is not a staticcharacterization of human Nature’s ethical orientation, but a theory of theprocess of cultivation (or dao) whereby the initially undirected Nature canreach perfection. The end-point of the process is “Righteousness.” Thisconcept, sometimes translated less biblically as “Justice,” seems to be astandard, a point of reference outside of humans to which their Naturescan become oriented. It reappears as one of the six paradigmatic virtues inthe Guodian essay “The Six Virtues” (Liu de), where it is said to be thevirtue particularly proper to a ruler [see strip 15].


The “Xing zi ming chu” goes on to assert, on strips 3–4:

Those who recognize the Dispositions

Are able to express them;

Those who understand Righteousness

Are able to internalize it.

This language leads us to suspect that self-expression may be one key tothe process of perfecting the human Nature. It seems even to hint that asort of uninformed expression of one’s Dispositions, one’s inclinations, isthe starting point of the Way. This author shows no sign of fearing andhence needing to control and repress the impulses of a selfish or danger-ously feral, sinful self.

Elaborating on the different ways that the Nature may be influenced,the essay continues a few strips farther on:

In general, the Nature may be moved, encouraged, engaged, polished

and sharpened, expressed, nurtured and extended.

In general, that which moves (dong) the Nature is Material Things

(wu);

That which encourages (ni)34 the Nature is Pleasure (yue);

That which engages (jiao) the Nature is Purpose [or Precedent] (gu);

That which polishes and sharpens (li) the Nature is Righteousness (yi);

That which [affects] the expression (chu)35 of the Nature is Circum-

stance (shi);

That which nurtures (yang) the Nature is Practice (xi);

That which extends (zhang) the Nature is the Dao (dao).

[Strips 9–12]

This looks like an initially egalitarian view of human Nature, in which thedifferences between humans result from a series of outside influences.Among the forces that influence the Nature, Circumstance emerges as onereason for the way in which each person’s Nature might be differently, orperhaps less fully expressed. Each of the listed influences is further ex-plained as follows:

In general, that which is visible is called a Material Thing;

That which makes one happy is called Pleasure;

The configuration of Material Things is called Circumstance;36

[The performance of] great deeds is called Purpose [or Precedent].


As for Righteousness, it is the criterion of the various Excellences;

As for Practice, it is for the exercise of one’s Nature. [Strips 9–14]

The Dao includes the Dao of all Things;

As to the Dao in general, the Arts (shu) of the Heart take first place;

Thus, while the Dao comprises four Arts,

Only the Dao of humans may be followed.37 [Strips 14–15]

The last four lines teach that the Dao governs everything in the materialworld, but that the Dao of the Heart is most important (for humans), andthat humans must keep their focus on the social arts, the Dao of humanity(perhaps as distinguished from the Dao of the natural world).

This compact analysis of the various ways in which human Nature maybe influenced focuses on benign influences: there is no mention of anystate project of seeking to mold human Nature coercively from outside.While Righteousness figures as a way of shaping the Nature by offering astandard for excellent behavior, and the language used to characterize itsinfluence uses the craftsman’s metaphor of polishing or sharpening, it ispresented more as a model than an external mode of coercive control. The“Xing zi ming chu” theory of human Nature seems appropriate for theChu context, given that the Baoshan legal documents show no mention ofcentrally imposed statute law, mutilating punishments or torture. How-ever, it is dangerous to conclude from the absence of these kinds of coer-cive measures in the legal documents that these were not used at all inChu at the time, particularly as other Guodian philosophical essays men-tion xing, mutilating punishments, more than a dozen times, often with adegree of approval, or at least routine acceptance.38 These essays also offerquite different ideas about how human Nature evolves. For example, thechap-book collection of aphorisms, “Collected Sayings, No. 1” (Yucong 1),contains the following account:

Heaven gives birth to the 100 Things: among them, humans are the

most noble.

The Dao of humans includes a part coming from within, and a part

entering from without.

The part that comes from within includes Benevolence, Loyalty and

Good Faith;

The part entering from without includes Rites, Music and Mutilating

Punishments.

[Strips 18–21]39


This saying is harsher than the passage on strips 9–15, quoted above, usingthe concept of the Dao as shorthand for various ways of forming humans,including both internal cultivation of inherent Virtues and external con-trols, the latter rather unexpectedly classing physical mutilation togetherwith Rites and Music. It is clear that there was a wide variety of specula-tion among the intellectuals of the time about how human Nature can beformed and developed. However, the dominant account from the Guodiangrave is the much less authoritarian “Xing zi ming chu,” discussed in thissection.

As to the use of statute law, the Shiji relates40 that the mythic heroQu Yuan was an aide to the same King Huai of Chu whom Shao Tuoserved as zuoyin. Because he was skilled at drafting edicts, the historiantells us, the king assigned him to produce xianling, some form of writ-ten laws.41 It was intrigue surrounding this assignment that led to QuYuan’s expulsion from court, his rivals charging that his pride in thelaws he drafted amounted to lèse-majesté. This confusion over the sourceof authority in written law might suggest that it was a relatively new de-parture for Chu.

The “Nature Derives from the Mandate” then describes the origins ofthe Classics and the important role of the teaching of the Classics in a pro-gram designed to influence human Nature:

The Odes, the Documents, the Rites and the Music were initially pro-

duced by humans. The Odes were composed by the

accomplished;42

The [speeches in the] Documents were spoken by the great;

The Rites and the Music were performed by the heroic.

The Sage compared the varieties of these writings and assembled

them in categories;

He inspected their inherent order and arranged them accordingly;

He made their [ideas of] Righteousness concrete and ranked them;

He deduced the Principles (li) behind the Dispositions [expressed in

them] and selected among them.

Only then did he return to teach them.

Teaching is the means whereby Virtue (de) may be aroused in the

center [heart]. [Strips 15–18]

This passage emphasizes the role of humans teaching humans as key tothe process of drawing out the best in human Nature. In its emphasis onthe role of the teacher, it would suit the library of an eminent philosopher,


or royal tutor. While this essay is careful to focus on the human, ratherthan the divine source of the canon, its human authors are described asyouwei (translated above as “accomplished,” “great” and “heroic”), givingthe tales of their deeds, their rites and their music a normative valuesomewhat like that of the Homeric epics.43 In this formula, too, Virtue iselicited from, not imposed on, the People.

In a reference to contemporary legal process, this section of the essayrefers to the use of non-coercive methods, such as pledge and deposit,to ensure that contracts are honored or evidence given in a legal pro-ceeding is reliable. The authors characterize these methods as Righteous,or Just:

Money and silk are what one uses to ensure Good Faith and [true]

testimony.

[Use of] statements [made under such circumstances] follows the

Dao of Righteousness.

[Strip 22]

This statement is significant because, unlike Qin and Han excavated legaldocuments, these Chu texts do not refer to the use of judicial torture. Itseems possible that the essay here offers a covert criticism of the practice,which is likely to have already been the practice in Qin.44 An early Hanbook of exemplary cases for the education of local magistrates, found re-cently in former Chu territory not far from Baoshan and Guodian, in-cludes one cautionary case in which Qin local officials coerced a defen-dant into making a false confession by repeated use of very brutal tor-ture.45 While the case records that the defendant’s appeal wasinvestigated, his conviction ultimately overturned by Qin central authori-ties and an attempt made to “make him whole” again, its appearance inthe casebook suggests that judicial authorities in early Han had less confi-dence than their imperial predecessors in the use of torture to get to thetruth. Unfortunately, increasingly despotic legal culture in the later em-pires continued to cling to the practice of judicial torture of both defen-dants and witnesses, the bureaucrats’ fear of losing control over socialdisorder overshadowing the notions of Righteousness, or Justice, enunci-ated here.46

After an exposition of the key role of music in facilitating the full ex-pression of human Dispositions, the argument notes that in the matter ofself-perfection, the Heart is the quarry, and success should not be judgedonly on the basis of acts or accomplishments:


For those who Study, seeking the Heart is most difficult;

Although one may be accomplished,

Yet cannot reach the Heart, [accomplishment] is not to be valued.

[Strips 36, 37]

Reaching the Heart involves giving full rein to the Dispositions:

In general, human Dispositions may be pleased.

If a person’s Dispositions are followed, even excess is not to be de-

spised;

If a person’s Dispositions are not followed, [accomplishing] even the

hardest task is not to be valued.

[Strip 50]

While this passage does not take a dogmatic position on the issue of thegood and evil in human Nature, it assigns a Dr. Spock–like positive valueto the full expression of human Dispositions, even to excess: perhaps anEarly Chinese version of “expressive individualism.”

Finally, two sections included by the editors toward the end of the essayhint at how this theory of human psychology might affect government.Strips 51–53 suggest that a single person with a fully-expressed, noble Dis-position could be enough to establish the perfect state:

They have Faith without his having spoken; for he has a noble Dis-

position.

The People approach the norm without ever being taught; for his

Nature is Excellent.

The People exert themselves without rewards; for he holds good for-

tune within.

The People tremble with respect despite never suffering mutilating

punishments; for he has an awe-inspiring Heart.

The People honor him despite his low station; for he possesses

De/Charismatic Virtue.

The People flock to him in spite of his poverty; for he holds to the

Dao/Way.

[Strips 51–52]

The person who, by perfecting his Nature, can achieve this kind of self-ex-ecuting, minimalist government, is said to possess the Dao.

The sort of government contemplated by these lines resonates with thepolitical aspects of the amorphous philosophy referred to as “Huang Lao”


in the Shiji.47 While scholars have recently criticized overuse of the term“Huang Lao” when its exponents and contents have yet to be precisely de-fined, it is still useful to discuss whether elements of what the historianscalled by that name can be detected in these grave texts. The historians’view of the political side of Huang Lao thought, as analyzed by MarkLewis in Writing and Authority in Early China, reflected the desire to min-imize governmental interference in the lives of the population, the policyof avoiding administrative detail, the hostility to texts in general and thepolicy of relative decentralization of governmental power through grant-ing discretionary authority to delegates.48 Lewis notes that the theory har-monized quite well with the early Han attempt to return to a “feudal”form of government, under which large portions of the empire weredeeded to relatives and allies of Liu Bang as theoretically independent guo,or “kingdoms.” The Baoshan documents do seem to reflect a somewhatdecentralized political structure, characterized by a hodge-podge of feudaland administrative subdivisions, often held by powerful lineages that seemto treat the king as primus inter pares, more of a power- broker than anabsolute ruler.49 In addition, intergovernmental directives sometimes lookmore like bargains or contracts than orders, while certain governmentalfunctions usually performed by the appointed agents of centralized states(such as provision of seed grain in case of a bad year50 and arrest of crimi-nal suspects51) were delegated to local authorities.

However, the profusion of administrative texts in Shao Tuo’s grave sug-gests that Chu did not share hostility to texts, if such an attitude was infact part of Huang Lao teachings!

Strips 65–67 of “Xing zi ming chu” then bridge the gap between humanpsychology and politics by proposing that the kind of person described instrips 51–52, a junzi, can form the Heart of a perfect realm, the influenceof his perfected Nature spreading to the populace through his perfect per-formance, his repetition of the rituals of everyday life:

The junzi, in holding fast to his Will, must yet keep an open heart;

In speaking, must be scrupulous about following up in Good Faith;

In performing the rites of host, must present a demeanor of Respect;

In sacrificing, must display a humble Reverence;

In presiding at funerals, must express unfettered Sorrow.

The junzi, in his person, exemplifies the Ruler’s Heart. [Strips

65–67]52


This essay elevates individuals by finding a transcendent source for theNature inherent in each. It seems to favor modes of self-cultivation overoutside control as the best way to perfect human Nature in general, but as-signs an important role to the transmission of human values from outsideby the teaching of the Classics. It sets a premium on the spontaneous self-expression of human Nature and criticizes the effort to accomplish greatthings if that would involve suppression of one’s Nature, or, perhaps, theNature of the People. Finally, it brings the whole argument into the realmof politics by focusing on the political efficacy of the junzi’s personal be-havior.

B. Modes of Social Control

The theories of social control in several of the other Guodian essays seemto flow from the “Xing zi ming chu” view of human nature: rather thanpenal coercion, and intrusive, top-down direction of the people, order isto be achieved in the state by a kind of human sympathetic magic—by ajunzi’s, or the ruler’s, personal modeling of virtue. It is in the area of socialcontrol that the authors of the Guodian corpus seem to have been engagedin a debate with ghostly opponents who favor more intrusive and despoticforms of government.

In the Guodian essay entitled “Respect Virtue and Righteousness” (Zunde yi), the ruler has a particular duty to display personal virtue in his lead-ership of the state:

Respect Virtue and Righteousness;

Illuminate the ethical norms for the People;

This may be used to become Lord.

Anger and Indulgence reined;

Perfection in reforming oneself;

This is the duty of the Ruler of Men.53

[“Zun de yi,” strip 1]

Because the Nature of humans is so malleable, so responsive to both moraland immoral leadership, the ruler’s personal behavior, good or evil, deter-mines the result of his rule:

Yu followed the Way of humans in ordering his People;

Jie followed the Way of humans in bringing chaos to his People.


Jie did not change Yu’s People and then throw them into chaos;

Tang (Yu) did not change Jie’s People and then order them.

The Sage’s ordering of the People followed the Way of the People.

[Strips 5–7]

In Chinese legends of ancient history, Yu and Tang were both famous forbeing virtuous, capable rulers, while Jie was the prototype of a cruel andevil one. These lines mean that it is “natural” for humans to imitate thebehavior of their rulers; although their basic common Nature does notchange, the People take on the impress of their rulers. This conclusion fol-lows quite logically from the theory of undirected, malleable but teachablehuman Nature presented in “Xing zi ming chu.”

Neither purely intellectual explanation nor coercion will succeed in get-ting the People to follow the Way:

The People may be induced to follow it,

But cannot be made to understand it;

The People can be led,

But cannot be coerced.

[Strips 21–22]

In these lines we see a word play on the term dao. In the first line, it is thecausative verb, “to treat some doctrine as the Way, to follow it”; in thethird line, it is the transitive verb “to lead,” used in the passive sense. As towhat will be effective in leading the People to the Way:

Only Virtue will suffice.

The spreading [influence] of Virtue

Is faster than the transmission of commands by the Royal post:

There is nothing truer than its message.

When people meet, there are none who do not know of it.

[Strips 28–29]

The reason for the efficacity of the ruler’s personal virtue is that humanbehavior is less determined by command and response than by observa-tion, imitation and sympathetic involvement:

Inferiors, in serving their superiors,

Do not follow their orders, but rather imitate their behavior;

If the superior loves something, those below will be deeply affected.

[Strips 36–37]


The essay given the title of “Chengzhi wenzhi” by the Guodian editorslinks this almost mystical power of the ruler’s personal example to theGreat Norm (da chang) sent down by Heaven:

Heaven sent down the Great Norm to bring order to human rela-

tionships.

It regulates the Righteousness between Ruler and Subject;

It manifests the Family love between Father and Son,

It clarifies the Distinction between Husband and Wife.

The junzi brings order to human relationships by conforming to

Heaven’s Virtue.

[Strips 31–33]

The location of this law sent down from Heaven is not in a text, like theten commandments in the Bible, but in the heart, person and behavior ofthe Sage:

What did it mean when the Great Yu said:

“Wherever I dwell, my habitation is Heaven’s Heart.”

This means “Although I dwell here, I am yet at home in Heaven’s

Heart.”

Thus, the junzi may be seated on the dais,

But will yield to accept a place in obscurity;

He may have a place at court,

But will yield it to lodge in lowliness:

His [true] habitation is never far.

[Strips 33–34]

What did it mean, when in ancient times, the junzi said:

“The Sage [embodies] Heaven’s Virtue”

This means: he scrupulously seeks within

And can perfectly accord with Heaven’s Norm.

[Strips 37–38]

An aspect of the Sage’s ability to embody the Great Norm is that he doesnot need to depend on the trappings of power. The theme of a Sage’s abil-ity to be powerful without insisting on protocol is also reflected in familiarsections included in the Guodian Laozi chapters:

The reason that the Rivers and Seas can lord it over the myriad val-

leys


Is that they are able to be below the myriad valleys;

Thus they are able to lord it over them.

The Sage takes precedence over the People

By putting his person behind them . . .

[Strips 2–5]

In the Laozi context, however, the trope is used to describe a device forholding power effectively, rather than as proof of an internal human“channel” to a transcendent source of norms, as in the “Chengzhi wenzhi.”

The “Chengzhi wenzhi” essay returns again and again to the themestated in the “Zun de yi”: coercion will not work to establish order in thestate.

For this reason, if he lacks it in his person, while enforcing it in his

rules,

Although he may pile on the commands, the People will not follow.

For this reason, the multiplication of fines and mutilating punish-

ments to cow [them],

Comes from the ruler’s failure to [look to] himself.

In ancient times, the junzi said:

“It is by War and the Punishments that the Ruler destroys his

Virtue.”54

[Strips 4–6]55

The essay assigned the title of “Zhong xin zhi dao,” or “The Way ofzhong and xin,” demonstrates how peace and order in the state require theruler to treat the people with these two virtues. The ordinary translationof zhong as Loyalty, used in English for the duty owed by a subordinate tohis superior, does not suit its context in this essay; here, the virtue’s mo-mentum is top-down or center-out, from ruler to people, rather thanfrom vassal to lord. One explanation of its meaning might be that a rulerwho holds to the Great Norm in his inner heart (zhong xin) will conformto it in his government. These were not empty, abstract terms in EarlyChina. Blood oaths, or meng, discussed below in Section 5.D, use thephrase “split open my vitals in serving my Lord (ban qi zhong xin yi shi qizhu)”; perhaps the covenantors who joined into the oaths believed thatthe spirits authorized to enforce the imprecations could read a person’s in-tentions, his sincerity in his vitals. As noted below, Chu law used the sameinstitution of meng to guarantee the truth of testimony in a judicial con-text. The term zhong may thus combine the duty of both ruler and subject


to be true to his/her Nature with belief in spiritual enforcement of thatduty.

Good Faith, too, is not quite adequate to express the meaning of xinhere; it seems to encompass “rule of law” norms: the ruler’s duty to treatthe people with regularity, so that his actions are predictable, rather thanarbitrary.56 For this reason, these remarks will use Chinese transliterationsto refer to the two qualities. The essay, as arranged by the editors, beginsby asserting that a ruler who governs with zhong and xin will reap the loveof the People:

It has never happened that

[The Ruler] accumulates acts of zhong and xin

And the People do not love him.

[Strips 1–2]

In government, possession of zhong implies encouragement and nurtur-ing, rather than coercion, while possession of xin implies regularity andpredictability:

Ultimate zhong is like the Earth:

It nurtures growth and does not cut down;

Ultimate xin is like the Seasons:

They follow each other with regularity

And need no contract.

[Strip 2]

In these lines there is a faint flavor of what Randal Peerenboom calls“foundational natural law”: the idea that one alternative to completely ar-bitrary “rule by man” was rulers’ modeling their government on the reli-able laws that govern the natural world.57 As part of the idea of “rule oflaw,” a ruler that models himself on the regularity of the earth and thefour seasons has less room for the greed and arbitrary use of power thatmake “rule by man” so dangerous.

Government characterized by zhong and xin does not depend on intel-lectual persuasion, contractual obligations or artificial deadlines:

Great zhong does not explain;

Great xin does not need deadlines.

Not explaining, yet sufficient for nurturing: such is Earth;

Not bound by deadlines, yet dependable: such is Heaven.


That which tallies Heaven and Earth: this is what is meant by zhong

and xin.

[Strips 4–5]

The phrase translated here as “dependable” is literally keyao, or somethingthat “may be demanded”: zhong and xin are not just a matter of grace;they may be claimed as standards against which the Ruler’s behavior canbe measured.58 On one hand, they are described as “that which talliesHeaven and Earth,” and are thus rooted in something outside of the Rulerand his government; on the other hand, they imply the predictable regu-larities of the natural world. In the human world, this passage suggests,regularity, predictability is achieved by making and enforcing deadlines, orqi. Deadlines work by cutting up the vast continuity of time into artificialbut manageable (and thus enforceable) segments. The virtuous ruler’s xin,on the other hand, needs no such oversight to be “naturally” in time withthe cycles of Heaven.

Interestingly, the Baoshan strips show that the central government inChu made great use of qi deadlines in controlling the performance of del-egated tasks by its citizens and officials. One book found in Shao Tuo’sgrave, which had the title Shouqi, or “Assigned Deadlines,” written on theback, contained records of sixty deadlines assigned to various individualsand groups for accomplishing specified tasks. These records take the pat-tern of the following examples:

In the eighth month, on day jisi [day 6 of the 60 day cycle], the estate man-

ager Kao Rui, and the ward manager Sui De, of the marshal of Yun, received

this deadline: if, by day xinwei [day 8] they do not check the reason behind

the injury to Chen Zhu Wei (perhaps Wei, the lord of the Chen lineage) and

report, they will be investigated and held liable. [Strip 22]

In the eighth month, on day jiaxu [day 11], Zhou Ren, a retainer of the

moao of Liao, received this deadline: if he does not come to court on day

guiwei [day 20], he will be investigated and held liable. [Strip 29]

In the first example, Shao Tuo is anxious to find out what lay behind aninjury to a person who may have been the head of the important Chenfamily, possibly descendants of the former rulers of Chen, a state absorbedby Chu in the course of its expansion North and East into the Yellow Riverplain. Many of the family names that appear in Shao Tuo’s archive arethose of former Zhou states unlucky enough to lie in the path of Chu’s ex-pansion toward the North China Plain. It is likely that the Chu kings, like


the Zhou founders seven centuries earlier, made it a practice to enfeoffoff-shoots of former ruling families in their old territories. As the Zhoukings discovered, however, such “holdover” lineages were hot-houses fordiscontent and rebellion. The need to keep the peace among them mayhave encouraged Chu’s development of a reliable forum and procedure forresolution of disputes both among the great families and between thefamilies and the Chu central government. The second example shows howShao Tuo’s office used a qi deadline to assert personal jurisdiction over aperson who was the moao (perhaps equivalent to chamberlain) of a noblefamily in Liao, a state taken by Chu during the Spring and Autumn pe-riod.59

Finally, this essay asserts that government by zhong and xin will ensureeconomic success:

Taking zhong as the Way

Ensures that the 100 craftsmen do not produce shoddy goods

And yet there is sufficient to nurture everyone;

Taking xin as the Way

Ensures that the many Things are brought to fruition

And yet the 100 Excellences are maintained.

[Strips 6–7]

As noted above, the virtues of zhong and xin correspond to familiar as-pects of the bundle of practices required of a state under the “rule of law.”In an odd foretaste of current rule of law enthusiasts in the mainstream ofLaw and Economics, the essay even promises that their implementationwill have beneficial economic results!

The idea that a proper state avoids coercion and relies on example andpersuasion may be reflected in the paucity of punishments appearing inthe Baoshan records. Although, as Chen Wei has pointed out, Chu clearlyused some coercive measures to arrest, transport and detain the people ac-cused of wrongs, especially violent ones [strips 120–123], it is hard to pindown examples of physical punishment used to deter infraction of a posi-tive mandate. The book labeled Shuyu, or “A Record of Accusations,” givesus the texture of Chu law in the kinds of wrongs complained of, rangingfrom injury [strip 80], kidnapping [strips 93, 97] and murder [strips 83,84 et al.] to confiscation of land [strip 94], resisting an official [strips 88,99] and judging illegally [strip 102].60 Unlike the cases included in theearly Han case-book found not far away, none of these suits clearly refersto a preexisting statute. Austinian law, in the sense of “commands backed


by threats,” is strangely absent, or at least reticent, in this collection. In itsplace we see individual suits by injured parties for redress of specificwrongs. While third parties could sometimes bring suit, as in strip 82,where an apparent outsider sues four members of the Lu family for failingto divide their fields (fentian), Shao Tuo’s archive has no examples of suitsbrought by officials in their official capacity.61 In addition, most of themurder cases in the “Record of Accusations” were initiated by familymembers of the victims. The overall impression is of a society in whichthe family or kinship group of the victim had the responsibility for exact-ing retribution, but had to use the machinery of the state to do so.

From two fuller case records, the suit by the legal officer (“supervisor ofharms,” sibai) Ruo against the Lord of Shaoxing over the seizure of foursubordinates [strips 15–17] and that initiated by Shu Qing over the mur-der of his brother [Strips 131–139], we see that plaintiffs could press theirclaims at higher levels if not satisfied with the actions of lower officials.However, they ran the risk that defendants might assert counter-claims forabuses committed in the course of the investigation, which would then be-come part of the yu, or case for official adjudication.62

Chen Wei has found in the Chu strips evidence of shou, an institutionresembling guaranty in English law, under which supervision of certainindividuals was delegated to members of their families:

In the year following that in which Xu Ying, ambassador of Eastern Zhou,

presented ceremonial meats at the Chu capital, Zai Ying (317 b.c.), the

ninth month, on wuwu (day 55), Ke He, a resident of the income fief at-

tached to the gravesite of King Xuan, and Ke Qie and Ke Shi, residents of

the salary fief of Yi, the prefect of Deng, became guarantors of Ke Yi, a mar-

ket officer of the income fief attached to the gravesite of King Xuan.

[Now] Yi Meng, the officer in charge of the case, is seeking Yi. If the

three guarantors do not produce him, they will be investigated and held li-

able. [Strip 58]

The legal device of the guarantor, which flourished in later Chinese legalsystems, recognizes and uses community and kinship structures to main-tain control over people who would otherwise be beyond reach. In addi-tion, Chu not only kept its own population registers, but also used regis-ters of various kinds belonging to local administrators and noble lineagesto find individuals for judicial, military and corvée purposes, again ex-tending its reach to inhabitants of fiefs or distant administrative districtsthat would not otherwise be under its direct jurisdiction.63 In a case in-


volving the right to the labor of four subordinates sharing the surnameDeng, the adversaries were ordered by the adjudicator to produce dianregisters as evidence of their right to the labor of the group.64

As to the economic aspects of the legal order visible in Shao Tuo’sarchive, the case recorded on Strips 151–152 offers some evidence of atrend toward decentralization, divestment of direct power. The case con-cerns a family whose salary fief (shitian) was sold by a successor in inter-est, several generations removed from the original grantee, to pay offdebts. When this transfer was contested, with the claim that there was nowno proper heir to the salary fief, the official response was that Pan Xu, theoriginal grantee, “did have an heir”: i.e., the transfer to creditors was effec-tive and the original link between the state and the land had been severed.On occasion, one sees examples of the state mediating economic disputesbetween individuals or groups, as in the series of records concerning thesuit between the people of Deng (Deng ren) and officials of the fief of LordPu and the district of Bi.65 A month later, the parties reported that theyhad resolved their differences (gaocheng) by the officials of the two dis-tricts allowing the people of Deng to cut wood within their districts, per-haps in quantities equivalent in value to the gold initially demanded.66

Among Shao Tuo’s documents there is also a carefully notarized anddated bundle of strips recording an order from the king of Chu to lendgold from the south of the Yangtze River to a place in the upper HuaiRiver valley for the purchase of seed grain. At the end of the royal order, adate eight months later is fixed for the repayment of the loans. To thisbundle was appended a series of strips recording loans made by variousdistricts in accordance with the order, followed by a notation as towhether each loan had been repaid “on time.” [Strips 103–119] While theChu state organized this effort at famine relief, actual execution was dele-gated to the officials in the more fortunate districts. Perhaps, in trying tosupport the people stricken by famine, the king was expressing the nurtur-ing virtue of zhong, as delineated above, while in keeping track of repay-ments he was acting with xin, dependable regularity.

C. The Ethic of the Moral Judge

The Guodian version of the “Wuxingpian,” a later, annotated form ofwhich was also found in the Western Han grave at Mawangdui, deals withthe process of recognizing, practicing and ultimately internalizing the sev-eral abstract virtues: the Five Conducts of Benevolence, Righteousness,


Propriety, Wisdom and Sageliness.67 While success in achieving the firstfour of these is defined as Excellence, or the Way of Man, the next step, ofattaining Sageliness, is defined as the Way of Heaven. [Strips 4–5] Sageli-ness seems to be the level of human development that is contagious, thatproduces resonance in the behavior of other people. The distinction iselaborated in sections 9–10:

The bronze sounds, and the jade resonates:

[The metaphor for] one who possesses Virtue.

The clangor of bronze is Excellence; the chime of jade is Sageliness.

Excellence is the Way of Humans, while Virtue is the Way of Heaven.

Only for one who possesses Virtue will the clangor of bronze be

paired with

The resonance of jade.

[Strips 19–20]

In this passage we see a hint that the highest achievement of self-cultiva-tion, the contagious state of Sageliness, depends on a link with the tran-scendent power of Heaven: the ultimate source, according to the “Xing ziming chu,” of human Nature.

While the “Wuxingpian” says nothing about legal statutes or mandates,in this way echoing the “statute free” nature of Chu legal documents notedabove, it raises the issue of how attainment of the virtues will affect casejudgments:

Distinguishing in the inmost Heart and implementing with Recti-

tude:

This is to be Upright.

Upright and achieving: this is to surpass.

He who surpasses and does not fear strength and power will achieve

results.

To avoid allowing the lesser Way to harm the greater Way: this is Dis-

crimination (jian).

If there is a great crime, to punish it heavily: this is Conduct (xing).

[Strips 33–35]

The tone of this essay is much more favorable to the use of penal law thanthe “Xing zi ming chu,” the “Zun de yi” and the “Chengzhi wenzhi,” dis-cussed in Sections 5.A and B. While less squeamish about advocating theuse of harsh punishments, however, these paragraphs emphasize the dutyto pronounce judgments without regard to pressure from the powerful.


Again, one of the bundle of ideas associated with the catch-phrase “rule oflaw” is the state’s willingness to enforce the law in spite of such pressures.

If one does not Discriminate, there is no Conduct;

If one does not Shield (ni), this is to fail to distinguish the Way.

In the case of a serious crime, to punish heavily: this is Discrimina-

tion (jian).

In the case of a minor crime, to shield [the offender]: this is Lenience

(ni).

. . .

The meaning of Discrimination is selectivity:

In [treating crimes] seriously, to be sparing;

The meaning of Lenience is concealment:

In the case of small offenders, to sustain.

Discrimination is the method of Righteousness;

Lenience is the method of Benevolence.

Firmness is the method of Righteousness;

Flexibility is the method of Benevolence.

“Neither harsh nor negligent, neither rigid nor soft”:

[These lines from the Shi] express my meaning.

[Strips 37–41]

In terms of legal philosophy, these passages from the “Wuxingpian” offera judge-centered ethic. Under the French civil law tradition, a deep-seated suspicion of the power of judges, learned when the parliaments ofjudges opposed reform at every step in the preceding centuries, led toadoption of Napoleon’s Code Civile. The Code was designed to be com-prehensive in scope and to be mechanically applied by courts workingautomatically, like “vending machines of the law.”68 This essay instead ad-vocates reliance on the judge’s individual discretion in deciding how totreat each case.

In the Baoshan records of “The Case of the Murdered Brother” (dis-cussed below, Section 5.D), higher officials, including the king himself, re-spond to the plaintiff ’s complaints of inaction by repeatedly returning thecase to the lower court with no more substantive guidance than the com-ment that it had been delayed too long and the order that it had to “bebrought to judgment” (wei zhi duan) within a certain time period. A legalsystem emphasizing judicial discretion is a form of decentralization ofstate power—and perhaps an aspect of the ideal of minimizing long-dis-tance state interference, the kind of minimal control that we glimpsed


above in the kind of government attainable by the junzi (see “Xing zi mingchu,” strips 51–52).69

Another Guodian text that may reveal something of the contemporarysense of the importance of fair adjudication focuses on fixed lists of ab-stract virtues. This essay, “Liu de,” or “The Six Virtues,” divides the func-tions of government into the three areas of control, social harmony andeconomics as follows:

In performing Rites and Music,

In ordaining Punishments and Laws,

In teaching these to the People and causing them to be oriented to

them:

Unless Sagely and Wise, none can succeed.

In arousing Family Feeling between father and son,

In harmonizing the great ministers,

In pacifying the [?] among the four neighbors:

Unless Benevolent and Righteous, none can succeed.

In bringing the People together,

In entrusting (granting) his lands,

In making these sufficient to sustain the People’s needs, in life and

death:

Unless Loyal and Faithful, none can succeed.

[Strips 2–5]

This essay portrays Punishments and Laws as part of an inevitably “top-down” function of government: to be ordained by the Ruler. The “Liu de”ideal of government requires the ruler to embody the six named virtues inorder to succeed; while there is a place in this ideal for both xing and fa,coercive and top-down modes of social control, their effectiveness de-pends on the ruler’s personal virtue. Equally important, the gathering andsettling of the population (ju renmin), and the division and allocation ofstate lands (ren tudi), require the Ruler to practice the “rule of law” virtuesof zhong and xin as they appear in the “Zhong xin zhi dao.” These two, asduties of a ruler toward the people, rather than of the people toward theRuler, imply a degree of limitation on economic exploitation and arbi-trary use of power unfamiliar in the usual portrayal of Early Chinesestates.

In another passage, the “Liu de” uses the six virtues in a quite differentway, to characterize social roles applicable to everyone in the ideal society:


Righteousness is the virtue of the Lord;

Loyalty is the virtue of the Minister;

Wisdom is the virtue of the Husband;

Good Faith is the virtue of the Wife;

Sageliness is the virtue of the Father;

Benevolence is the virtue of the Son.

Therefore: the Husband acting as Husband,

The Wife, as Wife,

The Father, as Father,

The Son, as Son,

The Lord, as Lord,

The Minister, as Minister:

These six each enacting his/her role: [disorder/Disputes] will have

nowhere from whence to spring.

[Strips 23–24]

In these passages, social control is again to be achieved, not by mandate,but by each individual’s perfect performance of his or her role. The char-acters translated here as “disorder” and used to represent the bad conse-quences of individuals’ failing to fulfill their social roles, are unfamiliar.The editors of the Wenwu Guodian do not offer an explanation, but Pro-fessor Chen Wei has suggested the readings given above. The first charac-ter of the pair occurs three times in a different binome on strips 42–44. Ifwe follow Qiu Xigui’s understanding of the first graph, as a Chu regionalvariant of the verb duan, to judge or adjudicate, the binome can be takento stand for the adjudication of disorder:

Filial Piety (xiao) is the root:

When those below can cultivate this root,

One may control evil.

The flourishing of the People requires

Husband and Wife, Father and Son, Lord and Subject.

Only when the junzi makes these six clear

Can disorder be adjudicated. . . .

[Strips 41–43]

We can follow the use of duan further in the Guodian miscellany to whichthe editors give the title of “Yucong No. 2,” a reader of short, easily memo-rized aphorisms, most written in four-character phrases, two to a strip.


Strips 1–9, 10–12 and 20–37 consist of causal chains in the form: “B growsout of A; C grows out of B”; in which A, the starting point, is always xing,Nature. Strips 13–19 are similar in form, but use yu, Desire, as the startingpoint.70 The causal chain tracing the development of human qualities andemotions, favorable and unfavorable, to their source in the Nature in-cludes the following group of strips:

Strength is born from the Nature;

A Firm Stance arises from Strength;

Judgment is based on that Stance.

Weakness is born from the Nature;

Doubt arises from Weakness;

Defeat is rooted in Doubt.

[Strips 35–37]

The decisive quality that allows a judge to make correct judgments isrooted in the Nature, just as is the uncertainty that leads to impasse anddefeat; the difference lies not in the Nature itself, but in its proper cultiva-tion in light of the enlightening teaching and personal example of theruler. These chap-book statements support a decentralized ethic of adjudi-cation, under which the resolution of disputes and control of evil dependon the personal qualities of the individual judge, upon his properly culti-vated Nature. No mention is made of the judge’s duty to apply centrallypromulgated rules and laws.

The graph read by Qiu Xigui as duan, “to judge,” in the essay “The SixVirtues” appears several times in the Baoshan archive. Apart from “TheCase of the Murdered Brother,” noted above, the plaintiff in the “Case ofthe Kidnapped Laborers” complains that his suit for return of his laborers,referred by the king to the zuoyin, and by the zuoyin to a “chief interroga-tor” (xunyin) for resolution, was “not decided in [my] favor” (bu wei puduan). [Strips 15–17] A key document in Shao Tuo’s grave archive recordsthe accusation made by Cai Yang, a person of commoner status (ren),against three officials (a tai zai, general manager or feudal “chancellor,” ayou sikou zheng or “right assistant prefect in charge of prison guards” anda zheng or “prefect”). The action complained of was “judging illegally inmy brother Cai Xiang’s case (wei qi xiong Cai Xiang duan bu fa).”71 Giventhe absence of any mention of specific statutes in the Baoshan archive, onepuzzle here is the meaning of the phrase bufa. Grammatically distinctfrom the ordinary phrase meaning in breach of a particular law (fanfa),perhaps bufa here means simply unjust: contrary to a broader model or


standard of justice. It seems undeniable, however, that the Chu state val-ued justice in the resolution of legal cases to the extent that low-rankingprivate individuals like Cai had the right to sue apparently high-rankingofficers to overturn improper verdicts.

D. Access to Transcendent Authority and Legitimacy of the State

An important element of the legal philosophy deduced from the Guodiantexts is their assertion that the Nature of each individual human is or-dained by Heaven: “The Nature derives from the Mandate; the Mandate issent down by Heaven” (supra, Section 5.A). This idea is not just a state-ment about the genetic origins of human Nature, but an assertion thateach human being can, and indeed must, make an ongoing effort to lookwithin to discover and conform to Heaven’s Mandate. Certain passages inthe “Chengzhi wenzhi” essay present the obligation to “look within” as theroot of the Ruler’s sense of solidarity with the People:

If the one in authority does not follow his Way,

It will be difficult for the People to follow it.

It is for this reason [that we say]

The People may be led by Respect, but may not be repressed/coerced;

They may be directed, but may not be dragged along.

Therefore the junzi does not value luxuries,

But instead his Solidarity with the People (yu min you tong).

[Strips 15–17]

Reciprocity is the key to a sympathetic relationship between the Ruler andthe People:

If he is rich, but divides [and shares] his wealth,

The People will want his wealth to increase.

If he has high rank, but is able to yield/entrust [share power with the

worthy],

The People will wish to further elevate him.

If he returns to this Way,

The People will respond to him in proportion to his generosity/sin-

cerity.

Can he fail to carefully consider this?

Let him turn his inquiry within,


And he will be able to know others.

[Strips 17–20]

This seems like a common-sense rule of human interaction, but the essaygoes deeper to assert that the method works because the grundnorm, theoverriding Principle sent down by Heaven, is located in the human heart(strips 37–38, translated above, Section 5.A). Each human therefore has aninternal channel to the divine in the Nature received from Heaven. TheGuodian stricture that humans must “seek within” to understand otherssuggests immanence, in that the source of norms for these thinkers lieswithin, not outside, the human world. [David] Hall and [Roger] Ameshave argued that Early Chinese thought was essentially immanent, that itlacked the idea of radical transcendence and that Western readings of Chi-nese texts are too often infected with Western transcendental assump-tions.72 However, iterations of both Christianity and Islam include similarinner “channels” to the divine: autonomous routes for communicationwith the divine through prayer or meditation, furnishing access to the ulti-mate authority no matter what the condition of the church and the ulama.

Part of the Hall and Ames argument is that the concept of tian, trans-lated above as Heaven, in no way resembles the personalized gods of Eu-rope and the Middle East. Strip 31 of the “Chengzhi wenzhi” essay (trans-lated above in Section 5.B) credits Heaven—here apparently not just apart of the natural world, but an entity outside of (e.g., above) the humanworld, an entity that acts with purpose in human affairs—with sendingdown (jiang) Principle to teach humans the norms of behavior. The sec-tion begun with this assertion on strip 31 concludes on strips 38–40 by ex-plicating a passage from the “Kanggao.”73 The passage has been influentialin the evolution of Chinese jurisprudence, for it makes a clear-cut distinc-tion between the laws inherited from the Yin dynasty, governing such or-dinary criminal matters as theft and murder, and the norms imported bythe Zhou, governing human relationships. The “Chengzhi wenzhi” inter-prets its version of the passage as follows:

What does it mean when the “Kanggao” says:

“For those who do not return to the Great Norm

King Wen made Punishments,

That these be mutilated without pardon.”

This means: for those who do not [huo, hasten to conform to] the

Great Principle


King Wen’s Mutilating Punishments are the most severe.

[Strips 38–39]

Citation of this text despite the arguments against coercion in the rest ofthe essay suggests that coercive punishment was thought to be legitimatewhen used to enforce laws with a divine source: the rules defining the cor-rect relationships between Father and Son, Ruler and Subject, Husbandand Wife. The pale reflection of this idea in the jurisprudence of imperialChina was to allow relational factors to modulate the draconian tariff ofpunishments otherwise prescribed by law.

The essay named “The Way of Tang and Yu” (Tang, Yu zhi dao) by theWenwu editors deals with rules of succession and the legitimacy of thestate. In an age of dynastic rules of succession, which emphasized the pa-triline as the vehicle of legitimacy, and in an age where, as we have seen,the norms of relationships trumped other rules, the decision to entrust therulership on the basis of worth rather than blood relationship presented aclear-cut conflict in moral obligations:

The Way of Yao and Shun

Was to Retire and not Bequeath [power to descendants].

Yao and Shun, in their conduct,

Loved their relations

And honored the worthy.

They loved their relations, and so [obeyed] Filial Piety;

They honored the worthy, and so retired74 [in their favor]

The [true] method of Filial Piety: to love the People of the world;

The [?] of Retiring: the age does not suffer from Virtue concealed.

Filial love is the crown of Benevolence;

Retirement, the acme of Righteousness.

[Strip 1]

[Strips 6–7]

This conflict is explored through the lives of the Sage kings Yao and Shun.Yao, born of a king, measured up to his royal fate in personal virtue, so hislegitimacy was recognized by the spirit world:

The (spirit luminaries, shenming) all followed him;

And Heaven and Earth assisted him.

[Strip 15]


Yao, in turn, measured Shun, a product of the “grass huts” on the lowestedges of society, against the standards of personal morality that were partof the Great Principle discussed above:

He heard of Shun’s Filial Piety,

And knew that he would be able to nurture the world’s aged;

He heard of Shun’s Fraternal Love,

And knew that he would be able to serve the world’s elders.

He heard of Shun’s kindness to his younger brothers,

[ ] the Lord of the People.

[Strips 22–23]

The essay, as arranged, ends with a warning of the consequences of failingto entrust the realm to a sage:

The “Ode of Yu” says:

“The Great Illumination fails;

The Ten Thousand Things all cry out. . . .”

[Strip 27]

The failure of ming, the sacred blessing of human rulership, correspondsto a loss of legitimacy: the lack of a Sage at the helm thus ends in the with-drawal of legitimacy by the numinous powers.

The puzzle of assigning blame for the state’s descent into chaos in badtimes, and the problem of how the moral person should act in such times,are the topics of the essay given the title of “Qiong da yi shi,” or “Miseryand Success Depend on the Age.” It is in this piece that one can sense adoubt in the justice, in the responsiveness of the spirits to human behav-ior. One list of heroic figures includes those who began as peasant, potter,convict laborer, military conscript, butcher, manacled prisoner and slaveand rose to prominence because of their recognition by the eminent. An-other list includes humans and things lost to history because their virtuewas never recognized.

The assertion of an unbridgeable divide between Heaven and humanscasts doubt on the very project of the state, as well as the optimistic beliefnoted above in the capacity of the individual to achieve perfection:

There is Heaven and there is Humanity;

Between Heaven and Humanity there is a divide.

Only if one investigates the divide between Heaven and Humanity,

Can one know how to act.


If there is one with the Human [raw material],

Who lacks the Age;

Even though Worthy, he cannot Act.

If he has the Age,

What difficulty can there be?

[Strips 1–2]

It is in this essay that we can glimpse something of the contemporary tur-bulence in religious beliefs; the violent unpredictability of life in the War-ring States presented a challenge to the confident theory of human Natureand its perfection, as sketched above, as well as the magical efficacy of per-sonal example.

However, the evidence from Baoshan indicates that Chu medicine andlaw were still based firmly on a belief in access to responsive spirits. Strips197–249 from Shao Tuo’s grave constitute records of inquiries he put tothe spirits about his fortune in the months ahead, his career at court andhis worsening health. In some ways, the form of these records resemblesthat of the Shang oracle inscriptions. First, a “preface” records the date, thediviner’s name, the name of Shao Tuo, the “client” for whom the divina-tion was performed and the instrument used (probably either plant stalksfor manipulation as in milfoil divination, or shell or bone for pyromancy).Second, a “charge” records the period covered and the topic of the inquiry.Third a “prognostication” records the results, often a mix of long-termgood fortune and short-term difficulties. Fourth, a “secondary preface”records the performance of curative rituals responding to the short-termproblem by exorcism of unfriendly spirits or prayers and sacrifices to an-cestors or other spirits likely to be friendly. Fifth, a “secondary prognosti-cation” records the results of the curative rituals. The back and forth na-ture of these divinations is testimony to the immediacy and intimacy ofthis form of communication with the spirits, as well as to the contempo-rary belief that illness was a problem in human relations with spirits, goodand bad, rather than a problem focused on processes or balances of forceswithin the patient’s body.

Just as discourse with the spirits was thought to be the answer to sick-ness, so resort to spiritual enforcement seems to have been used to ensurethe justice and accuracy of judicial investigations. The institution used forthis purpose was the blood oath, or meng. The background of this institu-tion, somewhat ignored by the scholarly world both inside and out ofChina, can be traced back as far as the Western Zhou. Actual examples of


tablets used to record meng have recently been discovered in North China;these finds illustrate the nature of the ritual of blood oath about two cen-turies before the lifetime of our legal official, Shao Tuo.

In 1965, archaeologists at Houma in Shaanxi Province investigating thesite of the capital of the important Spring and Autumn state of Jin found,in the eastern suburbs of the city, a field of square ritual pits, laid out inrows. Archaeologists found over 400 pits in the ritual field, 43 of whichyielded more than 5,000 tablets of jade and stone, most inscribed with redink, as if symbolizing blood; the remaining pits contained only sacrificialofferings of uninscribed jades and/or animal victims. The covenant sitehad apparently been in use over a period of years, for the excavators cameupon several instances where later pits cut into earlier ones. In addition,when the field was abandoned, at least for this purpose, several empty pitshad been prepared for use but apparently never used: the authorities incharge of covenants here had evidently anticipated an on-going need forwhat must have been a routine procedure.

It is useful to think of each pit as a single ritual event. In most cases, theformulas on the tablets found in any particular pit are the same; only thename of the individual covenant participant, inscribed at the top of eachtablet, changes. Let’s consider a few aspects of the simplest formula on thetablets found in Houma:

[If I], Hu,

Dare to fail to split open my heart and vitals in serving my lord; or

Dare to fail to thoroughly adhere to Your covenant, and the mandate

granted in Ding gong and Ping si; or

Dare in any way to join in agreeing to break the faith, thus causing

an interruption in the care of the two temples; or

Dare to have any ambition of restoring (the enemy) Zhao Ni and his

descendants to the territory of the state of Jin, or joining in fac-

tions to summon [them] to a covenant;

May our former rulers, all-seeing, instantly detect me; and

May ruin befall my lineage.75

By its very nature, an oath like this imports the authority of the spirits toenforce the obligations contained in it. Apart from the words written onthe tablet, we see the effort to communicate with ancestors and gods bythe placement of the tablet in a pit, cut down from the human world intothe earth—a world inhabited by the spirits of the dead—together with theanimal victim and a bi offering of ritual jade artifacts, currency of the


spirit world.76 The concept of the earth as one of the abodes of the spiritsis echoed in the funerary rites used for Shao Tuo, and lasted well past theHan, when individuals were occasionally buried together with a “gravepassport” announcing their arrival and status to the local official of theunderworld.77

The personal name at the top of each tablet ensured that the spiritswould be able to “pin the blame” for breach on the covenanting individ-ual. Given the nature of the sanction spelled out in the imprecation, thatis, the destruction of the faithless covenantor’s lineage, each undertakinghad to be separate. An important, and before this find, unexpected aspectof covenant is its emphasis on the individual and his name. While the con-sequences of breach reached the kinship group, it was the individualwhose legal action was needed to make the oath binding: law in this con-text recognized only individuals. Of course, while the names at the top ofeach tablet let the spirits know who to hold responsible, they would alsohave been helpful to the power-building lord of the covenant, who proba-bly kept a copy of all the tablets from each event in his archives. In futurequestions of breach, his clerks would have a much easier time finding theoath binding a particular covenantor.

The visceral nature of the loyalty clause78 lies in the use of the wordban: (a word originating in the world of butchery and sacrifice, accordingto the Shuowen dictionary),79 implying that the spirits could “read” theoath-taker’s sincerity from his entrails, reminiscent of the way the harus-pices of Ancient Rome could “read” the future in the entrails of their quitedifferent sacrifices. The spirits chosen, in all the Houma covenant tablets,to supervise compliance with the oath, are yujun, literally “Our Lords”: thespirits of Jin’s former rulers. We now know that their personal gateway tothe afterworld was located on the same side of Xintian, 25 kilometers awayin the foothills northeast of the covenant site: vantage point for their roleof scrutiny. Use of the term mingji in the scrutiny clause, literally “sacredly,instantly,” suggests super-human spiritual efficacy in detection and pun-ishment of breach. Ji may also have the authoritative overtones of the termheng, used interchangeably with ji in the philosophical texts from Guodianto mean “constancy” or “moral predictability.” It is possible that this laterphilosophical usage reflects the term’s original role in covenant discourseabout the spirits and their ability to instantly know and instantly punishthe wrongs committed by human beings. Another example, perhaps, ofhow terms migrated from the world of blood, religion, ritual and oathinto a pallid realm of secular ethical philosophy. From the contents and


circumstances of these finds, it is hard to deny that an entity outside of theworld of living humans was being asked to oversee and enforce the humanobligations undertaken in blood oaths.

In Shao Tuo’s archive, we find references to meng oaths functioning, notas a part of political power building, as in the Spring and Autumn tabletsfrom Jin, but as judicial oaths, used to resolve disputed points of evidence:two such examples are translated below. In addition, the records of divina-tions and rites that Shao Tuo had performed for him in the last years ofhis life include exorcism of the miserable sprite called the mengzu, perhapsthe ghost of a person “accursed” for breaching his oath. In consideringhow meng oaths worked in the adjudication of cases, we see that here, asin the earlier excavated covenants, both the individual and his group wereessential to the institution. Rather than individual witnesses swearing tothe truth of their individual testimony, we see the parties to disputes as-sembling friends and allies in large groups to swear to the accuracy of thetestimony on each side.

The first case is the record of an accusation of murder in the area of thecapital of the old state of Cai, on the north bank of the Huai River:

On day yimao (#52) in the sixth month of 319 b.c.,80 Xu Wei, a resident of

Tao quarter in Xia Cai, lodged this accusation with Yang Shi, the prefect of

Yangcheng, who [held the position of] delegate in charge (zhishiren) of ill-

omened events in Xia Cai. Wei said: “Fu Quan was grazing, stealing horses

in Xia Cai and selling them in Yang Cheng. He may have killed Xu Shi, a res-

ident of Xia Cai. I, the little one, [was] ordered to prepare a warrant to

transfer [the accused]. Yang Shi, the prefect of Yangcheng, ordered the local

constable to detain him in jail (ming tingfu jiegou) and I transferred him

here under arrest.” [Strip 120]

On day dingji (#54) in the sixth month (two days later), Fu Quan, a resident

of Shanyang quarter in Xia Cai, spoke [testified] before Yang Shi, the prefect

of Yangcheng (and three other named individuals). Quan said: “I, the little

one, was not personally (buxin) stealing horses. In truth, I assert that, to-

gether with (Jing Buke, of Yi quarter, and two other named persons) I con-

spired to kill Xu Shi in Jing Buke’s place, and then cast his body out on the

road. . . .”81 [Strip 121]

The case file then recounts the process of dispatching a warrant for the ar-rests of the perpetrators. Each warrant was returned by the local official incharge of the fugitives’ towns of residence saying “The warrant could not


be served on X, as he had fled before it arrived here.” Fu Quan’s nu, orfamily members, were also sought for arrest, either as guarantors or wit-nesses, but they, too, fled before they could be arrested. The case reportcontinues:

Before Fu Quan’s case could be brought to judgment, he fell sick, and

died in prison.

[Note added at the end of the strip]: Jing Buke and the other two

conspirators (here listed by name) were all put to the oath (jie ji

meng). [Strip 123]

The reason for the resort to oath in this case must be that the evidenceagainst the co-conspirators depended on the testimony of Fu Quan, who,because of his death in custody, could no longer be questioned in detail.Although this case hangs on an initial confession, always suspicious in theeyes of a defense lawyer, there is no mention of torture. The system seemsto have sought certitude instead through the use of oath. The case alsoshows how thin the king’s system of justice was on the ground level, par-ticularly in places as far from the capital as Xia Cai (more than 500 kilo-meters to the northeast of Ying, across the Han and Huai Rivers), for thearrest warrants failed to secure the persons of all the accused co-conspira-tors as well as the chief defendant’s family.

Covenant also figured in the file documents on another complex mur-der case, this time from Yin, in the western part of the huge state. In thiscase, the question of conflicting duties when testifying at law seems tohave taken center stage. The legal authorities’ decision on who could andwho could not testify seems to reflect their assumptions about how hu-mans might resolve conflicts between their duty to the state, to testifytruthfully in a legal proceeding, and their duty of loyalty to neighbors, col-leagues and family. A somewhat free translation of this case is includedhere in extenso, not only because of its use of oath, but also because it il-lustrates appeal and warrant procedure in one of Chu’s large administra-tive districts.

Professor Chen Wei has succeeded in clarifying the procedure in thiscase, “The Case of the Murdered Brother,” by reordering and dividing thestrips in the document file [strips 131–139] into three groups or bundles,referred to here as A, B and C.82 These bundles represent three differentcommunications between Shao Tuo’s central office of judicial administra-tion, in Chu’s capital city, Ying, and Yin, a xian, or administrative district200+ kilometers up the Han River from Ying.83 In Chen’s rearrangement,


each bundle of strips represents a legal document generated at a differentstage in the case. They are presented here in abbreviated form:

A. The plaintiff ’s appeal to the capital for redress from local failure to solve

his older brother’s murder. [Strips 132, 133, 134, 135]

Shu Qingtan, a subordinate of the dowager of Qin Jing84 and resident of the

Yinhou East Qiong quarter, dares to report to the King as follows: “On day

guisi (cycle day 30) in the fourth month of 318 b.c., Ke Mao and Xuan Mao,

both of Yin, conspired to murder your servant’s older brother, Ren. Your

servant formally reported this crime to Zi Wei Gong, whereupon Zi Wei

Gong commanded the right marshal of Wei, Peng Shi, to make your servant

a contract-warrant85 (quandeng) to order the Yin “enforcer”86 (qinke), Baiyi-

jun (“Prince of a Hundred Virtues”)87 of the Yinhou’s Qingkao district, to

arrest the perpetrators. Thus Ke Mao was captured, but Xuan Mao commit-

ted suicide. The enforcer Baiyijun then reported back to Zi Wei Gong as fol-

lows; ‘I captured Ke Mao, but Xuan Mao killed himself.’ Zi Wei Gong re-

ferred the matter back to the Yin enforcer, that he might come to a resolu-

tion (si duan zhi).88 Now, the Yin enforcer has not decided in my favor, but

has instead seized my older brother, Cheng, while Guo, the prefect of Yin,

has also detained my father, Zhou. Ke Mao and Xuan Mao did indeed con-

spire to kill my brother Ren: the Yin residents Chen Huo, Chen Dan, Chen

Yue, Chen Yi, Chen Chong and Lian Li all know that the [two] killed him

(jie zhi qi sha zhi). Your servant does not dare to fail to report this to Your

Majesty.”

The word jie, translated “formally,” is a legal term of art that appears notonly in the fourth century cases from Baoshan but also in the late thirdcentury legal and divinatory materials from Shuihudi and the early sec-ond century book of cases from Zhangjiashan. In this case, the word isused to characterize Shu Qing’s initial accusation: perhaps raising the de-gree of urgency or solemnity of the complaint. As Don Harper noted in1985, there is an interesting overlap between the word’s use in legal jargonand its use in controlling spirits and demons.89 It seems very likely that infourth century Chu, formal accusations of crimes fulfilled an exorcisticfunction as well as what we might think of as a secularly legal one; in-deed, in Shu Qing’s case, he had to not only punish the murderers butalso avenge the spirit of his murdered older brother. The rule enunciatedin the Liji (which may have already been in wide circulation in this partof China, given the inclusion of the “Ziyi” chapter among the Guodian


texts) required revenge in most cases of the murder of senior familymembers:

One should not live under the same Heaven as the enemy who has slain

one’s father.90

Zixia asked Confucius, saying “How should [a man] conduct himself with

reference to the man who has killed his father or mother?” The Master said,

“He should sleep on straw, with his shield for a pillow; he should not take

office; he must be determined not to live with the slayer under the same

Heaven.”91

This case and others in the Baoshan find suggest that revenge may havebeen common, if not the rule, in Chu society at the time.

Two supplementary comments were written on the back of this bundleof four strips. These comments notify Tang Gong, an official in the Chucapital, that the king has made him responsible for solving the matter, andbring him up-to-date on further developments in the case:

A. (verso) The zuoyin notifies Tang Gong that he is to take responsibility for

the case and sets a date by which he is to report back to Ying.

The zuoyin (Shao Tuo) forwards the King’s command to Tang Gong as fol-

lows: “Shu Qing has submitted an accusation saying ‘Ke Mao and Xuan Mao

killed his older brother Ren; the Yin enforcer captured [Ke] Mao, but

[Xuan] Mao killed himself. The Yin enforcer then arrested your servant

[Shu]’s older brother, Cheng, and has failed for a long time to render judg-

ment (er jiu bu wei duan).’ His Majesty has commanded that all this be

brought to judgment (jun ming jian wei zhi duan). It is commanded that by

the seventh month an official in charge of the matter (zhishiren) report back

(zhiming) to Ying.” [The back of strip 135]

In 317 b.c.,92 the sixth month, on day jiawu (cycle day 31), the Zhui Super-

visor [Zuo Ma]93 came from Ying with this warrant (deng). [The back of

strip 132].

As Chen points out, once the bundle was flipped over, the notations of thezuoyin and the messenger Zuo Ma would appear on the backs of strips 132and 135 in the correct order. In his original appeal, Shu Qing noted thathe had secured a “contract-warrant” (quandeng) from the local law en-forcement authorities to arrest his brother’s murderers; Zuo Ma here de-scribes the entire bundle, containing the original appeal on the front and


the zuoyin’s referral of the king’s command to Tang Gong, together with adeadline for disposing of the matter on the back, as a “warrant.” TheShuowen jiezi first defines the graph deng as merely a bundle of bamboostrips, or, by extension, things listed on such a book, but goes on to addthe sense of “justice evenly administered in a court.”94 Xu and Duan’s ex-planations reveal important Han and Qing assumptions about the role ofcourts in providing equal justice. However, in Chu usage, deng seems tomean specifically a document having legal force, representing the delega-tion of the state’s power to interrogate, arrest and try. For the centralizingstates of the Warring States period, writing represented a vital way of ex-tending precise control beyond the immediate reach of the ruler and thecourt. In this kind of document process, state control is consolidated moreby procedural forms than by substantive law; in fact, we see nothing ofwritten substantive laws in the Baoshan materials.

The next group of strips, 20 days later and thus well within the speci-fied deadline, relates the local authorities’ consideration of the chargesagainst all the parties to the case, in light of the surprising developmentthat the enforcer’s efforts to capture the defendants had resulted in thedeath of one, and ultimately in the submission of charges, or counter-claims, by his family against the original plaintiffs. Confronted with astark discrepancy between the parties’ statements, the Yin officer in chargeof dealing with the case made the witnesses on the defendants’ side givetheir testimony under oath:

B. The Ying legal officer, Mou Han, reports to Tang Gong within the dead-

line on the result of his hearings in the case.

In the seventh month of 317 b.c., on day guichou (cycle day 50), Mou

Han,95 a legal officer (sibai)96 of Yin, reported to Tang Gong Jing Jun as fol-

lows: “The responsible official in charge of this matter referred the legal case

of the Yin residents Xuan [Wei],97 Ke Mao, Shu Zhou, Shu Cheng and Shu

Qing to the prefect of Yin; with the injunction that he be caused to adjudi-

cate98 it. Both Zhou and Cheng testified as follows: ‘Ke Mao and Xuan Mao

conspired to kill Shu Ren. We little ones (xiaoren) and Qing did not person-

ally kill Xuan Mao (bu xin sha Xuan Mao); Mao killed himself.’ Xuan Wei

and Ke Mao both testified as follows: ‘Shu Qing, Shu Cheng and Shu Zhou

killed Xuan Mao; Qing then absconded.’ In the fifth month, on day guihai

(cycle day 60), the responsible official in charge of the case made them take

the blood oath (wei zhi meng). In all, 211 people took the oath and all test-

fied as follows (ji meng, jie yan yue,): ‘In light of what we know and have


heard, after personally checking (xin dui wen zhi), Zhou and Cheng partici-

pated with Shu Qing in his killing of Xuan Mao.’ They all further testified:

‘In light of what we know and have heard, after checking (dui wen zhi),

Xuan Mao did not kill Shu Ren.’ Shu Cheng was arrested, but not yet adju-

dicated, when he bored a hole in the prison wall and absconded.”

Like Fu Quan’s statement in the previous case, the parties giving testimonyunder oath recorded on strips 136 and 137 emphasized that their testi-mony was based on personal observation and investigation.

B. (verso). Tang Gong summarizes progress in the case for the zuoyin to re-

port to the king.

Hereby reporting back to his Excellency the zuoyin. “Your servant [Tang

Gong Jing] Jun, reporting as follows: The King referred the matter of Shu

Qing’s accusation to me; commanding me to adjudicate everything. After

the prefect of Yin made the parties testify under oath, Qing absconded, and

Cheng bored his way out of prison. The remaining parties are under arrest

and will be adjudicated immediately (jiang zhi shi er duan zhi). His Majesty

commanded that a responsible official in charge bring the matter of this

long-standing case to justice (yi xing gu yu shang heng). I rely on this [his

command] to submit this report.” [Strips 136, 137, verso]

Group B thus contains the report by the Prefect of Yin back to Tang Gongin the capital of proceedings in Yin, where the parties on both sides weremade to testify under oath, after which both Shu Qing, the original plain-tiff, and his older brother absconded. It has become clear, in this group ofstrips, that the case came to involve a sizable number of people; indeed,the central authorities may be especially anxious to resolve it to avoid thekind of long-running feud characteristic in societies requiring blood re-venge.

The last bundle of slips in this case file consists of two strips bearingsomething like a subpoena: a demand for the testimony on behalf of theprisoner Shu Cheng. It consists in great part of the list of the witnesses’names:

C. Names and ranks of Shu Cheng’s witnesses [Strips 138, 139]

The witnesses ordered to testify [on behalf of] the Yin resident Shu Cheng:

Yin leading people and nobles Chen Dan, Chen Long, Chen Wuzheng,

Chen Yu, together with the Enforcer Baiyijun, Ambassador Lian Zhong, Left

Supervisor of the Pass Huang Ti, the Cai Huo, Ping Ni Gong Cai Mao, the


Great She Supervisor Lian Qie, the Great Dou Supervisor Gong Xi, together

with [colleagues from his office], in all 30.

C. (verso) A notation by the zuoyin, on the back of the witness list, passing

down the king’s order that Shu Cheng himself also be made to testify under

oath

The zuoyin, in accordance with the King’s command, conveys to Zi Wei

Gong the order that the legal scribes of Xin shang (zhi shi yu) cause Shu

Cheng to be put to the oath; such command being inscribed on these

tablets, that he may be made to testify.

C. (verso) Another note on the back of the list, this time laying out applic-

able testimonial rules.

Cause Cheng[‘s witnesses] to come in order of rank to the place where he is

testifying. As they come, [be aware that] there are [some] who cannot give

testimony: Those who belong to the same temple group (tong she),99 those

who live in the same quarter (tong li) and those who work in the same offi-

cial bureau (tong guan) may not give testimony. Relatives as close or closer

than paternal cousins may not testify.

In these rules we can glimpse the Chu state’s efforts to take the problem ofconflicting duties into account; the resolution seems to have been to sim-ply prohibit parties from calling witnesses to testify for them from withincertain interest groups: religious, residential, bureaucratic and familial.Many readers may find themselves thinking of Shegong, one of the morefamous villains in the Lunyu, who boasted:

In my district, there is Upright Gong. When his father stole a sheep, he bore

witness against him (zhengzhi).100

Confucius’ reply is suitably dismissive of this claim:

Where I live, the upright differ from your example. Fathers shield sons, and

sons shield fathers: rectitude consists in this.

Some scholars speculate that She was a xian, or administrative district,founded by King Ling of Chu in the last half of the sixth century b.c. inthe region of the old Zhou state of She.101 As the Baoshan legal documentsshow, the heads of the more important xian on Chu’s northern borderswere called gong; the Shegong in this passage was probably a local admin-istrator rather than a feudal lord. While the Lunyu passage, using the same


terminology for testimony as we have seen in our murder case (zheng), ac-cuses the Chu system of deliberately undermining family feeling, the nota-tion on the back of strip 138 suggests that the rules of evidence in Chu in-stead were careful to avoid such conflicts of interest. From the point ofview of testimonial reliability, it would in fact make sense to disallow theevidence of persons who would be within the scope of collective responsi-bility, either under the imprecation that sealed the evidentiary oath orunder rules of household responsibility.102

For those who are murder-mystery aficionados, this, unfortunately, iswhere the document file in the “Case of the Murdered Brother” ends. Per-haps because Shao Tuo’s death of a lingering illness came only the nextyear, his personal archive does not tell us what happened or who pre-vailed. The documents we have do show us, however, the time and effortthe Chu state invested in fact discovery; its evidentiary reliance on oathssanctioned by the spirits, rather than torture; and its strict compliancewith deadlines for official action, perhaps to make the process more pre-dictable in spite of the great distances involved.

VI. Conclusion

The Baoshan evidence suggests that, contrary to historical portraits ofChu political culture as peculiarly authoritarian, the sprawling state wasunified less by top-down mandates than by enforcement of proceduralrules of royal justice. This focus on procedure may have helped keep the“king’s peace” in Chu’s disparate conquered territories by furnishing aforum for fair resolution of disputes between her powerful noble lineages.

The Baoshan cases also reveal the state’s interest in resolving conflictingevidence in legal proceedings by reliance on testimonial oaths (meng).103

On one hand, these oaths show that an appeal to transcendent authoritywas the foundation for justice in legal proceedings, a royal justice thathelped legitimate the king’s power. On the other hand, rules specified forthese oaths suggest that judicial procedure was evolving from a system ofsimple compurgation to a system that attempted to guarantee the impar-tiality of the witnesses assembled by disallowing those who belonged tothe parties’ immediate family, office or residential unit. Under the rules re-ferred to in the “Case of the Murdered Brother,” we see that neutrality,rather than the parties’ political skill in assembling the largest crowd ofsupporting witnesses, was to be the criterion for admissible testimony.


Scholars have wondered in the past whether there was any phenomenonin Chinese legal history comparable to the “jury of one’s peers,” developedin English law. It is possible that the crowds of witnesses willing to take ablood oath on the parties’ behalf in these Chu cases performed a similarfunction.

Among other devices of decentralized control, Chu developed a systemof formal written warrants to delegate the performance of key judicialtasks (such as the pursuit and arrest of accused criminals and the issuanceof subpoenas to potential witnesses) to local nobles or their armed retain-ers, rather than relying only on appointed officials of the central govern-ment.104 In addition, unlike later imperial law, under which the state’s mo-nopoly on law enforcement could make it a crime to settle a criminal suitout of court, notations on some accusations reveal that suits could beended by conciliation and mutual consent.105 Finally, while the Chu sys-tem of judicial appeals was topped by the king himself, these cases showthat his judgments and orders, far from being dispositive, could be repeat-edly contested by the parties below, to the extent that he himself may havefunctioned more as a mediator than a final adjudicator.106 The bambooevidence thus tends to confirm historical suggestions that Chu differedfrom other states in maintaining a durable balance between a relativelyweak king and powerful noble lineages, unlike the state of Jin, for exam-ple, where rebellion by the top lineages led quickly to overthrow of theirruler and division of the realm into three autonomous successor states.

Finally, the Baoshan strips are rich in evidence of the great diversity ofcultures and customs in Chu and in glimpses of how the state “managed”this plural society. On one hand, the ruling lineages of many of the con-quered regions seem to have been allowed to survive and prosper. The mixof indirect “feudal” control and direct administration through centrally-appointed officials allowed some regions to keep their familiar institutionsand families. Perhaps it was this social and political circumstance thatmade it necessary for royal judicial power to be exercised in some casesthrough delegates chosen from the local nobility, rather than sea-green in-corruptibles loyal to the king and sent in from outside. On the other hand,while the case materials from Baoshan give us a glimpse of a great varietyof disputes between individuals and lineages over offenses from trespassand assault to kidnapping, murder and banditry, the state judicial systemseems to have offered a well-oiled mechanism for resolving the disputes ina timely fashion. The combination of apparently easy access to forums fordispute resolution and open appeals suggests how it was possible to


achieve a measure of social peace in a diverse society of Early China with-out resorting to Qin’s unitary state and fierce methods of top-down socialcontrol.

The modern political importance of work on China’s legal history can-not be over-stated; a clear picture of Chinese traditions of law offers abase-line for the current blizzard of legal reforms, most based on modelsimported from outside. Even more important than the history of legal de-velopment in China’s long imperial period, however, are these new archae-ological insights into the legal theories and practices of her “axial age,” thehalf millennium preceding Qin’s creation of the first empire in 221 b.c.Focus on this period reminds us of its rich diversity of thought and mate-rial culture, a fertile and pluralistic tradition that can help liberate the the-orists of today from the limiting ideologies of empire: fear of chaos, sup-pression of regional and individual difference and reliance on harsh top-down control mechanisms. To take her proper place as a modern power, totake advantage of less centralized forms of political control that can freeher huge reservoirs of human talent for the project of building a neweconomy, China now needs this kind of liberation.

n o t e s

This chapter developed from a paper given at the “International Scholarly Confer-ence on the Chu Slips from Guodian” (held in Wuhan, October 1999) and pub-lished in the Conference Report (Hubei Renmin chubanshe: Wuhan, 2000),406–422.

1. The strips found at Guodian were first published in May, 1998 (Jingmenshibowuguan, Guodian Chumu zhujian (Wenwu chubanshe: Beijing, 1998). The vol-ume was welcomed into the academic world by a conference, convened by SarahAllan at Dartmouth College, including specialists from China, Japan, Europe andthe United States. The conference proceedings have been published in Sarah Allanand Crispin Williams, eds., The Guodian Laozi (Society for the Study of EarlyChina: Berkeley, CA, 2000). Numerous books and articles have already been pub-lished on the Guodian manuscripts; Allan and Williams (supra) include a selectedChinese language bibliography, 258–266. A list created and updated by Paul RakitaGolden can also be found on the website of the Warring States Working Group,founded and led by Dr. Bruce Brooks, at http://www.umass.edu/wsp.

2. Tu Wei-ming notes this aspect of the Guodian find in “Guodian Chujian yuxian Qin Ru, Dao sixiang de chongxin ding wei,” in vol. 20 of Zhongguo Zhexue(1998), a special number dedicated to the Guodian find.


3. As in “The Case of the Murdered Brother,” Baoshan strips 131–139,Hubeisheng Jing-Sha tielu kaogudui, Baoshan Chumu (Wenwu chubanshe: Bei-jing, 1991), 358–359. This two-volume set of photographs, transcriptions andcommentary is the first place to look for Baoshan grave #2 and its contents; it willhereafter be referred to as BSCM.

4. See the bundle from Baoshan entitled “Shouqi,” strips 19–79, BSCM,350–354.

5. See strips 103–119, BSCM, 356–357.6. See strips 153–154, BSCM, 360.7. See strips 197–250, BSCM, 364–369.8. Mencius, 3A4, Lao, 103–104.9. This explanation of the reason for texts in graves was inspired by Pierre-Eti-

enne Will’s bibliography of 400+ official handbooks and anthologies from the im-perial period. These handbooks include many case-books assembled by experi-enced or retired magistrates from their personal archives and arranged and anno-tated to guide other magistrates in their legal work. See Pierre-Etienne Will,Official Handbooks and Anthologies of China: A Descriptive and Critical Bibliogra-phy (unpublished manuscript). The popularity of such books, from as early as theHan dynasty, suggests that traditional legal education in China may have hadsomething in common with Langdell’s case-method.

10. Alain Thote discusses the iconography of doors and windows in Chu fu-nerary practice in “The Double Coffin of Leigudun Tomb No. 1,” in Thomas Law-ton, ed., New Perspectives on Chu Culture (Princeton University Press: Princeton,NJ, 1991), 23–46.

11. See the analysis of Liu Binhui and others in BSCM, 533–547, 330–334.12. Shiji, “Chu shijia,” Takigawa Kametaro, ed. (Hongshi chubanshe: Taipei,

1981), 40.52.13. An important caveat in these assumptions about the absolute dates corre-

sponding to the Chu year-names is that, while the dates could not be earlier thanthose deduced in this way, they may have been somewhat later, if the events datedin Shao Tuo’s documents took place at intervals greater than a year apart.

14. While the date of Baoshan #2 is not particularly significant for classicalscholars, the date of the Guodian grave, described below, turns out to be key be-cause of the many earlier texts we find quoted or referred to in its documents. Thevery similar nature of the grave furnishings in the two tombs, described below, al-lows scholars to rely heavily on these Baoshan dates to fix that of Guodian #1.

15. Zhang Zhengming, Chushi (History of Chu) (Hubei Jiaoyu chubanshe:Wuhan, 1995), 290.

16. Hubeisheng Jingmenshi Bowuguan, “Jingmen Guodian yihao Chumu,”Wenwu, 1997.7, 35–48.

17. It seems very likely that the future will see more finds of great importanceto understanding the history and thought of this period. Given the growing num-


ber of texts found in the graves uncovered daily by the developer’s bull-dozer andthe grave-robber’s crow-bar, the archaeology of the period must now be consid-ered “historical.” It would be logical to begin to collect samples from the numer-ous wooden timbers found well- preserved in many of the graves in order to es-tablish a dendrochronology of the Warring States period in the Chu region. Anadditional source of materials for constructing such a sequence could be the manytimbers used to construct the shafts and galleries of the ancient Chu coppermines. Once established, a tree-ring sequence could help identify the very year inwhich the trees used for the wooden sarcophagi or other grave furnishings werefelled, tightening the range of years in which the graves themselves could havebeen built. See, e.g., Jeffrey S. Dean, “Dendrochronology,” in R.E. Taylor and Mar-tin J. Aitken, eds., Chronometric Dating in Archaeology (Plenum Press: New Yorkand London, 1997), 31–64.

18. See, e.g., Shijing, “Weifeng,” “Shuoren”; Morohashi Daijiten, 6.178.19. See BSCM, 404ff.20. Others have questioned the underlying assumption that the ritual rules

prescribed in the Liji for various ranks can be assumed to apply to real life in EarlyChina. It seems much more likely that these are “ideal” ranks and too simple toencompass the complex and diverse societies of the period.

21. In lectures at Harvard Law School in the 1980s, Professor Chang Wejen, ofAcademia Sinica in Taiwan, used these themes to analyze the Chinese legal tradi-tion.

22. This paper will rely most heavily on the “lost” books from Guodian, avoid-ing difficult questions of how to interpret the texts that have “received” counter-parts. A matching study will use evidence from similar language and parallel ideasin the received texts to suggest regional and chronological patterns in the evolu-tion of legal philosophy.

23. The reader should be aware that many of the ideas found in the Guodiantexts appear also in received books; because the goal here is to see law and philos-ophy of this particular place and time in context with each other, these parallelpassages are not addressed.

24. In order to warn the reader that the ordinarily accepted English transla-tions of key philosophical terms may conceal or distort their meanings, thesetranslations are capitalized. Each occurrence in Chu texts from this archaeologicalperiod gives us contextual clues to contemporary usage.

25. The language in Early Chinese philosophical texts is often ambiguous.26. While the term zhi is translated here as Will, it could also be rendered as

“orientation” or “momentum.” The concept lacks the Western philosophical over-tones of human freedom of choice between good and evil.

27. Where possible, this essay will follow the transcription conventions used inthe Wenwu volume.

28. The most famous passage is in Mencius, 6A.1–2, where Gaozi asserts:


“Human Nature is like water in an eddy; if one makes a breach to the East, it willflow East; if one makes the breach in the West, it will flow West. Human Nature, innot distinguishing Good from not-Good, is like water, which does not distinguishbetween East and West.” Mencius counters: “Indeed, water does not distinguishbetween East and West; but does it fail to distinguish up and down? The [tendencyto] Good in human Nature is like water’s tendency to flow down-hill.” Yang Bojun,ed., Mengzi yizhu, vol. 2, 254. Xunzi’s response to Mencius’ optimism relies on adifferent metaphor: “A warped piece of wood must wait until it has been laidagainst the straightening board, steamed, and forced into shape before it can be-come straight . . . ,” Xunzi xinzhu, “Xing E” (Zhonghua shuju: Beijing, 1979), 390;trans., Burton Watson, Hsun Tzu: Basic Writings (Columbia University Press: NewYork, 1963), 157.

29. This view of human Nature tends to clash with Mencius’ claim to havingan “unmoved heart” (budongxin), Mengzi yizhu, supra note 28, vol. 1, 61, thedefining characteristic of a person whose complete confidence in his/her own in-tegrity puts him/her beyond the reach of influences such as those listed above.Many scholars view the Guodian Confucian writings as filling a gap between Con-fucius and Mencius. See Guodian Chujian yanjiu, infra note 38. If the theoriespropounded in this essay indeed predate the noted passage from the Mencius, histheory of the budongxin may have been a response to the leveling idea that all hu-mans are equally responsive to influences of these kinds.

30. The meaning, and suitable translation, of the term qi has been much de-bated. In the texts from Guodian and Baoshan the word is written as qi. Qi is saidin the later Han dictionary, Shuowen, to be a pictograph meaning water vapor; thealternate form used in these texts may represent steam from a kettle. In the naturalworld, qi sometimes approximates the English word “energy” (for example, in thecategories established in the “Wangzhi” chapter of the Xunzi, water and fire aresaid to have qi but not sheng, energy but not life). In the realm of human psychol-ogy and physiology, however, qi seems to correspond to the European concept ofthe several bodily “humors.” In the religious texts from tomb #2 at Baoshan, ShaoTuo’s diviners use qi as a medical term in three phrases describing his progressiveillness: “sickness severe in the abdomen, shortness of breath (bing du ji, yi shaoqi)” (strip 207), “[sickness] in the lower belly, becoming severe; shortness ofbreath (xia xin er ji, shao qi)” (strips 218, 220); “since sickening, the ailment in theheart/chest severe, shortness of breath, unable to eat (ji bing, bing xin ji, shao qi, buru shi)” (strips 221, 223); “since sickness in the abdomen and heart, shortness ofbreath, and lack of pleasure in eating: for a long time has not improved (ji du xinji, yi shang qi, bu gan shi, jiu bu chai)” (Strip 236).

Qi has been a key concept in Early Chinese ideas about human nature at leastsince the composition of the Mencius; the difficulty of the concept is suggested byits peculiarly disparate translations: “Humors,” “Vapors” and “Material Substance.”The tantalizingly opaque discussion of the term in Mencius IIA.2 suggests a ten-


sion between the naturalistic view of qi and its role in a conscious program of eth-ical self- cultivation. That passage reports Mencius’ assertion that he and hisphilosophical rival Gaozi agree on the following formulation:

If you do not achieve it in your Heart (xin)

Do not seek it in your Humours (qi).

The topic is purposive self-cultivation, and the tone resembles that of apreacher. Mencius goes on to explain:

As for the Will (zhi), it is the Commander (shi) of the Humours (qi);

While the Humours (qi) are what fill [and animate] the Body (ti).

Therefore it is said: “Hold on to your Will, [and] do not do violence to

your Humours.”

In this passage, Will, Commander in the micro-polity of the human body, hasfinal authority; but the Will cannot succeed in the project of self-cultivation bydistorting, by going against the natural inclinations of the Humors.

31. Interestingly, emphasis on the coercive or at least disciplinary role of theHeart in ordering the Humors [qi] is directly criticized in one of the Laozi sectionsalso found in this grave:

“Increasing Life” is said to be “Auspicious”;

“The Heart in command of the Humours [qi]” is said to be “Strong.”

When things become strong they are old:

This can be said to be “Contrary to the Way.” [Strip 35]

32. The familiar translation of the term qing is “emotions”; however, its usagein this essay suggests that the term “Disposition” is more apt, as less likely to beconfused with qi.

33. The word dao occurs in the Guodian documents some 120 times. In 32cases, the graph used to write it is a path (xing) with a person (ren) in the middle,a pedagogically gripping way to represent the philosophical sense of the word.However, 89 examples use the common modern graph dao. The two forms evenshare parallel constructions on the same strip in a few cases (see “Xing zi mingchu” strip 56).

34. This graph is read by the editors of the 1998 edition as feng; Li Ling, in hissuggested revision, “Guodian Chujian jiaoduji,” Daojia wenhua yanjiu, no. 17(1999), 455–542, reads it as ni, suggesting that it means “to run contrary to, to op-pose” (508). This reading would radically change the sense of the phrase, makingPleasure into a force contrary to human Nature. The translation here relies on an-other usage of ni almost synonymous with feng, meaning “to meet, welcome,” asan arriving bride.

35. Li Ling and others have suggested that this chu should be read as chu, ormeaning “to demote or denigrate”; this reading would result in a translation like


“That which negatively affects the expression of the Nature. . . .” Li Ling (1999),508.

36. This translation relies on Li Ling’s interpretation of the line in Li Ling(1999), 508.

37. An alternative understanding of this dao is “spoken, or expounded”; how-ever, since the essay concerns the ways of affecting human Nature, the more activesense of the word seems apt.

38. Photographs of the strips, accompanied by transliterations and a graphfinding list, have been conveniently published in Zhang Guangyu, ed., Guodianchujian yanjiu (Yiwen yinshuguan: Taipei, 1999). Zhang has published a similarvolume on the Baoshan strips, Baoshan chujian wenzi bian (Yiwen yinshuguan:Taipei, 1992). Instances of the graph xing, often borrowed for xing, are listed on129–130 of the Guodian volume.

39. Some of the words have been added by Li Ling in his version of this book;he notes that he has filled the gap “according to the sense of the passage.” Li Ling(1999), 532, 536.

40. David Hawkes has analyzed the Shiji biography of Qu Yuan, finding that itis composed of several layers and concluding that this part may be the least reli-able. The Songs of the South (Penguin: Harmondsworth, UK: 1985), 53–55.

41. Shiji 84.2.42. This translation read you wei wei zhi, you wei yan zhi and you wei ju zhi as

characterizing the human actors who produced the Classics: heroic, performers ofgreat deeds. An alternate understanding would take the you wei to mean purpose-ful, as in “The Odes were composed purposefully,” or more generally, “The Odeswere compositions with Purpose.”

43. It may be useful for the modern legal historian to see these Classics less ashistory and folk poetry than storehouses of norms for later development of law.See E.A. Havelock, The Greek Concept of Justice: From Its Shadow in Homer to ItsSubstance in Plato (Harvard University Press: Cambridge, MA, 1978).

44. See the legal documents found in the grave of Xi, a low- level Qin legal of-ficer who died in former Chu territory in 217 b.c. Shuihudi Qinmu zhengli xi-aozu, Shuihudi Qinmu zhujian (Wenwu chubanshe: Beijing, 1978).

45. See the transcriptions and commentaries by Li Xueqin and Peng Hao inWenwu, no. 8 (1993) and Wenwu, no. 3 (1995).

46. See, on Qing dynasty law of evidence, Alison W. Conner, The Law of Evi-dence during the Ch’ing Dynasty (Ph.D. dissertation, Cornell University, 1979).

47. On the topic of Huang Lao thought, see, e.g., John S. Major, “Characteris-tics of Late Chu Religion,” in John S. Major and Constance A. Cook, DefiningChu: Image and Reality in Ancient China (University of Hawai’i Press: Honolulu,1999), 121–143, and Heaven and Earth in Early Han Thought (SUNY: Albany,1993).

48. (SUNY Press: Albany, 1999), 340–345.


49. See, for example, the two cases recorded on strips 14–17 and strips131–140.

50. See strips 103–119.51. In the “Case of the Murdered Brother,” translated below, the initial arrests

are delegated to a qinke with the poetic name of Baiyijun, literally “Lord of a Hun-dred Justices,” by means of a document called a quandeng, something like a war-rant.

52. Li Ling (1999), 507, 511.53. Li Ling (1999), 523.54. Li Ling (1999), 512, 514.55. On the issue of military coercion, the Laozi texts found at Guodian again

tend to agree:

Weapons are not the instruments of the junzi;

He uses them only when there is no alternative. . . .

Therefore if one kills men in great numbers,

One should grieve for them with compassion;

One should mark military victory

With the mourning rites. [“Laozi C,” strips 6–10]

56. Xin appears in the Baoshan texts in a formulaic phrase used by witnessesunder oath: “In truth, according to what I have heard and know, xin pu wen zhi.”[Strip 137] It is possible that in this context, xin is borrowed for qin, meaning I,myself, personally. This makes a little better sense as part of testimony givenunder the blood oath, which as we know from the Houma and Wenxiancovenants, was sworn by each person individually. See Susan Weld, “TheCovenants from Houma and Wenxian,” in Edward Shaughnessy, ed., PaleographicSources of Chinese History (AAS monograph series: Ann Arbor, Michigan, 1999). Itis tempting, however, to read xin as the philosophical term “Good Faith” used in alegal context.

57. See R.P. Peerenboom, Law and Morality in Ancient China: The Silk Manu-scripts of Huang-Lao (SUNY Press: Albany, 1993), chapter 1.

58. This line of argument may be undermined by Li Ling’s suggestion that thegraph in question be read as yu instead of yao. Li Ling (1999), 501, 502.

59. Peng Hao’s note to strip 29 refers to a record of this conquest in theZuozhuan, year 5 of Duke Wen of Lu. BSCM, 374.

60. See Chen Wei’s discussion of this book in Baoshan Chujian chutan (Wuhandaxue chubanshe: Wuhan, 1996), 132ff.

61. Chen Wei (1996), 132–134.62. Strips 131–139, BSCM, 358–359.63. Strips 1–17; see Chen Wei (1996), 124–131, and Susan Weld, “Chu Law in

Action,” in John S. Major and Constance A. Cook (1999), 85–7.64. Strips 15–17, BSCM, 349–350.


65. Strips 43–44, BSCM, 351.66. Strip 140, BSCM, 359.67. My discussion of this essay has benefited from the preliminary translation

prepared by Sarah Queen for the Guodian conference at Dartmouth in 1999, aswell as joint consideration of the text in an informal seminar held by Queen andmyself during that summer. Any errors or infelicities are my own.

68. See John Henry Merryman, David S. Clark and John O. Haley, The CivilLaw Tradition (The Michie Co.: Charlottesville, VA, 1994), ch. 5.

69. As Mark Lewis notes, theories of minimalist government, judicial discre-tion and decentralization of state power are at the heart of the policies of the earlyHan political figures identified by Sima Qian as adherents of “Huang Lao”thought. Writing and Authority in Early China (SUNY–New York Press: Albany,1999), 340–351. Interestingly, possible legal aspects of this “school” of thought arereflected in the Zouxianshu, or “Book of Hard Cases,” recently excavated from anearly Han grave.

70. For this group, see Li Ling’s suggested rearrangement (1999), 537–540.71. Strip 102, BSCM, 356.This record has additional comments added in dif-

ferent handwriting on both front and back; unfortunately, these have not yet beendeciphered.

72. David T. Hall and Roger T. Ames, Thinking through Confucius (SUNYPress: Albany, 1987), Anticipating China (SUNY Press: Albany, 1995) and Thinkingfrom the Han (SUNY Press: Albany, 1998).

73. The words cited also occur, with some differences, in received versions ofthe Book of Documents.

74. The graph translated as “retired” is transcribed as read by the Wenwuchubanshe editors as a form of shan, a short form of shanrang: the practice of aruler retiring from power in old age and giving the throne up to a chosen succes-sor from another kin group. Guodian Chumu zhujian, supra note 1, 158. Whilethis does seem to be the general sense of the term in “Tang, Yu zhi dao,” the editorsof Guodian Chujian yanjiu, vol. 1, Wenzibian, read the graph as bo, in the sense ofretiring, abandoning the enterprise of rulership, kicking over the traces of publicservice.

75. Shanxisheng wenwu gongzuo weiyuanhui, Houma mengshu (Wenwuchubanshe: Shanghai, 1976)(HMMS), 156.1, 238.

76. For the contents of the pit, see HMMS, 410.77. See the preliminary excavation reports in Wenwu, no. 9 (1975), 13 and no.

8 (1993), 19.78. I owe this apt characterization of the zhongxin, visceral, as opposed to

cerebral, to Irene Bloom, “On the Matter of the Mind,” in Donald Munro, ed., In-dividualism and Holism (University of Michigan: Ann Arbor, 1985), 296.

79. Duan Yucai, com., Shuowen jiezi zhu (Liming wenhua shi cong fu fen Ltd.:Taipei, 1990), 2A.4–5.


80. According to the BSCM method of equating Chu year-names with Westerndates; this was the last year before Shao Tuo’s death.

81. BSCM, strips 120–123, 357.82. Chen Wei, “Baoshan Chu sifa jian 131–139 hao kaoxi,” Jiang-Han kaogu

(JHKG), 1994.4.67–71, 66.83. See Xu Shaohua, Zhoudai Nantu lishi dili yu wenhua (Wuhan daxue

chubanshe: Wuhan, 1994), 284–285, map 2. Professor Xu identifies Yin as a xiancreated for a descendant of the famous Qi Guan Zhong in the Spring and Autumnperiod.

84. If not a retainer of the dowager herself, Shu Qing might have been an offi-ciant attached to the lands set aside to maintain the dowager’s sacrifices.

85. The term quandeng seems to mean a written document that delegates co-ercive power to the qinke to arrest the accused. As we shall see below, in this casethe coercive power may have been misused, as one of the two defendants dies dur-ing the arrest.

86. This term, qinke, is related to qinwu, the military word for troops placed inthe vanguard to warn of danger and protect the main body of troops, as well asgeneral royal “facilitators.” The word, in the context of judicial proceedings, hasthe feeling of “bounty hunter”: a semi-official law enforcement assistant in a rela-tively lawless time. “Enforcer” seems to carry some of the same implications.

87. It is pleasantly unexpected to discover this warrior for hire named after theConfucian virtue (yi), translated since the nineteenth century in Old Testamentfashion as “righteousness.”

88. The graph transcribed here as si is a graphic variant that occurs frequentlyin both the Baoshan and Guodian documents. In this form, the word drops thexin, or “heart” signific from the bottom, but differs from the word tian, or “field,”in being tear-drop rather than square in shape, and having a slight stem at thepointed top of the tear-drop. It is tempting to see this use of the word as a require-ment for the authorities to ponder the case before deciding it, in the Guodiansense in which the “Xing zi ming chu” text says: “In general, cogitation (si) em-ploys the heart (xin) deeply.” Guodian Chujian (1998), 180. However, Chen Wei isprobably correct in reading the word in the Baoshan legal and ritual texts asmeaning “to cause, force” (shi).

89. “A Chinese Demonography of the Third Century b.c.,” Harvard Journal ofAsiatic Studies (HJAS), vol. 45.2 (1985), 459–98.

90. Liji, “Quli,” ch.3.10b–11b; James Legge, trans., Li Chi, Book of Rites, 2 vols.(University Books: New York, 1967 [reprint of 1872 edition]), 1.92. See MichaelDalby, “Revenge and the Law in Traditional China,” Am. J. Legal History (1981),267ff.

91. Liji, “Tangong,” ch.7.17a–18a; Legge (1967), 1.140.92. The phrase used in this document, “Xu Cheng” is shorthand for the full

year-name, “[The year following the year in which] the envoy of Eastern Zhou,


[Xu Cheng], offered sacrificial meats in Qi Ying,” which also appears on strip 12(BSCM, 349). The use of this kind of short-hand shows us how the Chu state bu-reaucracy was able to cope with the cumbrous system of year- names.

93. As Chen Wei points out, this individual appears in a later case as an aide tothe zuoyin; here he seems to be transmitting the King’s orders, by way of ShaoTuo, also based in the capital city, to the local officials for implementation. JHKG,1994.4.69.

94. Shuowen jiezi zhu, supra note 79, ch.5A.5, 193. Duan Yucai notes that thisexplanation follows the meaning of si, which Xu Shen defines as “A court. A [per-son or place] having to do with law.” Ch.3B.29, p.122. Duan continues: “TheNine Courts are where the government is located: in this place one finds equaljustice.”

95. Literally, unless the word mou is here taken as a surname, this means “HanX”; is it possible that such indefinite references were used in documents assigningblame with great precision?

96. The sibai officials appear frequently in these documents. The editors of theBaoshan strips refer to Du Yu’s commentary on the use of the term in theZuozhuan, Wen 10, where he says “In Chen and Chu, the sikou is called sibai.”While these names may have referred to the highest legal official in the centralgovernment in earlier times, as suggested by the Zhouli, the sibai in these textsseem to be attached to local, rather than central governments. As we saw above, itis very often the local sibai who is shouqi, assigned a “date certain” by the centralgovernment by which to carry out tasks related to judicial administration. Herewe see a local sibai of Yin reporting to the king’s delegate, Tang Gong, on theprogress of the case.

97. Xuan Wei must be a kinsman of the dead Xuan Mao.98. Si sheng zhi. BSCM, strip 136, 359. This phrase is interpreted by Chen Wei

to stand for the hearing of the complaint: shi ting zhi (1996), 141.99. The editors of BSCM point out that the Zhouli provides that each group of

25 families “are to build an altar to the god of the soil, planting the trees appropri-ate to their locality,” 359, 381.

100. Lunyu, 13.18. Bruce and Taeko Brooks date this verse to 322 b.c. in TheOriginal Analects (Columbia University Press: New York, 1998), 102; approxi-mately contemporary with Shao Tuo.

101. Xu Shaohua (1994), supra note 83, 268–269.102. See the principles of evidence in Qing dynasty law discussed by Alison W.

Conner (1985), supra note 46. Strips 126–128 record the zuoyin’s order to the legalofficer of a certain town to ascertain whether or not Yang Chu lived with his fatherYang Nian in the same house; local officials, enclosing the local lineage register(shideng) as proof, responded that Yang Chu in fact resided in the capital, Ying,with his uncle. The state’s high-level interest in Chu’s living arrangements musthave been related either to criminal or to tax liability. BSCM, 358.


103. Strips 23, 123, 131–139. BSCM, 350, 357, 358–359.104. Strips 80, 85, 125, 127, 133, 139, 150, 157. BSCM, 354, 357, 358, 359, 360,

361.105. Strip 91, BSCM, 202; see also strip 202, BSCM, 365.106. See, for example, the two relatively complete case records on strips 15–17

and 131–139, BSCM, 358–359.


5

The Role of Case Precedent in the Qing Judicial Process as Reflected

in Appellate Rulings

R. Randle Edwards

Others have noted how remarkable it was that fewer than two thousanddistrict magistrates were largely responsible for governing a Chinese pop-ulation that may have numbered 350 million by the mid-1700s. The em-phasis of Confucianism on self- cultivation and the state’s heavy relianceupon the family, clan, and village structures both helped to avoid andregulate conflict “off the books.” Equally important, and still less well un-derstood today than the role of Confucianism and extra-governmentalsocietal institutions, was the Qing legal system.

The highly formalized impeachment process and administrative pun-ishments system kept the bureaucracy focused on compliance with themyriad minutely detailed tasks set forth in the administrative code.1 In thepreface to his pioneering work on the Qing administrative system, W. F.Mayers made the insightful observation that “. . . the foundations of theChinese State repose upon an all-pervading officialism. . . .”2 As for thehundreds of millions of ordinary Chinese, when Confucian self- regula-tion and the network of extra-governmental societal controls both failedto keep them in line their transgressions were sanctioned by formal crimi-nal law. Where was that law found, and how was it created and applied inspecific cases?

Qing criminal law was found primarily in the penal code, which con-sisted of statutes and sub-statutes. Most of the former were received al-most verbatim from the Ming Dynasty. By tradition, the statutes were re-tained with very few changes throughout the dynasty. The sub-statutes, on

180

the other hand, grew from a handful at the beginning of the Qing periodto almost two thousand by the end of the nineteenth Century. China’srulers had long recognized that law must evolve in response to changingsocial needs.3

Who made the laws? Formally, the emperor was the chief law maker andin certain rather rare instances the emperor might initiate or otherwiseleave his personal imprint upon a new sub- statute. As a rule, however, inlegal matters the emperor simply approved or rejected recommendationsmade to him in memorials submitted by officials charged with judicial andlegislative authority.

A central government organ, the Statutes Commission, was responsiblefor periodic code revisions. The Commission did not, however, generatenew laws. Aside from its editorial role in code revision, it was essentially aresearch body that investigated the archives of legal cases and reported itsfindings to bureaucratic bodies with judicial decision-making authority,such as the Board of Punishments. The senior officials of the Board fre-quently referred to the Commission complex questions of statutory inter-pretation or conflicts of case precedents.

So, how did new binding legal rules come into being? The answer isthat new rules emerged from the judicial process and through legislativeproposals from provincial territorial officials and censors. As officials withjudicial authority faced issues not covered by existing statutes or sub-statutes, they would often come up with a reasoned rule by reference toearlier cases. If their decision were upheld by higher authorities, possiblyincluding the emperor, that rule then would become law. A case rulingmight acquire the status of prospective law in three forms: as a formallyenacted sub-statute; as a “general circular” issued by imperial order to allcourts in the country as a binding rule; or without further embellishmentremain on the books as a case precedent.

My observations about the role of case precedents in the Qing judicialprocess will be illustrated by references to eleven appellate cases which Ihave translated and appended to the chapter. I have also drawn generallyon research conducted for me by Ho Min,4 who examined the role of caseprecedents as reflected in 1,523 criminal cases reported in the XinganHuilan (“Conspectus of Criminal Cases”).5

All case decisions which articulated a rule not yet set forth in the penalcode might be cited as the basis for decision in like cases in the future.For example, see comment by senior officials of the Board of Punishmentin a 1795 case (Appendix, Case 7), revealing that they have refrained from

Case Precedent in the Qing Judicial Process 181

applying their own preferred statutory interpretation in the case because“. . . since there is a case precedent, we have no choice but to follow it.”6 Aneven stronger statement of the role of case precedent in the Qing wasmade by one of the PRC’s [People’s Republic of China’s] leading scholarsof Qing law, the late Zheng Qin, who says emphatically that “chengan wereprecisely case law, decisional law.”7 Zheng quotes the famous handbookfor Qing legal secretaries authored by Wang Huitsu as saying that Qinglegal secretaries and judicial clerks could not do without chengan in han-dling criminal cases.8 Imperial decisions which explicitly stated that theywere not to be followed in subsequent cases obviously did not becomebinding precedent.

Aside from direct application of case precedents in the process of adju-dication, prior case decisions were a major source of new statutory enact-ments adopted in the course of the periodic revisions presided over by theStatutes Commission. As Zheng Qin notes, Qing legal specialists oftenused the expression that “cases give birth to statutes.”9

The appended cases also shed light on how both statutory and judge-made law was applied in specific cases. Not unlike judges in the Anglo-American common law system, Qing judges were obliged to “treat likecases alike”10 and apparently were also expected to provide a detailed ex-planation of the reasoning process they employed to arrive at the statutoryinterpretation they advanced. While Confucian or Legalist values can beidentified as the ideological source of particular statutes, the overridingconcern of individual judicial officials and the reviewing authorities inBeijing was to ensure that adjudication conformed to explicit proceduralrequirements and advanced the aims of consistency and fairness.

Contemporary Chinese leaders and scholars of comparative law shouldboth be encouraged to learn about the role of case precedents and judicialreasoning in the traditional Chinese legal process. Insight into these issuespossesses both current functional value and substantial theoretical signifi-cance for the comparative study of legal systems.

China today faces the same problem that challenged the Qing emper-ors—how to regulate the world’s most populous society in a manner thatthe state can afford and that will enhance the regime’s legitimacy and itsclaim to be a champion of justice and fairness. The widespread use of caseprecedents in the Qing were no doubt one of the reasons for the relativestability achieved under China’s imperial bureaucratic governance system.Hence, China’s current leaders might benefit from study of a successfulimperial legal institution—an indigenous case precedent system—that

182 r. r a n d l e e d wa r d s

helped China’s pre-modern rulers to mediate between a formal bureau-cratic government and a huge population regulated by a complex combi-nation of formal legal rules, Confucian ideology, and millennial socialstructures and practices.

The Qing Dynasty judicial archives contain thousands of appellate casedecisions that reveal the sometimes sordid details of horrendous crimes.These decisions also represent the written efforts of judicial officials to ex-plain their judgments in a way that would enable them to avoid impeach-ment for erroneous judgments. In addition, written case decisions offi-cially recorded the state’s concerns for values that the average citizen couldonly applaud—accuracy of fact finding, judgments in accordance with thelaw, uniformity of results in cases presenting the same issues of law, andcommitment to procedural correctness and substantive fairness.

The records of criminal cases reflect how the Qing judicial process dealtwith real problems of real people. The eleven cases I have translated andgathered in the Appendix to this paper will provide the reader with threekinds of insights: one, insight into the nature of social conflict and crimein China two hundred years ago; two, insight into the nature of Qing judi-cial reasoning—a more elaborate exercise than that engaged in by PRCjudges today; and three, an insight into the way Qing judges relied uponcase precedent to achieve fairness and consistency in a populous and com-plex society governed by a state with limited resources.

Statutory Guidelines

The Qing criminal code expressly required all judicial officials to cite thestatutes and sub-statutes upon which they relied in deciding a case (Code5:3715; DLCI 5:1277) to ensure that the result conformed to the statutorypurpose. A sub-statute in the same section of the code (Code 5:3718,DLCI 5:1277), enacted in 1738, explicitly forbids the invocation of anycase precedent that has not been approved by the emperor for issuance asa “general circular” to all courts in the land. My conclusion is that thissub-statute was construed in an extremely narrow way. In fact, prior casedecisions were the mainstay upon which judges, legal secretaries, andclerks relied to find an appropriate legal rule to apply in any concretecase.11 The importance of reliance upon previously decided cases is re-flected in the judgments in the appended appellate reports from the Xin-gan Huilan.


Monetary Redemption for the Aged

Article 22 of the Qing penal code states that offenders who commit crimescalling for the punishment of banishment or less, and who have reachedthe age of 70 or who have become disabled, may be allowed the privilegeof monetary redemption of their punishment (Code 1:409; DLCI 2:91). Inother words, the statutory punishment might be commuted to a monetaryfine. Certain serious crimes, including vicarious implication in treasonand rebellion, are excluded from clemency under this statute. Article 23 ofthe Qing code further states that convicted offenders who were not aged70 or disabled at the time they committed their offense but had become soby the time the offense was discovered are deemed to be old or disabledfor purposes of Article 22 (Code 1:419; DLCI 2:99). Cases 1 and 2 in theAppendix illustrate how case law established further standards for judgesthat were not set forth explicitly in Articles 22 and 23 nor in any sub-statute under those provisions.

Case 1: Xu Chaosheng (1792) This case arose in Guizhou Province andwas ultimately decided by the Board of Punishments in Beijing in 1792. Itinvolved a man named Xu Chaosheng, who had been convicted of incitinglitigation, a serious crime in imperial China; the governor of Guizhouprovisionally sentenced Xu to lifetime banishment, pursuant to the perti-nent statute (Code 4:3025; DLCI 4:1019). Given the fact that Xu had al-ready reached the age of 70, the governor requested instruction (qing shi)from the Board regarding whether Xu should be granted monetary re-demption of his punishment of banishment.12 The senior officials of theBoard of Punishments remanded the case to the governor, with orders forhim to determine whether any case precedents existed.

While the governor apparently found no pertinent cases, he did venturean opinion on the rationale of the statute permitting monetary redemp-tion for criminals who had reached the age of 70. He pointed out thatclemency for the aged offender is based upon the assumption that he hasdiminished capacity and, hence, is not likely to repeat his offense. How-ever, if an offender guilty of inciting litigation, who has reached the age of70 with undiminished mental capacity, were to be allowed commutationof his sentence of banishment to payment of a monetary fine, he mightwell continue to create trouble, thus undermining the goals of “warningthe cunning and reducing litigation.”


On receipt of the governor’s second report in the case, the Board con-ducted its own search for a case precedent and discovered no case pre-cisely in point. However, the Board did find numerous other cases wherecriminals over the age of 70, who had committed serious crimes, were de-nied monetary redemption. Hence, the Board endorsed the governor’srecommendation that monetary redemption not be granted to XuChaosheng, thus importing into the law a restriction on monetary re-demption for the aged not found explicitly set forth in the governingstatute.

Case 2: Wu Rupan (1816) This is another case involving the statute allow-ing monetary redemption for offenders reaching the age of 70. Unlike theXu case, however, this one has a happy outcome for the offender, who isultimately granted the privilege of monetary redemption. The different re-sult may stem in part from the difference in crime, though the appellatereport does not address the statutory rationale that was central to the ulti-mate decision in the Xu case. Perhaps the senior officials in the Board ofPunishments felt a twinge of peer sympathy for Wu, the 70 year old for-mer official who had been impeached and deprived of his rank for writingan essay for his son’s civil service exam. The governor of Jiangsu Provincerecommended a sentence of lifetime banishment for Wu under the gov-erning sub-statute. He also pointed out that Wu’s mother was still living,aged 90, but that it was not necessary to grant Wu the privilege of stayinghome to care for her, as his son was able to do that (even if he might nothave been able to pass the civil service exam without assistance). The gov-ernor also dutifully reported that Wu’s mother had submitted a requestthat her son be allowed monetary redemption as he would soon be 70.

The prefect opposed allowing monetary redemption for Wu, arguingthat neither Article 22 nor Article 23 authorized commutation of a crimi-nal sentence to a fine for an offender who turns 70 after his crime is dis-covered. The prefect also invoked as precedent a 1743 case from ZhiliProvince in which the monk, Liu Erh, was denied monetary redemption incircumstances similar to Wu’s. It is worth noting that a prefect in Jiangsuwas aware of and thought it appropriate to cite a case decided in anotherprovince seventy-three years previously.13 When the prefect’s opinionreached the desk of the provincial judicial commissioner, the latter officialpointed out that the Liu Erh case was “an ancient case which, accordingto sub-statute, may not be invoked as authority.” The commissioner


requested instructions from the Board as to whether Wu should begranted monetary redemption.

The Board of Punishments, noting a consistent practice of allowingmonetary redemption for criminals who claim to have reached the age of70 at any time prior to their arrival in Beijing for customary review oftheir sentence of banishment, concluded that in the Wu case, the Board“naturally should follow the established practice and allow him monetaryredemption by referring to the precedents.” In other words, a consistentpattern of permissive case decisions had significantly relaxed the explicitlimiting standards established by the governing sub- statute.

Monetary Redemption for the Disabled

Article 22 of the Qing code also authorized monetary redemption for of-fenders who commit crimes calling for the punishment of banishment orless, and who are disabled. Article 23 extends the privilege of monetary re-demption to those who may not be disabled at the time they commit thecrime for which they are sentenced to banishment, but who become dis-abled before their crime is discovered. The following case illustrates theuse of case precedent and self-confident judicial reasoning to limit the ex-tent of the statutory privilege of monetary redemption for disabled crimi-nals.

Case 3: Li Zhong (1824) This case involved the question of whether LiZhong, a disciple of Zhou Tian, a leader of a heterodox sect, should be al-lowed the privilege of monetary redemption of his statutory punishmentof deportation to Hui City14 because both of his feet were amputated,causing him to become a cripple. The governor of Shandong had askedthe Board of Punishments whether Li Zhong might be detained in jail inhis home district in perpetuity, given the virtual impossibility of his beingable to travel to the place to which he had been deported.

The relevant department of the Board surveyed the case records andfound an 1816 Hubei case in which Yang Shengsi, a disciple in a heterodoxsect, injured both feet in a fall, leading to infection and double amputa-tion. In that case, the Hubei governor proposed granting monetary re-demption to the offender under Article 22’s provisions governing disabil-ity. In reviewing the governor’s recommendation, the Board concludedthat Yang’s crime was particularly serious, not an ordinary offense wheredisability would warrant monetary redemption. Most importantly, the


Board reasoned that Yang still represented a substantial danger to thecommunity, as he could continue to worship in the sect and pose the dan-ger of causing disturbances and deceiving the masses. Hence, the Boardruled that Yang should be sent to the assigned place of deportation. Thefacts of the Li Zhong case were virtually identical to those of the earlierYang Shengsi case. Hence, the Department for Shandong in the Boardconcluded that “. . . we should follow the Yang Shengsi case decision of dis-allowing redemption. . . .” As for the governor’s creative proposal to keepLi Zhong in jail in perpetuity, to avoid forcing a footless man to travel athousand miles, the Board rejected the notion because “. . . it is inconsis-tent with the case precedents so it would be inappropriate to handle thecase as proposed.”

Convicted Criminals Remaining at Home to Care for Parents

Article 18 of the Qing code gave statutory form to an important Confu-cian value—filial piety. That article stated that a person convicted of evenvery serious crimes might be allowed to remain at home to care for one orboth of his parents. The statute was a lengthy one and appended to it werenumerous sub-statutes. Moreover, an examination of the Xingan Huilan’stable of contents reveals that this article was one of the most widely usedof any in the penal code. Three of the cases I have translated and includedin the Appendix deal with the application of this provision. Each of thecases sheds light on crime and punishment during the Qing, on laymen’suse of legal provisions, and on the vigor of judicial statutory constructionand use of case precedent.

The governing statute provided that even offenders convicted of capi-tal offenses might be allowed the benefit of remaining at home to care fora parent, provided that their offense was not one excluded from the sweepof ordinary amnesties, and provided that their parent had no other son orgrandson 16 or older at home competent to care for them; in otherwords, the situation had to be just like that where the parents had a soleson (Code 1:357; DLCI 2:61). The presiding judicial official had to submita palace memorial stating the nature of the crime and the circumstancesof the parental dependence. The central authorities would then determinewhether or not clemency should be granted. In a case involving an of-fense calling for the punishment of banishment or penal servitude wherea parent or grandparent had no one to care for them, the offender wasmerely subjected to one hundred blows of the heavy bamboo and allowed


to redeem the remainder of his statutory penalty by payment of a mone-tary fine, to allow him to remain at home to care for his relative.

Case 4: I-Lu-Le-Tu (1820) This case concerned I-Lu-Le-Tu, a Mongolianhorse thief, who was a resident of the Chinese territory called Chahar, thatextended west of the Great Wall to the Gobi desert and north to the landof the Khalkas and that was inhabited both by ethnic Mongolians and HanChinese.15 The case I have translated was reported to the Board of Punish-ments in Beijing by the Military Lieutenant-Governor of Chahar, who hadexclusive jurisdiction over matters involving only tribal people (the gover-nor-general of Zhili Province had superior jurisdiction in civil matters re-lating to ethnic Chinese). This case involves consideration of the applica-tion to an ethnic Mongolian of a quintessentially Chinese institution,clemency in the form of allowing a criminal who is, effectively, the solesurviving son, to avoid serious criminal penalty by remaining at home tocare for a parent.

It appears that I-Lu-Le-Tu had been sentenced to deportation withinthe Chahar Region for horse theft, that he had escaped from his place ofdeportation, and was subsequently caught. The issue presented on appeal,as reflected in the report I have translated, is whether the offender shouldbe subjected to the penalty prescribed in the penal code for escaped de-ported offenders or, instead, should be allowed to remain at home to carefor his 63 year old mother. The penalty prescribed for escape was trans-portation for life to Yunnan, Guizhou, Guangdong, or Guangxi. The of-fender had two younger brothers, both of whom were Buddhist lamas liv-ing in a monastery.

The Military Lieutenant-Governor for the Chahar Region proposedthat the offender be allowed to remain at home to care for his mother inaccordance with the “sole surviving son” statute and pursuant to theprecedent of the Peng Chuke case, decided in 1800, in which an escapeddeported criminal had been granted clemency to care for a parent. TheZhili Department of the Board of Punishments rejected the Lieutenant-Governor’s recommendation on two grounds: one, the offender was not asole son; two, the Peng case can be distinguished as an “ancient case neverissued as a general circular, so that it may not be cited as the basis forjudgment in a current case.” Indeed, the offender did have two brothers.Hence, the Department stated that the two younger brothers themselvesshould be convicted of the crime of disrespect by priests and monks for a


parent and should be sentenced to bambooing, to force one of them to re-turn to lay life to care for their mother.

It is worth noting that Cases 3 and 4 both involved the clear statutorypolicy of subordination of church and “heterodox sects” to state censor-ship and strict regulatory control. While the judicial authorities in bothcases dutifully engaged in close analysis of statutory purpose and strove tocreate uniformity of law application by adherence to prior case decisions,the state’s deep fear of any threat to its monopoly of political power andpopular loyalty undeniably influenced both the substance of the pertinentlaws and the results of the appellate judgments in these two cases.

Case 5: Fan Gui (1821) This case would make a perfect Chinese opera. Itfeatures Fan Gui, a very filial eldest son who inadvertently wounds hismother with a knife while trying to admonish and subdue his unfilial andwild younger brother Fan Yuan. Another younger brother has left the fam-ily to become the adopted son of an uncle who had no son of his own tocontinue his family line. The mother, Mrs. Fan nee Wang, has been awidow for more than twenty years. So, it is easy to imagine her shock anddismay when she discovers that Fan Gui, upon whom she depends en-tirely, has been arrested and sentenced to decapitation for inflicting uponher an accidental wound from which she has already fully recovered.

The appellate report begins with the notation by the judicial reviewingauthority in Beijing that Mrs. Fan has submitted a petition to have FanGui’s death sentence commuted to a monetary payment to enable him tostay at home to care for her. Her petition argues, in effect—as had that ofI-Lu-Le-Tu in Case 4—that Fan Gui is her only son, as the youngest sonhas been adopted out of the family and the second son is worse than noson at all. Moreover, he has caused her so much trouble that she has al-ready formally petitioned the judicial authorities to deport him perma-nently to Guangdong Province.

Alas, her petition is rejected by the senior officials of the Board of Pun-ishments, who strictly enforce the statutory requirement that for an of-fender to receive monetary redemption to enable him to care for a parenthe must be the sole surviving son. The Board said that the unfilial errantsecond son could benefit from an amnesty and be returned to his mother,who hoped never to see him again. As for the younger son, the adoptioncould be undone and he could care for his mother. This tough reasoning isreminiscent of Case 4, in which the Board ruled that one of I-Lu-Le-Tu’s


Buddhist lama brothers should be bambooed and forced to return to laylife to care for his mother. Apparently determined to assure Fan Gui’sdemise, the Board argued that, even if he had been truly an only son, thecrime of injuring one’s mother was excluded from the benefit of thestatute allowing commutation of punishment to enable a son to care for aparent.

So, the stage seems to be set for a tragic ending to Fan Gui and a brokenheart for his mother. But, as luck would have it, Fan Gui escapes death attwo successive autumn assizes review. During this time, the youngestbrother dies and the bad middle brother is actually deported to Guang-dong. So, mother Fan apparently consults another underground lawyerand files a second petition with the Board of Punishments asking for thereturn of Fan Gui, informing the Board of the death of her youngest sonand stressing that if the unfilial middle son were to return from Guang-dong, he would just cause trouble for her and for the local authorities.

At this point, it seems that the usually strict constructionist legal ex-perts at the Board of Punishments must have been moved by the poorwidow’s plight. So, they decided to approve her petition. But, even theircompassionate reversal of position was cloaked in the double sanction ofstatutory construction and citation of case precedents. The Board pointedout that there was no sub-statute governing the precise facts of this un-folding melodrama. Hence, they were able to justify their approval of Mrs.Fan’s second petition by citing an unlikely precedent—a case involving aslave.

Case 6: Feng Kaiku (1825) The third case falling under the statute govern-ing commutation of a serious criminal sentence to a monetary payment inorder to enable a son to remain at home to care for a parent, like Cases 4and 5, reveals the Board of Punishments to be committed to a very stingyattitude toward granting the requested clemency. In the appellate report,we are not told what crime Feng Kaiku had committed, only that his fa-ther had petitioned to have him excused from the punishment of banish-ment so that he could stay at home to care for the father.

Feng Kaiku has a younger brother, Feng Yi, at home. The issue on ap-peal is whether Feng Yi is disabled to the extent that he is unable to carefor the father, so that Feng Kaiku might be granted commutation to en-able him to return home to be the caretaker. The Fujian Department ofthe Board of Punishments asserts that the level of disability of the youngerbrother required by statute is that he be unable to earn a living.


The father’s petition asserts that Feng Yi has epilepsy. The provincial re-port on the case also contained sworn statements by the local constableand the neighbors to the effect that Feng Yi developed epilepsy at the ageof 22 and lost consciousness. After noting that there is no precise prece-dent for this case, the Fujian Department recommends disapproval of therequest on two grounds. One, it maintains that epilepsy is not truly dis-abling, as persons with that affliction usually function normally; two, itexpresses suspicion that Feng Yi may not have epilepsy at all, as the consta-ble and neighbors may be in collusion to help keep Feng Kaiku at home.

Extenuating Circumstances

Cases 7 and 8 involve the question of what circumstances warrant reduc-tion of the punishment prescribed by statute. The sub-statute that gov-erned the offense of mass robbery of government offices in Case 7 ex-pressly authorized a reduction in penalty for extenuating circumstances,without specifying what facts qualified as extenuating. The statute govern-ing the offense in Case 8, homicide during a fight, does not explicitly au-thorize a reduction in penalty on the basis of extenuating circumstances.Hence, in both cases the higher level judicial authorities must rely upongeneral principles of statutory construction and case precedents to deter-mine if a penalty reduction is justified.

Case 7: Hou Santing (1795) Hou Santing was a follower of Wang Da wholed a large number of robbers who plundered the government offices ofHu County. Hou did not actively participate in the illegal entry and plun-dering, but waited outside to receive his share of the loot, along with ZhaoSan. Zhao was sentenced to immediate decapitation because he had a pre-vious robbery conviction. The statute prescribed decapitation with expo-sure of the head for all active participants in a mass robbery of govern-ment offices.

The governor of Zhili proposed the comparatively mild punishment ofdeportation for Hou, arguing that his remaining outside constituted anextenuating circumstance under the governing sub-statute. The Zhili De-partment of the Board approved the governor’s recommendation, furthernoting both that Hou had no prior robbery conviction and that caseprecedent supported such a result. The Department cited the 1752 case ofFeng Dacheng, who remained outside as a scout during a similar massrobbery of a government office; at that time the Board had concluded that


by remaining outside he qualified for clemency under the extenuating cir-cumstances clause of the governing sub- statute.

The senior officials of the Board disagreed with the Department’sanalysis of the facts and its statutory construction and expressed a prefer-ence for sentencing all the offenders in the case, including Hou, to decapi-tation. Reluctantly, however, the senior Board officials endorsed the rec-ommendation for clemency for Hou, stating that “. . . since there is a caseprecedent, we have no choice but to follow it.”

Case 8: Gao Daxian (1823) While the offender in Case 7, Hou Santing,was a knowing participant in a mass robbery who got a break because hewaited outside for his share of the plunder, the principal in Case 8, GaoDaxian, seems to be a well-intentioned victim of unfortunate circum-stances. When Gao’s roommate, Liu Xiunglin, contracted a high fever andwent berserk and jumped naked into the neighbor’s yard, their landlordpleaded with Gao to restrain Liu, who loudly threatened to repeat hisromp. Responding to the landlord’s entreaty, Gao finally succeeded inforcefully restraining Liu with a few well-placed kicks to the body. Unfor-tunately for both of them, Liu died from the injuries caused by Gao’skick.

The Board department recommended death by strangulation after theassizes under the statute governing homicide during a fight. The depart-ment found in its archives a case precedent from Shandong Province pre-senting similar facts where the offender received that sentence. On review-ing the department’s recommendation, the senior officials of the Boardstated: “. . . we can only follow that precedent.” Yet, recognizing that thesentence seemed a bit harsh, the senior officials recommended that at thespring assizes review Gao’s case should be classified as “worthy of compas-sion,” provided no actual evidence of a real fight was discovered in themeantime. The likely result was that Gao’s death sentence would be subse-quently commuted to lifetime banishment.

Case 9: Li Ming (1829) Li Ming was a thief who broke into a house in-habited by two unrelated men. In reviewing the case and preparing a draftdecision and sentence, the governor of Yunnan treated the crime as a theftof goods from a single family, cumulating the monetary value of all of theitems taken from the two victims. As criminal penalties involving theft ofmovable property were graduated according to the value of the goods ille-gally taken or received, the governor recommended the sentence of stran-


gulation. His draft sentence was reversed by the Board of Punishmentsand the case was remanded for re-sentencing. The Yunnan Department ofthe Board of Punishments pointed out that where a thief takes propertyfrom two unrelated individuals, his sentence should be calculated accord-ing to the value of the goods taken from the victim who lost the most; theresult would be a sentence of penal servitude or banishment rather thanthe death penalty.

The Yunnan Department of the Board cited the precedent of an earliercase arising in Jejiang Province in which a thief stole property from twounrelated individuals living on the same boat. The department supportedits reversal of the governor’s proposed judgment by concluding that “Nat-urally, we should handle the cases uniformly.”

Case 10: Yang Cheng (1802) Yang Cheng lived together with his father ingovernment quarters belonging to the Board of Rites, where his fatherworked as a runner. Seeing a chance to pick up a bit of pocket money,Yang Cheng stole an old document. On his way out of the governmentcompound, no doubt en route to a pawn shop, Yang Cheng was caughtred-handed by the gate-keeper.

The Board of Punishments Department for Sichuan sentenced YangCheng to military banishment on a distant frontier, under a sub-statutegoverning administrative staff stealing from government offices. The se-nior officials of the Board approved the recommendation, citing two priorcases in which document thieves were given the identical penalty underthe same sub-statute, concluding that “. . . we find the decision is consis-tent with case precedents so we should request that the case be handledaccordingly.”

It is difficult to evaluate this decision without knowing more facts thanare contained in the brief appellate report translated in the Appendix. Forexample, it is slightly troubling that the report indicates Yang Cheng wassentenced under a statute governing administrative staff, when he wasmerely the dependent of a government runner. It would be interesting toknow what rationale was employed to justify equating Yang Cheng with agovernment employee.

Case 11: Censor for the Jiangsi Circuit (1833) This item is, of course, notthe report of the appellate resolution of a single criminal case. Rather, it isan example of a rather common and very important way in which unifor-mity of legislative standards and uniformity of case law was promoted


during the Qing Dynasty. This document is an example of a “general cir-cular,” establishing a new rule to be applied throughout the empire in thefuture disposition of a particular type of case.

The new rule set forth in Document 11 in the Appendix governs futuretreatment of persons found guilty of having falsely accused another ofcommitting a crime which carries a supplemental statutory penalty ofplacement in a cangue (a portable stock around the neck). The new rulestates that the false accuser should receive only the basic punishment ofpenal servitude or banishment and not the additional penalty of thecangue.

The censor, a roving investigator of bureaucratic malfeasance and non-feasance in Jiangsi Province, had discovered that there was no specificstatutory rule in point and that provincial judicial officials throughout thecountry had handled the issue in two different ways, some sentencing thefalse accuser to the cangue and others not. The censor alluded to two im-portant principles of adjudication: one, judges should never go beyondexplicit statutory language to impose harsher punishment; and, two, likecases should be handled alike. Hence, he proposed a uniform nationalrule. His recommendation was discussed by the senior legal officials inBeijing, who agreed with him and forwarded his proposal to the emperor,who approved it as a national legal policy in the form of a general circular.

Conclusions

The Qing appellate opinions appended to this short essay clearly illustratethe often sophisticated reasoning employed by Qing judicial officials atvarious levels, as they engage in sometimes closely argued statutory con-struction. We learn from these cases that every draft opinion must citeproperly the governing statute or sub-statute, if any can be found. If nopertinent statute existed, judicial officials in the provinces as well as in Bei-jing were apparently expected to find and cite case precedents. While it ap-pears that use of ordinary case decisions as the basis for a subsequent casedecision was subject to restrictions, there is evidence that the restrictionwas often ignored. When the officials of the Board of Punishments wishedto disregard an “ancient case” ruling that would not support their conclu-sion, they would invoke the sub-statute barring reliance upon old cases.On the other hand, we see in two of the cases in the Appendix reliance byappellate officials on very old case precedents.


Appendix

Case 1: Xu Chaosheng (1792)

[XAHL 1:416, lines 11 to 417, line 2]The Governor of Guizhou reported a case in which Xu Chaosheng incitedlitigation and was sentenced to banishment. In view of the fact that he hasalready reached the age of 70, the governor requests instruction from theBoard regarding whether Xu might be granted monetary redemption ofhis punishment. The senior officials of the Board of Punishments ordered thegovernor to investigate to determine whether or not any similar case had beenhandled and to indicate whether or not monetary redemption should beallowed. With these provisos, the Board conditionally approved the gover-nor’s proposed sentence of banishment. Pursuant to the order of theBoard’s senior officials, the governor investigated and found that the basicrationale for the statutory rule that persons aged 70 are permitted mone-tary redemption is that they possess diminished capacity so that they willnot repeat their offense.16 Nothing in the statute itself expressly sets forthsuch a rationale. Nor can it be found in the general commentary followingthe statute, or in any of the sub-statutes. In the upper section of the codepage containing the statute one finds a quote from the private commen-tary by Shen Zhiqi that “. . . the essence of this statutory provision is re-spect for the elderly. . . . ” Hence, the diminished capacity rationale has ei-ther evolved over time through case law or has been invented on the spotby the reviewing authorities in the Board of Punishments. For this reasonthey are granted special clemency to show compassion. This general ratio-nale does not address personal characteristics of the individual offender. Ifan individual who happens to have reached the statutory age and hasundiminished mental capacity were to be allowed monetary redemption,and to be excused from criminal punishment, he might continue to trou-ble the ignorant rural people. This would not seem to further the statutorypurpose of warning the cunning and reducing litigation!

We have researched and found no previous case like this has been handledby the various departments of the Board of Punishments. However, cases in-volving criminals who have committed serious crimes calling for banish-ment or military banishment, and who have reached the age of 70 but aredenied monetary redemption, occur from time to time. Given the fact thatthe said governor’s declaration asserts that the circumstances of the said


offender’s crime are relatively serious, it seems that we should not allowmonetary redemption.

Qianlong 57, Memorandum

Case 2: Wu Rupan (1816)

[XAHL 1:429, lines 8 to 430, line 7]The governor of Jiangsu has reported a case in which Wu Rupan, a crimi-nal sentenced to banishment, turned 70 years of age on the way to hisplace of banishment. We note a statute [Article 23; Code 1:419; DLCI2:95] which provides that, when a person neither old nor infirm at thetime of committing a crime becomes old or infirm before his crime is dis-covered by the authorities, he shall be deemed old or infirm. We furthernote a sub-statute which stipulates that a criminal who, upon arriving atthe Board of Punishments, claims to be old or to have become infirm enroute to Beijing and upon investigation indeed proves to be old or infirm,may also be allowed to redeem his punishment.17 Carefully expoundingthe meaning of the pertinent statute and sub-statutes, we find that thecrux of the matter is always whether or not the person committing thecrime is actually old or infirm now. The statutory reference to being old orinfirm when the crime is discovered specifically refers to the time whenthe crime is discovered. If one is 69 years of age when one commits acrime and 70 when it is discovered then the case should be adjudicatedand sentence proposed according to the statute governing those who areold or infirm at the time their crime is discovered.

Where one is not yet old or infirm when one’s crime is discovered butafter the case is concluded, or when the case is reported and the prisonerescorted to the Board of Punishments and the criminal actually becomesold or infirm en route, and there is no false claim, then the matter shall bedecided and sentenced according to the provision governing claiming tobe old or to have become [so] on arrival at the Board of Punishments oren route to the Board. The specific stipulations of the statutes and sub-statutes are quite clear and cases in the past have been handled accord-ingly.

In this case Wu Rupan, a salaried licentiate who has already been im-peached and deprived of his official status for having composed andhanded in an essay for his son’s civil service examination was tried andsentenced by the governor under the sub-statute governing handing in a


substitute exam paper, which prescribes the penalty of military banish-ment at a nearby frontier. In submitting his recommendation, the gover-nor declared that the mother of the criminal, Mrs. Wu nÈe Shen, is alreadymore than 90 years of age but that she has the criminal’s son to take careof her so that it is unnecessary to examine and handle the case under thestatute governing criminals being allowed to remain at home to care foraged parents. The palace memorial from the governor, dated in the twelfthmonth of last year, and this Board’s reply dated the second month of thisyear, are both on record. Now, we have received a report stating that thesaid criminal’s mother, Mrs. Wu nÈe Shen, has requested that her son beallowed to redeem his sentence by a monetary payment as he turns 70 thisyear. We further find on review of the educational records that, based oncalculations from the time the said criminal began his studies, he is indeed70 years of age this year.

The prefect argued that the said criminal’s case does not conform to theterms of the statute governing those who are old or infirm at the timetheir crime is discovered. Moreover, he invoked the Zhili Province case ofthe monk, Liu Erh, decided in the eighth year of Qian Lung [1743], inwhich the criminal was not allowed monetary redemption.18 The prefect’sopinion was reported to the judicial commissioner of Jiangsu Province,with the request that it be reviewed and an instruction issued. The judicialcommissioner noted that the case of the monk, Liu Erh, invoked by theprefect, was an ancient case which, according to sub-statute, may not beinvoked as authority; further noting that the said criminal has alreadyreached the statutory age for redemption, he has submitted to the Boardof Punishments a request for instructions as to whether the criminalshould be permitted monetary redemption.

We note that in all cases involving criminals reported to the Boardunder escort with a report stating that the criminal is aged, the criminalshave hitherto all been allowed monetary redemption.

Furthermore, the criminal in this case had already attained the age of70 before he began his escorted journey to Beijing. Therefore, we naturallyshould follow the established practice. As the case cited by the prefect of themonk Liu Erh is an ancient case, it is improper to take it as a basis forjudgment.

As on investigation it has been determined that the criminal, WuRupan, has indeed turned 70 this year, on review the facts seem similar tothose of criminals who on arriving at the Board have claimed they are old.


Naturally we should allow him monetary redemption by referring to theprecedents.

Jiaqing 21, Memorandum

Case 3: Li Zhong (1824)

[XAHL 2:839, lines 4–12]The governor of Shandong has reported to the BOP [Board of Punish-ments] that in the case of the heterodox sect criminal, Zhou Tianming, adisciple in the sect named Li Zhong, who had been tried and sentenced todeportation, had both feet amputated so that he had become a cripple.The governor asked whether Li should be sentenced to detention in jail inperpetuity. On investigation, we find that in cases involving heterodox sects,when offenders sentenced to deportation become crippled, they are not al-lowed the privilege of monetary redemption of their punishment. As forwhether such an offender should be sentenced to detention in jail in per-petuity, there is no explicit governing language among the sub-statutes.

On investigation we find that in Jiaqing 21 [1816] the Hubei governorreported that in the case involving Sun Jiawang and others who worshipedin a sect and proselytized disciples, Yang Shengsi, who was sentenced todeportation, fell into a ditch and injured both feet. His feet became in-fected and efforts to treat the infection were unsuccessful. Both feet werelater amputated, so that he was unable to get around. The said governorproposed allowing the offender the benefit of monetary redemption underthe statute governing the handicapped. On review, this Board reasonedthat since the offender had worshiped a sect leader, had joined the sect,and had chanted the sect’s magic incantation, his offense should be classi-fied as an accomplice in the offense of practicing heterodox religion; hiscrime was a serious one. We concluded that it was different from the situ-ation where someone involved in an ordinary crime becomes crippled andis allowed the privilege of monetary redemption of his punishment. Fur-thermore, although the said criminal had become crippled, he could stillworship in the sect and make converts. If he were allowed monetary re-demption and were permitted to remain in the interior of China, we fearedthat he would stubbornly repeat his offense and create the danger of causingdisturbances and deceiving the masses. We ruled that he should not be al-lowed monetary redemption but an order should be issued that he be es-corted to his place of deportation.


In this case, Li Zhong is an accomplice in a heterodox sect case who hasbeen sentenced to deportation. Although the said offender’s two feet havebeen amputated, making him a cripple unable to go to the distant place ofdeportation, the said offender has already practiced a heterodox religion.If he remained in the interior of China in detention in jail, it would be dif-ficult to guarantee that he would not willfully again cause trouble. Natu-rally, we should follow the Yang Shengsi case and disallow redemption andorder the offender to be escorted to his place of deportation, in order to sup-press trouble-making. With respect to the said governor’s proposal to sen-tence Li Zhong to detention in jail in perpetuity, it is inconsistent with thecase precedents so it would be inappropriate to handle the case as proposed;hence, Li Zhong should still be sent to Hui City as a slave pursuant to theoriginal sentence. The senior officials of the Board affixed the notation tothe department’s proposed sentence that “Your proposal is quite correct.Handle it accordingly.”

Daoguang 4, Memorandum

Case 4: I-Lu-Le-Tu (1820)

[XAHL 1:362, lines 4–11]The Commandant of the Chahar Region has reported a case posing thequestion of whether or not a criminal named I-Lu-Le-Tu, who has escapedfrom the place to which he was deported, should be allowed to remain athome to care for his parents. In this case, I-Lu-Le-Tu is a Mongolian whostole horses and was sentenced to deportation. Now, he has escaped fromthe place to which he was deported. According to the pertinent sub-statute, he should be sent to Yunnan, Guizhou, or Guangdong. Themother of the said offender is now 63 years old. The two younger brothersof the criminal are both lamas living in the temple. The said Comman-dant has provisionally applied to the said criminal the special provisionallowing a sole son to remain at home to care for parents.19 He has alsocited a Jiaqing 5 [1800] case precedent in which this Board reviewed andapproved a report from the previous commandant requesting the Boardto issue an advisory opinion on whether the escaped deported criminalPeng Chuke should be allowed to remain at home to care for his parents.Our investigation reveals that it has been a long time since I-Lu-Le-Tuwas deported for stealing. Now, he has escaped from his place of deporta-tion.


This case is different from cases where a criminal sentenced to deporta-tion has not yet been deported or has just arrived at his place of deporta-tion. Indeed, it does not even qualify for review and reconsideration.Moreover, the said criminal still has two younger brothers now serving asBuddhist lamas. They could still return to the lay life and care for theirparents. In no way can this situation be compared to that where the crim-inal is the only son. As for the case precedent cited in the commandant’soriginal report, concerning the escaped deportee Peng Chuke being al-lowed to remain at home to care for his parents, that is an ancient casenever issued as a general circular so that it may not be cited as the basis forjudgment in a current case. The criminal I-Lu-Le-Tu should be sent awayaccording to the pertinent sub-statute and should not be allowed to re-main at home to care for his parents. The two younger brothers of the saidcriminal are both lamas. If they are not willing to care for their parents,they should be convicted under the statute governing monks and priestswho do not show respect for their parents,20 and should be sentenced tobambooing to compel one of them to return to the lay life to care for theirmother so that the elderly woman will have someone upon whom to rely.Handling the case in this way also conforms to the established sub-statute, so that the law and the facts will be harmonized.

Jiaqing 25, Memorandum from the Zhili Department

Case 5: Fan Gui (1821)

[XAHL 1:298, lines 1–9]The Jejiang Department of the Board of Punishments reported a case inwhich Mrs. Fan nÈe Wang petitioned to have her eldest son, Fan Gui, re-leased from his criminal sentence to stay at home to care for her. We findon investigation that Fan Gui accidentally wounded his mother when,after quarreling with his younger brother, Fan Yuan, he picked up a knifeand threatened to stab him. Fan Gui was tried and provisionally sentencedto immediate death by decapitation by the BOP department;21 that draftsentence was reduced to decapitation after the assizes by the senior officersof the BOP.

Now, according to the petition submitted by Mrs. Fan nÈe Wang, shehas observed vows of chastity for more than twenty years (after the deathof her husband).22 She gave birth to three sons; the youngest, Fan Bao, hasbeen adopted by his eldest uncle. The second son, Fan Yuan, had never


worked at a real job, so his mother had petitioned the government to havehim deported to Guangdong. The petition asks whether Fan Gui might bereleased to care for her, in accordance with the sub-statute governing re-lease of a sole son for purpose of caring for a parent [Article 18–2; Code1:358–359; DLCI 2:62].

On investigation we find that the sub-statute governing the release of asentenced criminal for the purpose of caring for a parent requires that hemust be an only son. On review, finding that the circumstances of FanGui’s crime were rather light, only then did we allow further inquiry andprocessing of his mother’s petition.

In this case, Mrs. Fan nÈe Wang gave birth to three sons. As for FanBao, who had been adopted, he could be ordered to return to his natalfamily, and Fan Yuan, who had been deported, has just benefited from animperial amnesty, so that he too could be ordered back to his native place.Naturally, we cannot disregard these two sons in order to enable the sonwho had committed a crime warranting a severe penalty to remain hometo care for his mother. Moreover, the facts of Fan Gui’s original crimecalled for the sentence of death by decapitation under the statute govern-ing beating one’s mother; such facts do not warrant the application of thesub-statute provision allowing a son to remain at home to care for a par-ent. Even if he had truly been an only son, it would still not have been al-lowed. After investigation, the BOP senior officers had directed that thepetition be rejected (Jiaqing 25, Memorandum).

Subsequently, in the twelfth month of the first year of Daoguang, weagain received a petition presented at the BOP by Mrs. Fan nee Wang; thepetition stated that she had observed vows of chastity for more than twentyyears, that her third son had died, and that her second son, Fan Yuan, hadindeed been deported. Moreover, he is truly an unfilial rascal; if he were re-leased and returned home, he would behave wildly. Hence, she requeststhat her eldest son, Fan Gui, be allowed to remain at home to care for her.

This Board notes that Fan Gui has already survived two assizes at whichhis sentence was classified as correct; subsequently, his classification waschanged to “deserving of commutation.” Further, noting that there is no di-rectly pertinent sub-statute, we cited a case precedent from Jejiang involving aslave named Long, and submitted a palace memorial to the emperorproposing approval of the petition. An imperial decree was received allow-ing Fan Gui to remain at home to care for his mother.



Case 6: Feng Kaiku (1825)

[XAHL 1:360, lines 7–11]The department for Fujian Province of the Board of Punishments triedand handled a case in which Feng Dacheng, the father of the criminalFeng Kaiku who had been sentenced to banishment, filed a petition priorto his son being sent to his place of banishment, requesting that the son beallowed to remain at home to care for him.

On investigating, we note that allowing someone who commits a crimeto remain at home to care for a parent represents extralegal clemency. Toqualify, the criminal cannot have a younger brother. If the criminal doeshave an older or younger brother or son or grandson at home, that personmust genuinely be crippled or disabled to the extent that he is unable toearn a living. Only then will the criminal be allowed to remain at home tocare for his parent.

As for epilepsy, the statutes and sub-statutes do not in fact contain lan-guage that treats it as disablement. Moreover, no case like this has ever beenhandled before. In truth, persons with epilepsy usually function normally.When an epileptic episode happens, the individual gradually gets betterand better over time. Their condition is different from those who are crip-pled or disabled and hence unable to earn a living. Furthermore, on read-ing the original report in this case we find only sworn written statementsby the local constable and by the neighbors to the effect that the criminal’sbrother, Feng Yi, developed epilepsy at the age of 22 and lost conscious-ness. How do we know that the constable and neighbors were not in collu-sion to enable Feng Kaiku to petition to remain at home to care for hisparent? It would seem inappropriate on the basis of the report willy-nillyto approve the request that the criminal be allowed to remain at home tocare for his parent.


Case 7: Hou Santing (1795)

[XAHL 3:1017, lines 6–13]The Department for Zhili Province of the Board of Punishments has in-vestigated and found a sub-statute which stipulates that in robbery casesinvolving also homicide, arson, rape of a wife or daughter, breaking intoand plundering jails or government storehouses or infringing upon city


walls, moats, or county government buildings, where as many as one hun-dred persons participate, the punishment is immediate decapitation withdisplay of the head without regard to whether the individual has receivedany loot.23 As for criminals who remain outside looking and later receivesome of the loot but who do not actually enter the building to removeproperty, the sub-statute contains no language barring the submission of arecommendation for clemency based on extenuating circumstances.

On investigation, we have discovered that in a case arising in the seven-teenth year of Qianlong [1752] a Shensi Province robber named Fan Xihoand others robbed the Hu County government offices. A member of thegang named Feng Dacheng, together with others, stayed outside to keepwatch and act as scouts. This Board reasoned that the pertinent robberysub-statute distinguishes between criminal facts making amnesty difficultand criminal facts where there are extenuating circumstances; the case didnot involve the clause barring distinction in punishment because of in-fringement upon city walls, moats, or county government buildings.Hence, we sentenced Feng Dacheng and the others to deportation in ac-cordance with the sub-statute authorizing exemption from the deathpenalty.

In the present case, Hou Santing followed Wang Da and others in plun-dering the government offices of Juli County. The said offender [Hou]waited outside to receive his share of the loot. Another one waiting with himto receive loot was Zhao San who, because of his having previously robbedLi Zhuocheng and other residents of Wei County, was tried and sentencedto immediate decapitation. As for Hou, as he had not previously been in-volved in a robbery case, the Governor of Zhili issued a provisional sen-tence of deportation under the sub-statute authorizing exemption of arobber from the death penalty when there are extenuating facts. On re-view, we find that the governor’s provisional sentence is consistent bothwith the spirit of the pertinent sub-statute and with the case precedent ofFeng Dacheng who was sentenced to deportation. It seems appropriate toissue a confirmatory reply to the governor.

The senior officials of the BOP affixed the comment that it seemed thatall the offenders should be sentenced to immediate decapitation and dis-play of the head pursuant to the first and last clauses in the governing sub-statute. However, since there is a case precedent, we have no choice but to fol-low it.

Qianlong 60, Memorandum


Case 8: Gao Daxian (1823)

[HAHL 5:1940, lines 5–14]The Censor for Southern Beijing referred to the Board of Punishments acase involving Liu Xiunglin, who died from wounds. On investigation, wefind that in this case, the deceased Liu Xiunglin went with Gao Daxian tolive in a dwelling they rented from Wang Datong. Liu became ill with ahigh fever, becoming troublesome and wild, running naked and jumpinginto the neighbor’s yard. Gao Daxian and others managed to get him backinto the house with force. Liu was not willing to get on to the bed; hebegan to swing his fists wildly and shout loudly that he was determined togo out again. Wang Datong was afraid that he would indeed run out againand cause trouble, so he ordered Gao Daxian and the others to tie Liu’shands and force him back on to the bed. Because Liu cursed and struggledmightily, Gao kicked him in various parts of his body, finally subduinghim; later that night Liu died. Investigation revealed that Liu died from hiswounds. We have reviewed the records in this case and conclude that,while Liu and Gao did not actually fight, Gao kicked Liu because he waswildly thrashing around.

Now, Gao has testified that it is true that he kicked and injured Liu.Moreover, the coroner’s inquiry has revealed that Liu’s death was causedsolely by the wounds he received from Gao. Naturally, we should sentencethe offender to atone with his life in accordance with the statute governinghomicide committed during an affray.24 It seems difficult to reduce hissentence. The sentence recommended by the said department, strangula-tion after the assizes, seems fair. The case should be handled accordingly.Moreover, we find in the records a case from Shandong Province whichwas referred to the president of the BOP, who stated in a comment on theGao case that “Inasmuch as research has revealed that there is a case prece-dent in Shandong, we can only follow that precedent (zhi ko zhao ban).Quickly call a meeting of the three legal tribunals and submit a memorialto the emperor within fifteen days. Moreover, this decision should be en-tered into the records. At the time of the spring assizes (chao shen), if noevidence of a fight is discovered, it would seem appropriate to categorizeGao’s offense as worthy of compassion (ko qin).”

Daoguang 3, Memorandum from the Jiangsu Department of the BOP in aCase Arising in Beijing


Case 9: Li Ming (1829)

[HAHL 3:1212, lines 13 to 1213, line 4]The Department for Yunnan Province of the Board of Punishments re-ports: We have investigated a case in which Li Changsheng and ZhaoShengan, individuals with different surnames, both temporarily resided ina hideaway where they were trying to avoid contracting a contagious dis-ease. They definitely did not constitute a single family. Their individualproperty should be restored to each individual owner. After their dwellingwas robbed and they reported the crime to the authorities, naturally thelatter should have distinguished which person lost what property andshould have determined what was the monetary value of the propertyand, based on the total value of the property belonging to the victim whohad lost the most, should have calculated the thief ’s criminal punishment.Instead, the said governor failed to distinguish the clothes belonging to thetwo separate households and to estimate their separate value. Instead, hemistakenly lumped together the total value of the stolen goods, roughlyestimating it to be around 120 silver taels, and submitted a draft sentenceof strangling according to the statute governing stealing from persons in asingle family.25 The two theft victims were definitely not members of thesame family, so the governor should have distinguished the amount ofgoods stolen from each victim. Instead, he said the victims lived in thesame home, entering and leaving by the same door; hence, they were justlike members of a single family. The governor’s draft sentence of stran-gling was seriously in error. In this case, Li Ming stole goods from twotheft victims who lived in the same building. On review, we find the facts ofthis case similar to the Jejiang case in which Wang Yongxian stole propertyfrom two theft victims on the same boat, Hu Yiyu and Yao Miaoli.26 Natu-rally, we should handle the cases uniformly. The decision is hereby reversedand the governor is ordered to submit a revised draft decision.


Case 10: Yang Cheng (1802)

[HAHL 3:1203, lines 11 to 1204, line 1]The Sichuan Department of the BOP tried and prepared a draft sentencein a case in which Yang Cheng, the son of Yang Qilung, a runner in the


Board of Rites, stole a draft document. The department’s research revealeda case arising in the sixth year of Jiaqing, in which Zhou Si stole a boundbook of archives from the Board of War; and another case arising in Ji-aqing 14 [sic] in which Kong Fumao stole an old document draft from theBoard of Civil Appointments. The offenders in both cases were sentencedto military banishment in accordance with the sub-statute governing ad-ministrative staff stealing from government offices.27

In the present case, Yang Cheng is the son of a Board of Rites runner,Yang Qilong; he lived in government quarters with his father. The said of-fender stole an old document draft from the Department of Ceremonies,planning to sell it for money to spend, but he was caught immediately bythe gatekeeper.

The Sichuan Department sentenced the said offender under the sub-statute governing administrative staff stealing from government offices, tomilitary banishment at the most distant frontier, a distance of fully 4,000li. On review, we find the decision is consistent with the case precedents sowe should request that the case be handled accordingly (hu yu chengan xi-angfu, ying qing zhao ban).

Jiaqing 7, Memorandum

Case 11: Censor’s Proposal for Statute to Resolve Conflict in Case Precedents (1833)

[HAHL 7:2939, lines 6 to 12]The Censor for the Jiangsi Circuit has submitted a palace memorial statingthat where someone falsely accuses another person of having committed acrime punished by blows of the light bamboo the false accuser is given apunishment two degrees more severe; where someone falsely accuses an-other person of committing a crime punished by banishment, penal servi-tude, or blows of the heavy bamboo, the false accuser is given a punish-ment two degrees more severe. A false accusation of a crime punished bymilitary banishment is itself punished by military banishment. With re-spect to false accusations of a variety of different crimes where the specialprovision governing such crimes prescribes the additional punishment ofplacing the offender in a cangue, the provinces have not been uniform inprescribing the cangue for false accusers. It would appear desirable to de-liberate and establish a uniform rule.


We have investigated and found that in the criminal code section contain-ing laws on litigation procedures there is explicit language only with re-spect to how to punish persons who have lodged false accusations ofcrimes punished by military banishment or by blows of the light or heavybamboo, banishment or penal servitude. There is no statute stating thatone who falsely accuses someone else of a crime for which the cangue isprescribed should himself also be placed in a cangue. Those who presideover criminal trials obviously should not go beyond the language of thegoverning statute to impose harsher punishment. Thus, we have neverheard of a judicial practice of uniformly tattooing those who falsely accusesomeone else of a crime for which the statute prescribes tattooing. Simi-larly, one can properly infer that it is not necessary uniformly to place inthe cangue persons who falsely accuse others of crimes for which thecangue is prescribed as an additional punishment.

However, previously decided cases have handled the matter in two differ-ent ways. Naturally, the meaning of the statute should be clearly an-nounced by the enactment of a provision specifically governing the mat-ter.

The senior legal officials in the capital have jointly deliberated and haverecommended that the emperor adopt a rule that henceforth, in order toachieve uniformity in all cases involving false accusation of a crime wherethe special provision prescribes the cangue, the false accuser should begiven the enhanced punishment stipulated by statute for false accusationof crimes whose penalty ranges from the light bamboo to military banish-ment. In no case shall the false accuser be subjected to the cangue.

Daoguang 13, General Circular

n o t e s

1. Thomas A. Metzger, The Internal Organization of the Ch’ing Bureaucracy,Cambridge, MA, Harvard University Press, 1973.

2. Preface dated 1877, Peking. W. F. Mayers, The Chinese Government, Kelly &Walsh, London, 1897.

3. For example, see the Qianlong Emperor’s 1740 preface to the revised penalcode. Code 1:13.

4. In 1992, when she was a doctoral candidate at the China University of Polit-ical Science and Law, Ho Min joined me at Columbia Law School as my research


assistant, where she conducted a thorough search of the 1,523 criminal cases re-ported in the Xingan Huilan, finding references to 360 chengan.

5. The Xingan Huilan, hereinafter referred to as XAHL, is a collection of sev-eral thousand appellate decisions in criminal cases, selected from the archives ofthe Board of Punishments in Beijing, the central reviewing authority for draftcriminal judgments reported to the capital from all over China. Compiled by ex-perienced Qing legal officials during the Daoguang period, two continuation se-ries were published later in the nineteenth Century. My citations are to the reprintedition issued by the Chengwen Publishing Company in Taibei in 1968.

6. In The Spirit of Traditional Chinese Law, Geoffrey MacCormack concludesthat while central and provincial courts in the Qing were not strictly bound “. . . bydecisions of its own or by those of a superior tribunal, [they] . . . did from time totime rely on decisions of the Board as pointers to the correct decision to bereached in a particular case”; The University of Georgia Press, Athens & London,1996, p. 175.

7. Qingdai Sifa Shenpan Zhidu Yanjiu (A Study of the Qing Dynasty Adjudica-tion System), Hunan Education Press, 1988, p. 157.

8. Id.9. Id, p. 158.10. The goal of “uniformity” (hua-yi) is a persistent theme in Qing law. For

example, the first sub-statute under Article 415 states that in trying cases and inproposing sentence governors- general and governors must carefully weigh thefacts and the proposed punishment and memorialize a draft judgment that willachieve uniformity. Code 5:3716 (all citations to the Qing penal code are to the 5-volume reprint edition issued in Taibei by Wen Hai Press in 1964). See also XueYunsheng’s Du Li Cun Yi (Doubts on Reading the Sub-Statutes), a key Qing lawreference work—I cite the 5–volume edition edited by Huang Jingjia, published inTaibei in 1970 by the Chinese Materials and Research Aids Service Center, here-inafter cited as DLCI.

11. Cf. Zheng Qin, supra note 7.12. The qing shi system (still used in the PRC today) is a long standing practice

of China’s bureaucratic system in which provincial officials deferred to higher lev-els in complex situations where statutory guidelines were non-existent or ambigu-ous or where relevant case precedents conflicted with one another. From the sub-ordinate official’s viewpoint, deference to superiors was wise when a single honestmistake might result in impeachment and dismissal from the civil service. Despitethe fact that this practice took time and created a vast amount of paper work, itdid promote centralization of policy formulation and consistency of statutory in-terpretation, both worthy goals from the central government’s point of view.

13. Compare MacCormack’s suggestion that the existence of precedents(chengan) “. . . might even be known only to the originating province and the


Board itself.” Supra note 6, p. 176. This case suggests that knowledge of and re-liance upon case precedents may well have been nationwide.

14. Article 162–6; Code 2:1415–1417; DLCI 3:423.15. See Mayers, supra note 2, p. 98.16. Article 22; Code 1:409; DLCI 2:91.17. I find no such sub-statute in the code. However, in Article 23 itself there is

a clause which extends the benefit of monetary redemption to individuals servinga three year sentence of penal servitude if they turn 70 during that period. Hence,it was reasonable for the judges of the time to extend the same benefit to offenderswho turn 70 after their crime is discovered but before they begin serving a sen-tence of banishment or penal servitude. An unofficial commentary by Shen Zhiqi,in the upper portion of Code 1:419, draws a similar conclusion.

18. This case is summarized in the upper portion of Code 1:419–420, justabove the text for Article 23, the basic statute governing the Wu case.

19. Article 18.20. Article 176; Code 2:1481; DLCI 3:440.21. The BOP apparently applied sub-statute 319–7 (Code 4:2827–2828; DLCI

4:956).22. This claim is obviously dictated by a statutory prerequisite for the

clemency sought, found in sub-statute 18–2 (Code 1:358–359; DLCI 2:62). Read-ing between the lines, I think it is reasonable to infer that Mrs. Fan, and some ofthe other individuals whom we meet in these cases, was carefully coached byanonymous lawyers whom the government tried vainly to suppress. For an impor-tant study of the social importance of the Qing lawyers who operated dangerouslyon the border of legality, see Melissa Macauley, Social Power & Legal Culture: Liti-gation Masters in Late Imperial China, Stanford, CA, Stanford University Press,1998.

23. Article 266–1; Code 3:1959; DLCI 3:589.24. Code 4:2497; DLCI 4:829–830.25. I am unable to find this statute.26. The Board’s decision in the Wang Yongxian case is reported in the Xingan

Huilan immediately after the current case, which cites it. See XAHL 3:1213, lines5–10.

27. I am unable to locate this sub-statute.


6

The Comparative Law School of China

Alison W. Conner

Introduction

American law schools increasingly emphasize the study of internationaland comparative law, and many now offer international programs to traintheir students for work in the global community.1 Yet one of the most suc-cessful comparative programs was established in Shanghai in the earlyyears of the twentieth century and reached its height during the 1930s—atime when by contrast the study of comparative law in the United Stateshad “fallen into low estate.”2 Soochow University Law School, one of thefirst and most influential professional schools of the Republican period,was founded as China embarked on a fundamental program of legal re-form and modernization. Known throughout its life in Shanghai(1915–1952) as the “Comparative Law School of China” [CLS], Soochowoffered a unique program of professional and comparative law study,preparing its graduates to move easily between two very different legalworlds. According to one American visitor, Soochow was “the only schoolI know which really deserves the name of a comparative law school.”3

Although it was closed nearly fifty years ago, Soochow remains of inter-est for its ties to American legal education as well as its comparative pro-gram. The school was founded by Americans, taught Anglo-American law,and continued to maintain an American model of education, even afterincreasing regulation by the Chinese government. Soochow lived throughturbulent times and its law program underwent frequent revisions. Butdespite outside pressures and through many curriculum changes, itsteachers held to their belief in the value of comparative law study and re-tained a special place for Anglo-American law in their program. The pur-

210

pose of this article is to analyze that program: What did comparative lawmean to the school’s administration and faculty, and why did they chooseit as their defining feature? Since Soochow’s curriculum is central to anyconsideration of those topics, this essay will discuss its development dur-ing the school’s earliest years, at the height of its comparative programand finally during the wartime years of the forties.4 The essay will alsooffer an assessment of the program’s benefits and drawbacks; was it usefuland practical for its day? The conclusion will summarize Soochow’sachievements and consider the potential relevance of its program to con-temporary Chinese legal education. Since China has once again embarkedon an ambitious program of legal reform, and legal education has beenreestablished in a major way, Soochow’s approach may now be of practicalas well as historical significance.

The American Model, 1915–1927

Soochow’s Founding and Its Comparative Goals

The Comparative Law School was founded in Shanghai in 1915 andopened its doors as the Law Department of Soochow University (DongwuDaxue Fake),5 an American university in nearby Suzhou.6 Its founder,Charles W. Rankin, was a Tennessee lawyer and missionary then teachingpolitical science at the University. When in 1914 the University sent him tohead its middle school in Shanghai, he was also given the freedom to ex-plore other educational possibilities, so long as he did not involve them inany “unauthorized expenditure.”7 What he found in Shanghai was a “God-given opportunity to render an outstanding service to the young Repub-lic,”8 and in China’s most important commercial and industrial center, allthe resources with which to provide it. Rankin’s idea was to establish a lawschool for Shanghai students by using the facilities of the University’smiddle school at night and recruiting foreign lawyers and judges fromShanghai’s International Settlement as its teachers.9

The Law School had its origins, he wrote, because of two considera-tions: “a deep appreciation of what the profession of law had meant tomankind in the past” and “the great need of China for lawyers, for lead-ers.”10 During the early twentieth century, the Chinese government hadembarked upon a major program of legal reform and modernization,aimed at replacing its traditional administration of justice with a modern

The Comparative Law School of China 211

legal system both suited to China and acceptable to the Western powers.11

Establishing modern legal institutions and laws in China would clearly re-quire training for judges and lawyers, but China had no tradition of for-mal legal education12 and the government had granted recognition to pri-vate lawyers for the first time in 1912, only a few years before.13 Rankintherefore believed that a law school would contribute to the creation ofthe new Chinese legal system and that Shanghai, with its patchwork ofcourts and legal regimes, would offer many worthwhile opportunities forthe school’s graduates.

Fortunately for Rankin—and for the school—from its inception hisscheme had the enthusiastic backing of Charles S. Lobingier, who servedas Judge for the U.S. Court for China from 1914 to 1924 and was “largelyresponsible for the successful inauguration of the whole enterprise.”14

Lobingier was a comparative and Roman law expert who had spent tenyears as a judge in the Philippines, where he helped to found a new lawschool to teach American and Philippine law in English.15 On his arrival inChina, he “took note of law school possibilities” and soon concluded that“the way to begin would be to teach foreign legal systems to Chinese youthand let them later select materials therefrom for their new legal system.”16

Lobingier envisioned a broader comparative program for this new ven-ture; it was he who suggested the name “the Comparative Law School ofChina,” and the school’s literature in its earliest years reflected his belief inthe value of comparative law study.17 According to a 1919 catalog, the “aimof the school is to give the students a thorough mastery of the fundamen-tal principles of the world’s chief legal systems, an important object beingto turn out students who can contribute to the making of new and betterjurisprudence for China.”18

Lobingier’s views were reinforced by the involvement of Chineselawyers such as Wang Chung-hui (Wang Chonghui) at an early stage ofthe Law School’s development. Wang, an expert in international and com-parative law, was a graduate of Peiyang University (a school with manysimilarities to Soochow) and had studied in both the United States andEurope; he taught at the CLS from 1915–18. One of the most distin-guished Chinese jurists of his generation, he later served as Minister ofJustice, as a deputy judge of the International Court of Justice and as adrafter of the Chinese civil and criminal codes.19 Wang emphasized the“scientific value of comparative law” in his writing, and he translated theGerman Civil Code into English in the hope it might encourage an “inter-est . . . in the study of comparative law among common law specialists.”20

212 a l i s o n w. c o n n e r

Rankin was succeeded as dean by another American, W.W. Blume, amember of the Texas and Shanghai bars who held that office from 1921 to1927 and then returned to a long career as a legal academic in the UnitedStates.21 Like Rankin, Blume thought that Soochow’s goal should be “toturn out men who can contribute to the making of a new and better ju-risprudence for China,”22 and during his tenure as dean he did much toprofessionalize the Law School and raise its standards. He too was a strongbeliever in the value of comparative study, a view often reflected in his ar-ticles and speeches, and in his founding of the school’s law journals, whichalso promised a comparative focus. According to Blume, the first and mostbasic problem facing law schools in China was how to provide studentswith a “legal education suited to the needs of the country.”23 Soochow’sanswer was comparative law: “[o]nly by a system of laws worked out bycomparison of the indigenous laws of China with those of the modern na-tions, can China best govern herself and at the same time bring her legalsystem in harmony with the modern industrial and commercial world.”24

Neither Blume nor his colleagues advocated a simple transplantation ofthe laws of any particular country to China, but only argued for the studyof other laws that could help China develop its own modern legal sys-tem.25 They believed it was useful, even necessary, at that early stage of re-form for Chinese legal experts to look to foreign models for inspirationand guidance, and that foreign and comparative law would therefore con-stitute a natural course of study.

Soochow’s Early Curriculum

A key feature of the program they implemented—and its comparative ap-proach—was the teaching of “Anglo-American law,” which Soochow’sfounders and their successors generally preferred to the term “commonlaw.”26 The CLS educational model was essentially American from the be-ginning, and during the school’s first decade, its curriculum most closelyresembled an American law school, consisting almost entirely of commonlaw courses taught in English by American-trained lawyers. Students wereadmitted to a three-year course of instruction after a minimum of twoyears of undergraduate study, and the CLS taught all the standard coursesof the day, including property, contracts, torts, criminal law, civil and crim-inal procedure and corporate and commercial law.27 Since the faculty wassmall and only a handful of students graduated every year, all courses wererequired and the curriculum included virtually no electives.28 Teaching


began at 4:30 in the afternoon and the school was housed in very simplefacilities, which it initially shared with the middle school.29

Despite the school’s pronouncements, this early curriculum offered lit-tle in the way of actual comparative law study. The first “civil law” or com-parative law course taught at Soochow was Roman Law, which the schoolintroduced at the behest of Judge Lobingier in 1915, and which he alsotaught. According to Lobingier, the course was necessary if Soochowwished “to train for the bar students who shall be jurists as well as practi-tioners.”30 He believed that the greatest service of Roman law study was toprepare the law student for the study of his own law, and it was “chieflyvaluable to him as an introduction to the latter.”31 But he also viewed it asa comparative course with special value for common lawyers: as a sourceof fundamental legal conceptions as well as specific doctrines and legalterminology.

The first students to graduate from Soochow (the class of 1918) tookalmost no courses in Chinese law.32 But Blume believed that the school’scomparative program should include a comprehensive study of Chineselegal institutions as well as “serious study of Western systems in their na-tive tongues,” which would provide the basis for the creation of China’sown modern codes.33 It was during his tenure as dean, therefore, that Chi-nese law courses were introduced into the curriculum and the first groupof Soochow’s own graduates were hired as instructors on their returnfrom study abroad.34 The CLS began adding a few courses in Chinese laweach year from 1923–1924, an event important enough to be noted in thestudent yearbook.35 In 1925, the school taught slightly more Chinese lawthan before, including, for the first time, a course labeled “Chinese CivilLaw.” The Law School still listed no separate electives through 1926–1927,and overall the curriculum changed little. But with the introduction ofthose first Chinese law courses, Soochow began moving toward a kind of“dual-track” program, in which the laws of the two systems were taughtside by side. Although Professor Hudson was impressed to learn that “in-struction in the national law is given on a basis of comparison with Anglo-American and civil law,”36 in those days the courses were really taught sep-arately, with students left to make the comparison themselves.37 As a twen-ties graduate later wrote, “[i]t is obvious that the School was styled Com-parative for no other reason than that mixed courses of Chinese andAnglo-American laws were given. In fact we studied different kinds of lawsjust as they were; we did not go a step further [i.e., conduct serious com-parative study of them].”38


Thus, Soochow’s early program was more American than comparative,but its goals were definitely more ambitious. From the very first day, it haddeclared itself the Comparative Law School—not the Anglo-AmericanLaw School—of China, and its founders and teachers aspired to providebroad legal training for their students. Soochow’s rationale, goals andteaching approach all had comparative aspects. With the introduction ofChinese law courses in the mid-twenties, the Law School’s training wasprofessionalized and its program did in practice become somewhat morecomparative. But it was only in the next dozen years that the school’s pro-gram caught up with its goals.39

Soochow’s Broader Comparative Program, 1927–1939

When the CLS was founded, few government regulations were strictly en-forced and consequently schools had great freedom to experiment. In sucha laissez-faire atmosphere, and with no traditional models to fall back on,many early Chinese law schools looked to foreign (usually Japanese) mod-els, used foreign textbooks and hired instructors trained abroad.40 Butwith the enactment of new or amended versions of the major Chinese lawcodes in the late twenties,41 most law schools moved away from the teach-ing of foreign or “comparative” law. At the same time, greater governmentregulation of higher education after 1928 resulted in closer supervision oflaw school curriculums, and the Nationalist government increasingly en-forced minimum requirements for all recognized law programs.42 Soo-chow increased its teaching of Chinese law to reflect those developments,but it continued to emphasize Anglo-American and comparative law. TheCLS also entered a period of expansion, with a larger faculty and higherstudent enrollments, enabling the school to offer its students more com-parative courses and a greater choice of electives.43 Indeed, it was duringthis period that Soochow developed its most truly comparative program.

Localization and Comparative Law

As part of its “long-cherished policy” and anticipating changes in govern-ment regulations, the University in 1927 “localized” its administration,naming a Chinese dean (jiaowuzhang) and principal (yuanzhang) for thelaw school, both CLS graduates who had studied in the United States.44

The support of Soochow’s new Chinese administration was essential to


the continuation of the school’s comparative focus and goals.45 Its princi-pal, a new position created in 1927, was John C. H. Wu (Wu Jingxiong,class of 1920), a brilliant lawyer and scholar who was already one of theLaw School’s most famous graduates. Wu had studied in Paris and Berlinas well as in the United States and moved as easily between those differentlegal systems as he did between his positions (as judge, teacher, legalscholar and drafter) in the Shanghai legal world of the day. By virtue of histraining and experience, Wu embodied the Law School’s comparative idealand had already showed himself “a master of various systems of law, and Iknow of no one who has been better prepared to become the head of acomparative law school.”46 Not surprisingly, Wu taught his jurisprudenceand legal philosophy courses in both English and Chinese and usuallytook a comparative approach when teaching them.47

But the key person in the development of Soochow’s comparative lawprogram during this period was its new dean, Robert C.W. Sheng (ShengZhenwei), who tended to the practical work of running the school andoversaw its day-to-day operations.48 A 1924 graduate of the CLS, Shengserved in the school’s administration until 1949, later succeeding John Wuas principal.49 He had studied at Northwestern University with JohnHenry Wigmore, a champion of comparative law as well as an expert inthe law of evidence (he was still dean when Sheng was a student).50 Deeplyinfluenced by his teacher and mentor, Sheng took a broad view of the na-ture and value of comparative law study. Throughout his tenure at Soo-chow, Sheng encouraged the study of comparative law, and he clearlyviewed it as the mission, not simply the tradition, of Soochow LawSchool.51 The Law School’s policy, which Sheng encouraged, of presentingthe broadest curriculum possible could lead to some dubious offerings: aJanuary 1933 notice announced the introduction of a course on “ItalianFascist Corporative Law,” which was described as the “fundamental or-ganic law of the Fascist system and a most original and expressive politicalconception.”52 But Sheng maintained that the Law School should be freeto teach all kinds of law, including Soviet or fascist law; one did not haveto agree with everything taught—“just see what it is and then criticize it ifyou want to.”53

Dean Sheng also worked to build Soochow’s comparative law library,originally a small affair consisting mainly of miscellaneous donations. By1930, however, the school’s library contained some 10,000 volumes in Chi-nese, English and other European languages.54 Five years later, the libraryhad grown to “more than 20,000 volumes purely in law subjects” and was


proudly described in law school bulletins as “one of the best in the FarEast.”55 According to Sheng, the library was then “far better than anythingto be found in Manila or Tokyo,”56 and indeed, the library’s catalogs dur-ing the mid- to later thirties list relatively large holdings in American andEnglish sources in addition to the standard Chinese volumes. Soochow’slibrary also held a fair number of French, German and Japanese sources,including law journals as well as books, and at least a small number ofbooks on “other foreign laws.”57

Sheng’s belief in the importance and value of comparative law wasshared by other members of the administration and faculty, such as Shel-ley Sun (Sun Xiaolou, class of 1927 and another Northwestern graduate),who taught at the CLS and also served as associate dean from 1932 to1939.58 Writing in 1935, Sun argued that comparative law study was neces-sary in an increasingly interconnected world; the development in China ofnew law based on legal principles (fali) might also require a review of for-eign developments.59 For Sun, as for many of his colleagues, the ultimatepurpose of such study was the improvement of Chinese law and not sim-ply the study of foreign law for its own sake. He thought comparative lawwas especially important in China, where foreigners had long justifiedtheir refusal to abandon extraterritorial privileges by arguing that Chineselaw was unsuited to the modern world. If Chinese lawyers studied the lawof other countries, Sun argued, they could improve Chinese law andthereby overcome those foreign rationalizations.60

Sun’s colleagues during these years included other distinguished com-parative and foreign law specialists, representing an unusually broad rangeof expertise. Although there was as yet no formally designated “Anglo-American law” faculty,61 the school’s core faculty members continued tobe common-law trained, most of them CLS graduates who had returnedto China from study abroad. But the late twenties also saw the appoint-ment of judges and former judges to the faculty, some of them educated inJapan, as most early Soochow graduates were better in common law thanChinese law courses. Many instructors, now an expanded and more cos-mopolitan group, had also been trained in continental as well as commonlaw subjects, having studied in both Europe and the United States. FrancisLiu (Liu Shifang), for example, a prominent Shanghai lawyer who earnedhis LL.B. from Yale and then pursued graduate study in Germany, taughtSoochow’s main course on German civil law for many years.62 By the earlythirties, the CLS faculty numbered more than thirty, although the major-ity taught only part-time.63 Although after 1927 most Soochow instructors


were Chinese, the Law School often invited foreign experts in Shanghai toteach specialized foreign or comparative law courses in its programs.Thus, during the early thirties Swiss civil law was usually taught by a Swisslawyer and former secretary to the League of Nations; in the mid-thirties aGerman from the Prussian police academy taught the course in Germancriminal law, and a second German instructor (who had qualified in bothGermany and England) taught civil law in the school’s graduate division.64

Soochow’s New Curriculum

Soochow’s comparative program reached its height from 1927 through1939, when the school was still requiring five years of study, in one formor another, to earn an LL.B. degree. From 1927 until 1931 (as in earlieryears) the CLS taught a three-year law program and required students tocomplete at least two years of college-level study for admission.65 The1927–1928 academic year was transitional, with a high percentage of com-mon law courses and many others taught in English with American case-books and textbooks. Despite the addition of Chinese law courses, nearlyseventy percent of the curriculum had foreign or comparative content,and even courses in Chinese civil law and judicial administration took acomparative approach, at least according to their course descriptions.66 In1932, after some experimentation with a pre-law course taught either inShanghai or at the University in Suzhou, the CLS adopted an integratedfive-year program of general college-level and law courses taught at theLaw School in Shanghai.67 From then until 1937, the school required oneyear of introductory courses and devoted the remaining four years to lawcourses, which left great scope for comparative law study.68 By the earlythirties, the school was advertising its program to include courses in (1)Chinese law, (2) modern continental law (French, German, Japanese andSoviet Russian civil law), (3) Anglo-American law, (4) Roman law and (5)both public and private international law.69 More generally, the LawSchool saw its program divided into the “three fields of Chinese law,Anglo-Saxon law and Continental law,”70 a division reflected in its catalogsthroughout those years.71

Chinese Law

After the enactment of the major Chinese codes, Soochow offered or re-quired substantial courses in all important areas of substantive and pro-


cedural law. In 1927 Soochow was already teaching a total of ten Chi-nese law courses, and by 1932 the school required five year-long courseson civil law (including obligations, property and family); three semes-ters of civil procedure law; year-long courses in criminal law, criminalprocedure and constitutional law; and another eight one-semestercourses, mostly in Chinese business and commercial law.72 By that time,Soochow’s coverage of Chinese law compared favorably with programsat many other law departments or colleges. The school was not offeringits students much less in the way of Chinese law preparation thanschools without a comparative program73—a bit of a squeeze in threeyears but much easier when the school required four years of law study.For the most part, Soochow’s instructors taught these Chinese lawcourses in the same way as at other schools, using mimeographed orprinted materials (jiangyi) along with the text of the codes—the stan-dard teaching method for Chinese law then (or in any civilian system ofthe day)—and they did their best to prepare students for law practice inChina.74

Anglo-American Law during the Thirties

Even after 1927, however, common law remained Soochow’s specialty, andthose courses, now formally designated “Anglo-American” to distinguishthem from Chinese law subjects, still constituted a substantial portion ofthe curriculum.75 The core Anglo-American law courses, always part ofthe required curriculum and ordinarily for a full year, were Contracts andTorts, supplemented by some combination of other basic courses. Duringthe late thirties, for example, the school also required one-semestercourses in Property, Equity, Family Law and Succession. A few other re-quired courses retained an essentially common law perspective during thisperiod and should really be considered part of the school’s Anglo-Ameri-can core curriculum. This group certainly included Elementary Law(faxue tonglun), a general introduction to law study still offered during theearly thirties,76 and Conflict of Laws, which was usually taught in Englishwith an American text.77 It could also include Jurisprudence, dependingon the instructor, and Legal Ethics, which—owing to the school’s concernwith professional ethics—was almost always a required course.78 It couldeven include Evidence. Although that “peculiarly common law subject”79

was sometimes offered as an elective at other Chinese law schools,80 atSoochow it was a continuation of the early common law course rather


than a later civil law introduction, and Dean Sheng taught it using Wig-more’s casebook.81

Many of Soochow’s other common law courses did not disappear fromthe curriculum, but remained as electives. The school continued to teach arange of Anglo-American electives, mostly in business and commerciallaw; ten to thirteen such courses were listed in every catalog, though notall of them were offered every year. In 1932–1933 they included courses inAgency, Damages, Equity, Persons, Sales, Trusts, Corporations, Succession,Property, Public Utilities, Suretyship and Transportation.82 Although mostof the curriculum was still required and students carried heavy course-loads, they still had room for a few of these common law courses. In 1932,when the CLS required all students to take two semesters of common lawelectives, “students who hold good scholarship” were also permitted to en-roll in a few more Anglo-American law courses as free electives.83 With alittle juggling of schedules, therefore, Soochow students in the thirtiescould complete a substantial number of Anglo-American courses, includ-ing the commercial law most valuable to a Shanghai law practice.

The CLS continued to teach all its Anglo-American courses in Englishwith the standard American casebooks, many of which the instructors hadused in their own student days.84 That made for a distinctive style ofteaching, which other law schools could not replicate even when their cat-alogs advertised comparative or even “common law” courses. In short,Soochow’s Anglo-American law courses were taught primarily not ascomparative but as domestic law: in the original language by peopletrained in the system. As a result, by the early thirties Soochow’s programhad become more evenly balanced and “dual-track,” and its students re-ceived a solid grounding in both Chinese and Anglo-American law.

Comparative Law Courses

Soochow also offered a much broader range of general comparativecourses during these years, most of which focused on continental Euro-pean law. Although the school had introduced a few such courses in thelate twenties, this comparative emphasis peaked during the mid-thirties(1932–1937), when the CLS required its students to take full-year coursesin German or French civil law and in comparative civil law, and one-se-mester courses in comparative constitutional and criminal law. Studentscould choose from electives in French, German, Japanese, Swiss and Soviet


law, as well as from more general comparative courses. Many instructorsused at least some foreign-language materials; the German civil lawcourse, for example, assigned materials in German in addition to Chineseand English.85 CLS instructors also encouraged students to write theirlegal essay (a graduation requirement) on comparative or foreign law top-ics, and many of them did so. Early students usually wrote their essays inEnglish on common law subjects, but later they often submitted them inChinese on a wider range of legal topics, some merely foreign but othersmore explicitly comparative. One year’s listing of essay topics showedforty-three essays on common law, four on French law, thirteen on Ger-man law and twenty-seven on general comparative law topics, with a fewmore on Swiss, Indian and Soviet law.86

Soochow still required Roman Law (and sometimes Legal Latin), al-though in 1932 the course was still being taught with an English text andby a CLS graduate who had studied in the United States.87 The law schoolalso required courses in Chinese legal history, world legal history and evencomparative Chinese criminal law, a course which compared China’s de-veloping criminal justice system to its traditional administration of justice(Tang through Qing dynasties).88 Since those courses covered past as wellas contemporary law, Soochow’s comparative approach was described byone thirties graduate as both “vertical” and “horizontal.”89 In addition, theteaching in other courses often took on a more comparative slant. In 1932,for example, descriptions of the civil law and company law courses allstated that a comparative method of study would be employed.90 Even theAnglo-American courses became, as they moved from the center of thecurriculum and included some reference to Chinese law, more “compara-tive” themselves.

Other Law School Programs

While Soochow’s comparative program was reaching its peak, other Chi-nese law schools were offering less and less in the way of comparative law.If we look to the LL.B. curriculum alone as a measure of comparative lawemphasis, no other school matched Soochow. In Shanghai, for example,two private independent law colleges (Soochow’s competitors during thetwenties and thirties) offered four-year undergraduate programs in law,political science, economics and local administration.91 Both the ShanghaiCollege of Politics and Law (Shanghai Fazheng Xueyuan) and its offshoot,


the Shanghai College of Law (Shanghai Faxueyuan), taught basic law pro-grams focusing on civil law and procedure, supported by a range of elec-tives, mostly in sociology or political science.92 Their law curriculumsclosely followed the government’s model and their programs were limitedto Chinese law teaching.93 Despite their location in China’s most interna-tionalized city, neither school required—or even offered—much in theway of comparative or international study beyond a semester of Romanlaw.

Of course, some university law departments did offer their studentsgreater choice. National Central University (Guoli Zhongyang Daxue), forexample, taught more comparative law than either of the Shanghai lawcolleges discussed above. During the thirties, its law department offered afour-year program in three sections (zu): judicial training, administrativelaw and law.94 The law section, the most academic of the three, also taughtthe most comparative law courses; it required four courses (Roman Law,Anglo-American Law, Western Legal Systems and Comparative Legal Phi-losophy) and offered two comparative electives (Comparative Judicial Sys-tems and Recent Continental Law) in the third and fourth years of study.95

Since National Central was located in the capital and had ties to the Na-tionalist Party, its law curriculum certainly conformed more closely togovernment regulations than Soochow’s. But the school did teach a rea-sonable number of comparative law courses, and its curriculum provideda broader perspective than did many independent law schools. Neverthe-less, comparative work was not central to its mission and it offered nojoint or dual law programs.

Perhaps only Aurora University (Zhendan Daxue), based in Shanghai’sFrench Concession, could rival Soochow’s comparative program. Aurorawas founded by French missionaries a few years before Soochow andbegan by offering courses in French law, taught in French by instructorstrained in France.96 By the 1930s, the school had shifted its main emphasisto Chinese law, but it continued to stress the study of French law and stillrequired courses in French civil and criminal law. Aurora’s program alsoincluded a few general courses in comparative constitutional and com-mercial law and in Roman law. According to the school’s bulletin, studentsstudied French law as an introduction to their study of the Chinese codes,and French and comparative law remained as important as before.97 Inmany respects, therefore, Aurora was a French version of Soochow, buteven it lacked Soochow’s breadth of comparative courses from three legalsystems. And because it taught less foreign law than the CLS, at least


through the thirties, it did not offer its students the equivalent of Soo-chow’s dual-track program.

Soochow’s Graduate Program

Soochow’s graduate school (yanjiusuo), founded in 1926, also emphasizedthe study and research of comparative law during this period. One of thefew approved graduate programs in China, it offered a two-year course ofinstruction leading to the LL.M. degree.98 Although the program remainedsmall (only fourteen degrees were awarded in the 1928–1937 decade) andcatered mostly to CLS graduates,99 at its height it served as a model forcomparative law teaching in China.100 During the thirties, the prescribedgraduate courses emphasized international law and comparative civil law,a natural focus of study only a few years after the enactment of China’sfirst modern civil code in 1929–1931. In addition to International PublicLaw and International Relations, the program required full-year courseson Japanese, Swiss, Anglo-American, Soviet and French civil law.101 Intheir second year of study, graduate students were also required to writetheir LL.M. thesis on a comparative topic.

The graduate division regulations directed students to “use the compar-ative method to study law,” and by all the evidence that was the actualpractice.102 Course materials made it clear that graduate study would bebased on comparisons between the Chinese code and the civil law of fiveother countries. The Anglo-American “civil law” course, for example, wastaught by an American-trained member of the faculty with a casebook,which according to the catalog used “cases to draw comparisons with thenewly adopted [Chinese] law.”103 The other courses, taught with mimeo-graphed materials prepared by the instructors, also promised to use a di-rectly comparative method: the French civil law course description statedit would discuss the French code in order to compare it with China’s cur-rent law and to prepare students for comparative research.104 At such anearly stage of legal reform, comparison of specific sections or provisions inthe codes would have been a useful course of study, even if that approachnow seems limited or outdated,105 but the Soochow materials suggest thatmost instructors took a broader approach to the issues they discussed.106

The concentration on civil law study also meant graduate students couldengage in more than simple rule comparison; ideally such study enabledthem to trace concepts and ideas across different legal systems, and to viewthose concepts in historical perspective.107


Comparative Law Research

Soochow’s publications also emphasized comparative law, especially itslaw journals, the China Law Review (the “CLR”) and the Faxue Zazhi (LawMagazine), which appeared on a quarterly basis during most of the periodfrom 1922 to 1940.108 The policy of both journals, declared in the inau-gural English issue, was both ambitious and consistent with the CLS ap-proach to law teaching: their first purpose was to “introduce the principlesof foreign laws to China, and to acquaint foreign countries with the prin-ciples of Chinese law.” According to the editors, the English articles wouldtherefore be concerned with Chinese law and the Chinese articles withforeign law.109 The second purpose of the journals was to “facilitate a com-parative study of these principles of law,” so the comparative method oflegal analysis was to be emphasized; and their third purpose was to “ex-tend widely in China knowledge of these principles as a preparation forlegal reform.” In general, the editors declared their policy would be “notmerely to restate the present law, but also to show what the law ought tobe.”110 They proposed to publish articles “written strictly according to thecomparative method,” which “consists in studies of the laws of differentcountries as to their identities and their differences.” With respect to otherarticles the editors also promised to “arrange materials in a way that willfacilitate a comparative study on the part of the reader.”111

Those were ambitious goals and the two journals did not always liveup to them. Over the years, both published a wide variety of articles ondiverse legal topics, not necessarily comparative, ranging from brief andworkmanlike efforts intended for the practitioner to longer and morephilosophical pieces. Editorials, book reviews, texts of recent speeches,reprinted articles from American journals and notes on current events allappeared as regular features, especially in the earlier issues. Many issuesof the CLR featured articles on American or English law and jurispru-dence, subjects not necessarily lacking in interest for a Chinese legal read-ership but not the kind of articles the editors had originally promised. Ofcourse many of the authors of English articles were Soochow facultymembers or graduates publishing the results of research or study in theUnited States, or simply writing on topics of interest to them. John Wu,for example, published frequently in the CLR between 1924 and 1935,usually articles on American legal philosophy (he wrote on the “juristicphilosophy” of Pound, Cardozo and Holmes). Many of his colleagues didthe same.112


Especially in its early issues, however, the CLR did publish some excel-lent articles on Chinese law, most of which made reference to European orAmerican law. Judge Lobingier, whose preference, judging by his otherwork, was for long-winded articles on Roman and English law, also con-tributed several shorter and more interesting pieces on recent Chineselegal developments.113 Dean Blume wrote about legal education in Chinain the twenties, as did Hugh Chan some years later;114 other topics in Eng-lish included the Chinese notarial system and citizenship law.115 John Wu(as a joint author) wrote about sources of Chinese civil law and the con-cept of persons in Chinese law,116 and he too contributed a few articles onChinese law with a broader philosophical interest, such as the rule of lawversus the rule of man in Chinese history.117 Although many articles couldmore properly be classified as foreign law, that is, they were written aboutone system without deep comparison to the Chinese legal system or anyother, the topics of other articles were explicitly comparative, such asHenry H. P. Chiu’s articles on adoption, which compared Roman, Hinduand Chinese law.118

In early issues the CLR also published many Chinese Supreme Courtopinions, most of which would otherwise have been inaccessible to Eng-lish readers, and during the late twenties and throughout the thirties, itfrequently published translations of Chinese statutes, often though not al-ways prepared by Soochow faculty or graduates. Most translations were ofmajor laws or illustrated issues of concern to the Chinese legal commu-nity, including the Civil Code, which appeared in installments, as well asdrafts of the Constitution, the amended Criminal Code (1935), the Nego-tiable Instruments Law (1929), the Company Law, the revised Code ofCivil Procedure (1935), the amended bankruptcy law and many trade-mark and copyright laws and regulations. Publishing those translationsalso fell somewhat short of the journal’s original ambition to explain andinterpret Chinese legal developments, but even translations had somevalue in the comparative enterprise the editors wished to promote: Duringa time of rapid legal development, translations could at least make someof the new laws available to an English-reading audience.

The CLR’s articles varied in length and quality; some were primarily ofinterest to practitioners, while others, particularly those by Wu and Lob-ingier, were aimed at a more academic audience. The earliest issues carriedmany shorter pieces along with reprints from other sources, while articlesin the later issues tended to be longer and had rarely appeared elsewhere.But the overall standards were very high; certainly the English articles


were well written and the authors all used footnotes, if not so obsessivelyas is now the practice. Many articles could easily have been published inthe United States or indeed had already appeared there, and the same au-thors also contributed to American law journals.119 Not all articles re-flected the real legal issues of the day, but many certainly did, includingdecisions in the early twenties on extraterritoriality and the rendition ofthe Mixed Court (the rendition agreements appeared in both journals).Viewed as a whole, the CLR compared favorably, or at least not too unfa-vorably, with many law journals of its day, outside China as well as in it.

The Faxue Zazhi was not simply a translation of the China Law Review,but a separate journal with different articles and a somewhat differentfocus even before its separate publication. The authors, as in the Englishjournal, were often but not always Soochow graduates and faculty mem-bers, some of whom also wrote in English for the CLR. The Chinese jour-nal published a variety of articles covering a greater range of topics thanthe CLR, and overall it was probably more comparative than its Englishcounterpart. Although almost every issue carried articles on recent devel-opments in Chinese law (perhaps unavoidable in a Chinese-language pub-lication), it still devoted more space to articles on foreign and comparativelaw. The editors paid attention to public as well as to private law topics,and the journal often published articles on criminal law and procedure,administrative law and constitutional law issues. Translations and analysesof foreign cases, from both civil and common law countries, also appearedas regular features.

Articles in the earlier issues tended to be short, but later articles wereusually longer and more substantial, as in the CLR. Especially during thethirties, the Faxue Zazhi published serious pieces on other legal systems,as well as genuinely comparative articles, for example on Chinese and So-viet marriage and divorce provisions or criminal law. The journal also de-voted entire issues to the analysis of selected special topics, includinglegal education, constitutional law, labor law, judicial systems and theprosecutorial process in many foreign jurisdictions as well as in China.120

The presentation of those topics was comparative, and consequentlyreaders of the Chinese journal were exposed to legal issues and solutionsin many other systems, just as the first editors had intended. Not surpris-ingly, the most comparative as well as the most serious articles also ap-peared in the thirties, at the height of Soochow’s comparative program ofcoursework.


Viewed from today’s perspective, the Faxue Zazhi is an impressive ef-fort, understandably more comparative than its English sibling. In somerespects it was also the more important of the two journals; its main goalwas, after all, to contribute to Chinese legal reform, and since reading itdid not require facility in any foreign language, it could reach a wider au-dience in China. Although the journal was also sent to American lawschools and libraries, its comparative goals and focus meant its greatestimpact was intended for a Chinese legal audience. In the end, the goals ofboth journals may have been a bit ambitious, the editors’ notion of “com-parative” was sometimes vague, and at times the authors left the reader todo all the comparative work himself. On balance, however, the journalsmade a serious contribution to discussion of the legal issues of the day—and they did so in a comparative fashion.

Conclusion

From the late twenties through the thirties, Soochow’s curriculum caughtup with its ambitions, the school began operating on a different (andbroader) model, and consequently it more clearly deserved Hudson’s ear-lier praise. During those years, the CLS offered a truly comparative pro-gram in all respects: in its courses, its teaching methods, and—through itsgraduate program and its journals—in research. Its five-year program al-lowed its instructors room to teach the kind of comparative and dual-trackprogram they believed in and to prepare their students for an internationalpractice in Shanghai. But as the Law School’s comparative programreached its peak, problems already loomed on the horizon, and the schoolsoon faced greater regulation and wartime restrictions.

Soochow during the War Years, 1940–1949

Soochow’s comparative approach reached its high point during theNanking decade, before increased government oversight forced modifica-tions to its curriculum. But in 1937 Soochow lost its special permission toteach a five-year course (and to offer classes in the evening);121 theschool’s program was reduced to four years and it was required to admitstudents directly from senior middle school. The result was an abbrevi-ated and effectively undergraduate program, with many non-law courses


now an integral part of the curriculum, in place of the more advancedprofessional training Soochow had previously emphasized.

Despite those restrictions, the school’s administration strove to main-tain its comparative focus, in one form or another, and in 1938 Soochowwas still requiring six Anglo-American law courses (contracts, torts, prop-erty, criminal law, family law and equity) and offering ten others as elec-tives. Teaching that much common law could only come at the cost of re-ducing other comparative law courses; although many remained as elec-tives, only Roman Law and Continental Civil Law were still required.122 Insuch a shortened program, students could take fewer electives and theschool no longer offered as broad a comparative program as it had before1937. For the next few years, the curriculum changed little: In 1941, thelast year the CLS could operate officially in Shanghai, the school still re-quired the equivalent of six Anglo-American law courses and offered tenelectives. By then the school had also added a course in English LegalTerms (perhaps necessary for most students) and required another com-parative law course or so (Roman law, continental civil law and history ofWestern legal systems).123

War brought further difficulties in implementing a comparative—orany other academic—program. The outbreak of the Sino-Japanese War in1937 forced the CLS to flee its own campus for a safer part of the Interna-tional Settlement, and for the next eight years the school operated in a se-ries of temporary venues. In December 1941, Japanese troops invadedShanghai’s foreign concessions, and thereafter the CLS was effectively splitinto two: the official Law School, which reopened in the wartime capital ofChongqing (1943–1945), and a smaller, unofficial branch that survived inoccupied Shanghai (1942–1945).124 Despite a much reduced faculty, theShanghai branch managed to require almost as much Anglo-Americanlaw as before the war (they had to skimp on electives), and the school stilltaught Roman law, continental civil law and comparative constitutionallaw. The curriculum of the Chongqing branch, which reverted to a five-year evening program, offered almost identical comparative and commonlaw courses in its wartime program. With the faculty and students scat-tered, neither branch offered as much comparative law during the war asbefore it, but both still included a solid core of Anglo-American law, sup-ported by a few of the most important comparative law courses.125

In 1946, the two branches of Soochow were reunited and the schoolwas finally able to return to its old campus. A new and larger faculty, nowformally divided into Chinese law, civil law and Anglo-American law in-


structors (and still including a few Americans), was reassembled. Despiteinflation, vastly increased student numbers and the encroaching civil war,the CLS continued to operate and to offer a comparative law program.The class of 1949, the last to graduate before the founding of the PRC, stillcompleted the equivalent of six Anglo-American law courses (they werelisted as electives but the law students took all of them), although theystudied less general comparative law than during the late twenties andthirties.126 The school was once again subject to closer governmentscrutiny of its curriculum, and at the government’s behest introduced aspecial judicial training section as well as other sections in internationallaw and administrative law.127

Whatever the modifications to their curriculum during the wartimeyears, Soochow teachers still emphasized the importance of comparativelaw. When the Law School’s program was reduced to four years, compara-tive study was still required, and later students continued to be attractedby the school’s emphasis on foreign relations and foreign languages.128

During the years in Chongqing, Dean Sheng believed it the Law School’sduty to provide courses suited to the “needs of the nation”; war in his viewmade it all the more necessary to engage in comparative study of the lawsof other countries, along with international relations.129 Even after 1949,Soochow’s faculty retained their belief in the school’s mission to teachcomparative law, because it had “always been the specialty of the school.”In the first few meetings held after the Communist victory, the faculty re-solved to continue teaching comparative courses (although they wouldnow emphasize civil rather than common law), and if possible, to increasetheir foreign law courses in order to enhance the school’s tradition ofcomparative study.130 As late as 1950, the CLS administration still hopedto strengthen the school’s international law program, using its past excel-lence in comparative law and foreign languages as a base. The founding ofthe new government, they argued, made it even more important to pro-vide international law training for diplomatic and other officials, so theycould better fulfill their duties.131 But the new government moved insteadto restrict Soochow’s curriculum and in 1952 it closed the ComparativeLaw School forever.132


Assessment of Soochow’s Program

Soochow’s Anglo-American Law

In the name of comparative study, Soochow made Anglo-American law itsspecialty, and common law courses always constituted an important partof the curriculum. Any assessment of that program—and its success orfailure—must therefore consider the position and teaching of Anglo-American law at the CLS. In its earliest years, Soochow was in many re-spects an American law school, with American teachers, courses and stan-dards. Many graduates of that era went on to study in the United States,where law schools granted recognition to their coursework and theirpreparation at Soochow stood them in good stead. Despite its simple be-ginnings, the school offered a surprisingly high- quality common lawtraining, demonstrating that it was possible to teach an American law pro-gram in a foreign setting and, despite limited resources, to do it well.

But Soochow’s concentration on common law teaching had some obvi-ous drawbacks. Chinese law was developing rapidly during the school’searly years, yet the CLS hardly taught it. Perhaps because its teachers andgraduates had little training in the field themselves, the school movedslowly to add Chinese law courses to the curriculum. Although Soochowdid begin teaching Chinese law seriously in the mid-twenties, one twentiesgraduate who studied there from 1924–1927 later noted the imbalance inhis courses: Most of his subjects were common law, he wrote, and whileChinese law was “touched upon” the courses were still not “equal in pro-portion.”133 Soochow students in the earlier and transitional period, there-fore, had a limited introduction to Chinese law and could find themselvesill-prepared to practice law in their own society. If the CLS had retained anentirely or almost-entirely common law program, if it had remained sim-ply a replica of an American law school, it would have become largely ir-relevant to the majority of its students.

By 1927, however, Soochow had introduced a broader range of Chineselaw courses, in order to equip its students for legal careers in China as wellas to comply with government regulations. By the thirties the CLS had putin place a solid Chinese law curriculum, which was by most accounts seri-ous and well taught, even if it did not provide the specialization or cover-age that less comparative law schools could offer. But Soochow did notabandon its teaching of Anglo-American law—far from it. Indeed, the em-phasis it continued to place on common law courses made its program ef-


fectively dual-track, training students in both Anglo-American and Chi-nese law. Although the decision to retain a special position for commonlaw courses put Soochow at odds with the government’s model of legal ed-ucation, in light of the school’s expertise, history and Shanghai setting,where most of its graduates sought work, it also made a great deal ofsense. It is true that many Chinese lawyers had limited dealings with for-eign clients, but Shanghai was still a mixed jurisdiction and the interna-tional legal business of the day required a knowledge of foreign as well asChinese law.134

Teaching so much Chinese law, however, did leave less room in the cur-riculum for the common law courses the CLS was determined to preserve.Soochow’s earliest graduates knew the common law system well, but was itreally possible to train students in Chinese and American law at the sametime? Soochow’s program sought to do just that, by requiring a core cur-riculum of Anglo-American law, which always included a full year of con-tracts and torts, plus elementary law in earlier years and criminal law lateron. During the thirties, the CLS also generally required one-semestercourses in property, equity, family law and succession, although thosecourses sometimes appeared as electives. The required courses continuedto be supplemented by a set of common law electives in important areasof business and commercial law, including agency, partnership, corpora-tions, trusts, and banking.

By this time, of course, Soochow could no longer offer the equivalent ofan American program, and its graduates rarely had sufficient common lawcredits to pursue graduate degrees in the United States. Since many of thebest students aspired to study abroad (and it was an incentive to apply tothe CLS in the first place), this proved something of a disadvantage. Butthat was more than offset by the local opportunities the dual-track pro-gram gave the majority of its students, who could not hope for overseasstudy. Those who went abroad were still well prepared to make the transi-tion to law study in the United States, as the school continued to require aminimum of four to six common law courses and offered many more aselectives, even at the cost of reducing the number of comparative courses afew years later.135

Perhaps a more serious disadvantage was the lack of flexibility that re-sulted when Soochow reduced its common law teaching. By preserving alimited group of courses, the school risked clinging to an out-of-date cur-riculum, locking itself into old courses and unable to add the new.Throughout the twenties and most of the thirties, newer faculty members


were often CLS graduates with recent American degrees, students were as-signed the latest casebooks, and the library continued to update its collec-tion. But staying current during the war years was a much more difficultproposition. While American law school programs underwent significantchanges Soochow’s Anglo-American curriculum changed little, and bythen its common law teachers had mostly been trained years before. Somestaples of the CLS curriculum were already somewhat old-fashioned, re-quired long after American law schools had revamped or dropped them,136

and the school failed to introduce newer courses in important areas ofAmerican law, especially in administrative, constitutional and businesslaw. Although statutory law was becoming increasingly significant in theUnited States,137 Soochow’s core Anglo-American courses were all basedon cases and generally paid scant attention to statutory law and interpre-tation.138

On balance, however, the choices the CLS made were good ones, evenif the school could not keep pace with changes in American law duringthose years or cover every subject. Its core curriculum of common lawcourses, for example, had long since become the subjects most widelytaught in U.S. schools.139 Despite the growing importance of administra-tive law, Soochow’s continued emphasis on private law, especially con-tracts, torts and property, which its teachers still viewed as the “unchal-lenged centerpieces of the legal system,” was no doubt right for theirday140—and even now some lawyers believe that “these basics remain themost important teaching we do.”141 The solid grounding that Soochowstudents received in those fundamental areas of law seems to have giventhem a firm understanding of common law analysis.

Soochow’s method of teaching those courses, which distinguished themfrom the rest of the curriculum as much as the content, was equally im-portant in imparting to students a feeling for the common law. Becausethe instructors had all been trained in Anglo-American law and most ofthem had studied in the United States or England, they continued to teachthem in English, using some version of the case method. The common lawdoes not seem to lend itself to translation,142 and for American lawyers,the process is always important: If cases are examples of the “legal processat work,” as well as pieces of social history giving the reader a “feeling ofcontact with the culture,”143 that was even more important to students sit-ting in Shanghai, not New York or Iowa. Even forty or fifty years later, theschool’s graduates vividly recalled their Anglo-American law classes, inwhich they were required to brief all the cases, stating the facts, issues,


judgment and reasons, with the book firmly closed.144 One thirties gradu-ate particularly admired his contracts teacher, an American judge: He useda casebook and worked through it very slowly, but “what he got out of thecases, the principles and policies, made it very interesting.” If you studiedwith him, moreover, “you really learned how to read the cases yourself—that was the important thing.”145 And if Soochow’s teaching method madeit harder for students (it did), what they learned stayed with them: Whenthis group of lawyers resurfaced in China after the 1979 legal reforms, theywere still “amazingly good,” in particular because of their knowledge ofcontract and property law.146

For all these reasons, Soochow’s program was on balance a very effec-tive one; it certainly worked well during the twenties and thirties. Theschool was able to provide a full Chinese law curriculum while also main-taining an essential core of common law courses, especially after 1932,when its program included four full years of law study. During thoseyears, moreover, a large number of students still entered the CLS withwork experience, sometimes very substantial, and they came from morediverse (and often better) schools than did later students. Perhaps mostimportant, the early graduates embarked on their legal studies with excel-lent English, whether as a result of attendance at mission schools or em-ployment in Shanghai businesses. Soochow students of the twenties wereapparently not intimidated by the challenges they faced: “Having a strongfoundation both in Chinese and English we have no trouble in gettingalong with our big volumes of law, although they seem to be thick, heavyand difficult.”147

The forties were another story, however. By then the government hadcompelled the CLS to reduce the length of its program,148 and the vastmajority of students were admitted directly from ordinary Chinese mid-dle schools, where standards were often low.149 Few entering students hadextended work experience, and as a rule their English was not as good,leaving them ill-prepared to undertake Soochow’s course. To cover com-mon law subjects while meeting government requirements, the schoolrisked cramming five years of work into a four-year program—with stu-dents who were less prepared to do it. In 1938–1939, for example, theystudied Anglo-American contracts and torts in their second year, togetherwith the all-important course in civil law obligations, a hard combinationeven for much more advanced students. The cases also made for toughreading and the contrast in teaching style with the civil law courses, whichwas based on the European model and generally consisted of lectures


explaining the codes, surely made it harder for many of the later studentsto pursue this dual-track course. One forties graduate recalled in an inter-view how he struggled through the cases in his Anglo-American lawcourses. At first he could hardly understand them at all; although he per-severed, other students found the effort overwhelming and failed to com-plete the course.150

At that point, the CLS would probably have done better to teach itscommon law courses as electives at the graduate level, perhaps as a two-year program following the four-year LL.B. course. The CLS already of-fered an LL.M. program devoted to comparative law study, and its admin-istration preferred a longer program anyway, partly to keep pace with in-creasing American standards. Such a change, however, would certainlyhave affected the Law School’s character and tradition, which had alwaysstressed Anglo-American law as an integral part of its educational pro-gram. That tradition distinguished Soochow from other schools and hadalways helped it attract students. But the greatest obstacle was a practicalone: During the Depression and war years, few Chinese students could af-ford to pay for a longer course of study, especially to obtain a graduatedegree.151 Moreover, although Soochow supported wider opportunitiesfor graduate study in China, the government discouraged it as expensiveand wasteful of resources.152 Students who did opt to pursue graduatetraining usually preferred the added prestige of a foreign degree andsought a doctorate abroad instead.153 Under those circumstances, there-fore, Soochow’s Anglo-American law program had to succeed or fail atthe LL.B. level.

A Question of Standards?

Ironically, it was government moves to regulate education, not the hard-ships of war or limited finances, that created Soochow’s hard curriculumchoices and ultimately weakened its comparative program. The new regu-lations were introduced in the name of raising educational standards, butin fact the situation was much more complicated. Although it vigorouslyresisted attempts to shorten its program or revise its curriculum,154 Soo-chow’s administration was determined to maintain the school’s standards,as its records clearly show.155 The CLS taught to a high standard, at leastthrough the thirties, despite the fact that for almost all of that time courseswere held in the late afternoon and early evening, and many of its studentsworked during the day. Classes were small, and students were required to


attend them and to pass their examinations in order to graduate. It is truethat many Soochow instructors taught part-time, but it was a commonpractice of the day and allowed the school to take advantage of visitinglecturers and prominent jurists drawn to legal opportunities in Shanghai.The Law School, moreover, always had a core of dedicated faculty mem-bers, most of whom had been associated with the school for many years.156

Had it been financially feasible, Soochow would certainly have offered adaytime session and hired many more full-time instructors, but as a pri-vate institution without government subsidies the school could neverquite manage it.157

Like the authorities, the Soochow administration and faculty weretroubled by the generally low level of Chinese education. But from the be-ginning, they strove to emulate the “best American law schools”—natu-rally including the ones they had attended.158 They believed that law was avital area of study for China and viewed legal education as primarily pro-fessional and graduate training, which should be undertaken only afterpreliminary college study.159 In the early twenties, Dean Blume had arguedthat entrance requirements should be raised to at least two years of col-lege, and the CLS did so; although a few students were admitted on thebasis of an entrance examination, the two-year requirement was rarelywaived,160 and the school later introduced its own preparatory program toensure a higher standard of pre-law training.161 By the mid-thirties, Shel-ley Sun proposed raising entrance requirements even further, since he be-lieved it to be the inevitable trend at U.S. law schools.162 Other CLS facultymembers agreed with him, but the school was already requiring five yearsof study, and the proposal proved impossible to implement. The CLS andUniversity administration did, however, for years resist all pressure to re-duce the length of their program, since in their view it would have meantlowering the school’s standards.163

Whatever its standards, the CLS approach to legal education was boundsooner or later to bring its administration into conflict with the National-ist education authorities. During the first dozen years of its existence, Soo-chow had been relatively free to experiment, and the school’s program wasvery much in tune with the international and more open outlook of thetwenties.164 But after its 1928 consolidation of power, the Nationalist gov-ernment embarked on a national campaign intended to sinify Chinese ed-ucation as well as to centralize control over it, and from then on Soochowfaced increasing pressure to conform to newer and more uniform stan-dards. The government was already moving to a highly regulated system


based on the European model, in which law was taught like any other un-dergraduate subject, not as a graduate professional program.

The real push for educational reform, however, came after publicationof a report by the Becker Commission, a League of Nations commissionwhose members visited China in 1931 to conduct a survey of its educa-tional system.165 The commission’s report appeared in 1932 and many ofits recommendations were subsequently reflected in legislation the Na-tionalist government adopted between 1933 and 1936 as it attempted toexert greater control over education.166 The commission found fault withAmerican influence on the Chinese educational system167 and recom-mended the adoption of a European centralized and nationalized systemof education in its place, with a uniform entrance examination and the re-placement of the credit system with final examinations.168 The commis-sion’s members also expressed concern over the heavy reliance on foreigneducational materials and recommended that a more Chinese medium beused.169 Although the commission’s distinguished panel of experts pro-duced some very sensible proposals for improving Chinese education, theyalso showed a pronounced European bias in their views on university-leveltraining.170 Consequently the American model to which Soochow lookedfor guidance and inspiration was rejected both generally and specifically intheir report.

The Becker Commission also found a “concentration on certainbranches of intellectual work to the neglect of others,” specifically, toomany students in law and too few in science,171 and it therefore recom-mended that the number of universities devoted to general courses, in-cluding especially law and political science as well as the liberal arts, be re-duced.172 Such recommendations struck a chord with the Chinese govern-ment, which also disapproved of the high rate of law and political sciencestudy in its universities and was determined to reduce enrollments in so-cial sciences in favor of the hard sciences, subjects seemingly more usefuland less threatening to its authority.173 Though of course a modern systemof courts and procedure depended as much on a well-trained legal profes-sion as it did on qualified judges,174 something Soochow certainly recog-nized, the authorities viewed law as less important than science and tech-nology—and even dangerous and necessary to curb. From 1932, therefore,the government took steps to limit the numbers of students in law andwas able to reduce them substantially by 1938.175 As a result of those re-strictions, the CLS had to introduce a new accounting division (notcounted as “law” under the government regulations), in order to keep its


enrollments, and therefore its tuition payments, high enough to supportthe school.176

For some years, Soochow had faced increasing pressure from the edu-cation authorities, and by the late thirties the school finally had to con-form its program more closely to the government’s mandated length andcurriculum. Although the CLS regained some of its freedom during thewar, when the Shanghai branch operated unofficially and the Chongqingbranch reverted to a five-year evening program under the pretext ofwartime conditions, at war’s end the school was once more forced to com-ply with government regulations. The school’s model of professional edu-cation for lawyers was further diluted by the post-war introduction of ju-dicial and accounting sections, neither of which held any real place forcomparative study. Whatever its effect on other law schools, therefore, inSoochow’s case the government’s program resulted in a lowering of stan-dards. Indeed, there is an argument—appealing at least to Americanears—that the kind of legal education Soochow offered was superior tothe continental model the government preferred, and in practice I believethat was true. Soochow’s professional aims and broad comparative scopehad much to offer, and all in all the teaching was “richer, fuller, and to gofor a kind of bottom-line simplification, just better.”177 Why did all pro-grams have to be the same?

The Place of Comparative Law

The Becker Commission did not focus specifically on law as a discipline(except to criticize its enrollments) or even on comparative study, but it issafe to assume its members would not have cared much for Soochow’sprogram. The commission did recognize that different schools might havedifferent traditions, and it did not recommend the closure of private uni-versities so long as they were registered (i.e., accredited) and compliedwith all education regulations.178 But Soochow was still clearly based onan American model, it offered professional training intended to follow lib-eral arts study and it used foreign materials for a substantial number of itscourses. Above all, it had always made the study of foreign law in one formor another the centerpiece of its curriculum, and it continued to steer adistinctive course in the face of increasing government regulation.179 Soo-chow’s outward-looking approach and its comparative program couldhardly find favor when educational reform was primarily directed towardsinification and standardization.180


Outside experts had already questioned the wisdom of so much foreigninfluence on Chinese law schools and the diversity of legal training that re-sulted. In the early twenties, the French legal scholar Jean Escarra, then anadviser to the Chinese government, sounded the alarm over the country’sdiverse and “inappropriate” legal training. China, he argued, was “teachingher new generations the methods and solutions belonging to western leg-islations,” when it sent its young men to study law in Japan, England, theUnited States, France and Germany. “But how profitable is that sort oftraining?” In the United States and England, Escarra wrote, they would betaught “a legal conception which hardly fits them for understanding thespirit of a legislation codified according to Latin or German principles.”Studying in France and Germany might be preferable, but in his viewthose legal cultures were more complex and less assimilable than the com-mon law.181 In either case, most Chinese students returned from overseaswith “variegated knowledge,” but without any real feeling for legal culturesthat differed greatly from China’s. Consequently, first the drafting andthen the application of China’s codes would inevitably suffer, because theirinterpreters had been so diversely educated in law.182 Like the BeckerCommission, Escarra’s views obviously reflected a strong civilian bias,183

but his argument does outline the disadvantages of the very mixed charac-ter of early Chinese legal training—and Soochow (despite its location ininternationalized Shanghai) was an excellent example of what he deplored.

Even American experts such as Roscoe Pound, the former Harvard LawSchool dean and an adviser to the Chinese Ministry of Justice during thelate forties,184 could reach similar conclusions, at least at a later stage ofChinese legal reform. Pound, who had visited the CLS in 1935 and spokeat its 1946 commencement, also criticized the diverse legal education hefound in China in the late forties, echoing Escarra’s comments of twenty-five years before. He too believed that Chinese law students should studyin China rather than go abroad for their professional training185 and ar-gued that Chinese judges, lawyers and law teachers should “as soon as pos-sible have a common training in Chinese law,” without which he believedthat interpretation of the Chinese codes would be “vacillating and uncer-tain.” Such a lack of uniformity was probably unavoidable when Chinawas drafting its codes, but later it would greatly retard “a unified doctrinaland judicial development of the Chinese code.”186 Pound therefore recom-mended that China “unify legal education as an education in Chinese lawon the basis of the Chinese codes interpreted and applied as such by a set-tled technique.”187


By the forties, that position made a lot of sense—who could argueagainst more uniform training that late in the game? Pound was still a be-liever in comparative law study, but he distinguished between its use indrafting the Chinese codes and their interpretation once they were en-acted. Its first use had been to enable the Chinese to choose wisely be-tween the two main models of Western law, from among the codes andeven particular provisions (including from Anglo-American law). Later onPound envisioned a different task for comparative law in China. Now itstask was to “develop a technique of interpretation and application” of thecontinental-style codes already chosen and adopted; comparative lawwould “show the possibilities of each article as it has been interpreted andapplied in the body of law from which it was taken,” so that China coulddevelop its own interpretation and application of the laws.188

Such a view still left room for Soochow’s comparative program. Bythen, the school was providing a solid foundation in Chinese law, andcomparative law was studied as a basis for understanding the new Chinesecodes, especially in the civil law courses introduced in the early thirties.But Soochow’s faculty and administration always retained an Anglo-American law perspective, which certainly had value in earlier days, whenmany Soochow graduates actively participated in legal drafting (bothSheng and Wu served on the Codification Commission during the thirties,as did other colleagues and graduates). During the forties, however, theirexpertise was arguably less useful.189 Yet some Chinese lawyers still advo-cated a role for Anglo-American law, at least in the commercial law area,as well as for continued comparative study. According to one, “It is theduty of a Chinese law student to make a thorough study of both systems[civil and common law], to find the strong and weak points in each, andby a process of judicious sifting, to develop an independent system of ourown. That is the work of a real patriot.”190

Conclusion

Past Achievements

Soochow opened its doors as an Anglo-American law school, and it is easyto see why. Its founders were American and its earliest teachers wereAmerican lawyers practicing in Shanghai, a mixed jurisdiction whosecommerce was dominated by British and American interests. The most


important commercial law was “Anglo-American,” at a time when most ofChina’s own commercial law was largely in the drafting stage. Foreignlawyers prospered and there was plenty of business for those who knewthe common law but could also operate in a Chinese environment. Withtheir excellent English and their special legal training, Soochow’s “biglawyers” (da lushi) dominated law practice in the foreign concessions as noother lawyers could.

Even after 1927, CLS students learned a great deal of Anglo-Americanlaw and could still function well in a common law system. The earliestgraduates were better in common law and the later in Chinese law, but thegraduates of the middle years, when Soochow offered its ideal program,were very good in both—even though by teaching them two systems theschool risked preparing them for neither. The Law School’s teaching ap-proach, not simply the number of common law courses, was a major rea-son for the school’s success in imparting the common law tradition. As apractical matter, it is also why Soochow students through the thirties (andeven the forties, if their English was good enough) could still make thetransition to study at an American law school. The majority of the school’sstudents did not go abroad to study but they still acquired a deeper com-parative knowledge of another system, which in Shanghai remained ofpractical advantage.

The outbreak of the Sino-Japanese War and invasion of Shanghai in1937 dealt the first blow to that system, even though the foreign conces-sions were initially spared and continued as a “lonely island” (gudao) in asea of Japanese-occupied territory.191 In December 1941 the concessionswere themselves occupied by the Japanese, and in 1943, as a favor to awartime ally, the United States and the United Kingdom relinquished ex-traterritoriality and related foreign privileges. That brought to an endShanghai’s existence as a mixed jurisdiction and at the same time removeda large practical incentive to continue Anglo-American law training—al-though jobs dealing with foreign clients could still be found and Soochowgraduates continued to do well in them.

Yet from its founding the CLS had always aspired to broader goals.Through changing circumstances and fortunes, Soochow teachers be-lieved in comparative study: The Chinese legal system remained a workin progress and they thought comparative law had a contribution tomake to it. Although in its earlier years the program was really moreAmerican than comparative, by the late twenties the school offered animpressive comparative program, long before the post-war focus on


comparative and international law in the United States or the more re-cent emphasis on training lawyers for the global economy. For all thesereasons—timing, location in Shanghai, the emerging legal system inChina, tradition and belief in its importance—some version of Soo-chow’s unique comparative program survived until Soochow’s finaldays.

Current Relevance

Is Soochow’s experience relevant to Chinese legal education today? At firstblush, it seems not. The Comparative Law School was very much theproduct of its place and time: Shanghai and the foreign concessions be-tween the two world wars, during a critical period in the establishment ofa new Chinese legal system. It flourished because it offered practical andcreative opportunities well suited to its era—but of course that era haslong since passed. The 1952–1953 reorganization of higher educationended private education in the PRC,192 and like its predecessor, the PRCgovernment adopted a highly centralized, European educational modelwith a fixed curriculum. Law is ordinarily taught as a four-year under-graduate course of study (which may be followed by a three-year LL.M.program), and despite efforts to improve university standards, the generallevel of education is still not high.193 Moreover, although large numbers ofChinese law students have actually been educated in the United States, fewChinese institutions would have the staff or facilities to offer a Soochow-type program.

But the Soochow model (high quality comparative education, with anemphasis on common law, all taught in China) may yet have somethingvaluable to offer Chinese legal educators. At this stage of legal reform,more than twenty years after the introduction of the PRC’s open policy in1979, knowledge of foreign legal systems is once more extremely impor-tant, and the pervasive influence of American law has also made it a moreattractive option for study. As they draft legislation on increasingly com-plex business and commercial areas, China’s legal experts will require adeeper understanding of how other legal systems approach those issuesand why they choose the solutions they do. China’s increasing involvementin international financial and commercial systems and its impendingentry to the WTO [World Trade Organization] are bound to intensify thepressures for greater reform. Given the globalization of the legal profes-sion and the competition Chinese lawyers already face from international


firms, an understanding of the legal environment abroad is of practicaluse as well.194

Although the PRC has not embarked upon the kind of massive legaleducation reform now under consideration in Japan and Korea,195 Chineseeducation authorities may also be showing greater flexibility, and even aprivate law school seems within the realm of possibility.196 Of course theSoochow model need not (and could not) be adopted across the board, atall institutions; by its nature it was a special and limited program, and itwas unique in China even in its day. But Soochow’s experience shows it ispossible to produce people in one country with a solid understanding ofanother and very different legal system—and also how to proceed if such aprogram is once more seen as desirable. What are the requirements? Someroom for innovation is essential: Soochow developed its most successfulprogram while working within the system, but without all the rules strictlyapplied against it. A common law program such as Soochow’s should alsobe taught in English by people trained in the system, as it is taught in theUnited States; nowadays it could also be taught most successfully at thegraduate level. At least informal ties with American law schools, such asSoochow’s connection with Michigan, would also help maintain the qual-ity of such a program.197

Indeed, Chinese law schools are already experimenting with similar ap-proaches. When, for example, Beijing’s Tsinghua University (QinghuaDaxue) refounded its law department in 1995,198 it began planning a pro-gram that sounded remarkably like Soochow’s: a professionally-orientedcourse taught at the graduate (or advanced undergraduate) level, with anemphasis on common law courses taught in English.199 Another Beijinguniversity, the Chinese University of Politics and Law (Zhongguo ZhengfaDaxue), has taken a somewhat different approach, though one still remi-niscent of Soochow. Its program, introduced in 1999 in cooperation withTemple University, offers a two-year part-time LL.M. in U.S. and interna-tional law for Chinese students who already have law degrees or experi-ence; the courses are taught in English by a combination of full-time andpart-time American law teachers. In contrast to Tsinghua (and Soochow),successful students will receive a degree from the American institution,even though almost all their coursework is given in China.200

Neither university set out to emulate Soochow, but other mainlandChinese institutions have done so, attempting to revive Soochow or makeuse of its name and reputation. As early as 1989, the Soochow Compara-


tive Law Advanced Studies Institute began teaching courses to cadres en-gaged in foreign legal work, although it was not authorized to grant de-grees. Many of its instructors were themselves CLS graduates and the in-stitute emphasized international and comparative law study.201 SuzhouUniversity Law School, the state university that was founded in Suzhouafter 1949 and occupies the old Soochow campus, has also established aSoochow comparative law research center. It is even possible that a newversion of Soochow, specializing in comparative and international law,may now be successfully refounded in Shanghai with the support of itsTaiwan counterpart.202

Perhaps Soochow’s program might also serve as a model for legal edu-cation in Hong Kong, now that it has become part of China. The Univer-sity of Hong Kong’s faculty of law already suggests some parallels to Soo-chow: It has long taught the common law in English to Hong Kong stu-dents, and from the mid-1980s began adding an expanding series ofChinese law courses.203 In the 1990s it also introduced a graduate pro-gram for the study of common law, offering a diploma and a master’s de-gree intended mainly for graduates of mainland Chinese law depart-ments.204 With its international programs, both taught and researched,the school has already moved beyond the colonial model of the past,which focused purely on local or English-based law and emphasized con-veyancing.205

For most American law schools, the relevance of Soochow’s programmay seem less obvious, as foreign and comparative law study remains alower priority.206 In Europe, if the ultimate goal is harmonization or unifi-cation of the law in the European Union, comparative law teaching mayalso take a very different path.207 Yet the many panel discussions on inter-national legal education and the globalization of law practice reflect agrowing interest in this country, and more and more U.S. and Europeanschools are introducing comparative or international law programs.208

Within the last few years, several American law schools have also estab-lished joint programs to train their students in two legal systems (U.S. lawplus European civil law), enabling them to qualify in both jurisdictions—as Soochow once did, though less formally.209 What is the best way to ac-complish this? How can a combined program train people in less timewhile preserving the essence of both systems? Soochow was remarkablysuccessful in its day, and, if we care about these issues, may thus havelessons for us as well.


Soochow Law School Curriculum Class of 1918

First-Year Courses (1915–1916)

Contracts ContractsTorts TortsCommon Law Pleading Criminal ProcedureCriminal Law (English) Civil Law (Roman)Family Law (Chinese) Family Law (English)Comparative Religions AgencyMoot Court Negotiable InstrumentsElementary Law Parliamentary LawJurisprudence Bible StudyLegal Mechanics

Second-Year Courses (1916–1917)

Real Property Real PropertyChinese Criminal Law Criminal ProcedureProcedure DamagesPrivate Corporations Municipal CorporationsSales CopyrightsPersonal Property Personal PropertyBible Study Philosophy of the

Christian ReligionMoot Court

Third-Year Courses (1917–1918)

International Law International Law (Private)Constitutional Law PartnershipJurisprudence BankruptcyInsurance Suretyship and GuarantyLegal Ethics Administrative LawEvidence EvidenceSuccession Christian EthicsMoot Court


(This chart is based on course lists in student files from the Class of 1918,the first class to graduate from Soochow Law School.)

Soochow Law School Curriculum 1930–1931

First-Year Courses (34 credits)

General Principles of Civil Law 3 credits(in Chinese)

Domestic Relations (Chinese) 3Succession (Chinese) 3Criminal Law (Chinese) 3Criminal Procedure (in Chinese) 4Court Organization (Chinese) 1Parliamentary Law 1

(in English and Chinese)Contracts (English) 6Torts (English) 4Roman Law (English) 6

Second-Year Courses (32 credits)

Obligations (Chinese) 6Property (Chinese) 6Civil Procedure (Chinese) 6Corporations (Chinese) 2Bills and Notes (Chinese) 2Evidence 4

(English and Chinese)German Civil Law 6

(English and German)

Third-Year Courses (32 credits)

Comparative Criminal 4Law (Chinese)

Legal History 4(in Chinese)


Jurisprudence 3(English and Chinese)

Legal Philosophy 3(English and Chinese)

International Law 4(English and Chinese)

Conflict of Laws (English) 4Comparative 2

Constitutional Law (English Chinese)

Principles of Legislation 2(English)

Legal Ethics (English) 1Legal Essays 1

(English and Chinese)Legal Forms and 1

Documents(English and Chinese)

Practice Court 2

Elective Courses (Anglo-American Law): Chattels, Trusts, Pleadings, Corpo-rations, Persons, Equity, Sales, Criminal Law, Agency, Damages, Partner-ship, Admiralty, Suretyship, Insurance, Carriers.Elective Courses (Other Comparative Law): French Civil Law, Soviet Russ-ian Civil Law, Japanese Civil Law, Swiss Civil Law, World ComparativeCivil Law.


First Year Required Courses—Fall and Spring Terms (40 credits)

Chinese Literature (2 credits) Chinese Literature (2 credits)English Literature (3) English Literature (3)Second Foreign Language (3) Second Foreign Language (3)World History (2) World History (2)Political Science (3) Political Science (3)Economics (3) Logic (3)Sociology (3) Psychology (3)Elementary Law (1) Elementary Law (1)


Second Year Required Courses—Fall and Spring Terms (36 credits)

Chinese Constitutions Comparative Constitutions (2 credits) (2 credits)

International Law (2) International Law (2)Chinese Criminal Law (3) Chinese Criminal Law (3)Chinese Civil Law Chinese Civil Law

(General Principles) (3) (General Principles) (3)Parliamentary Law (1) Chinese Criminal Procedure (3)Chinese Court Anglo-American

Organization (2) Criminal Law (2)Roman Law (2) Roman Law (2)Criminology (2) Penology (2)Law Latin (2)

Third Year Required Courses—Fall and Spring Terms (36 credits)

Chinese Civil Law Chinese Civil Law(Obligations) (4 Credits) (Obligations) (4 credits)

Chinese Civil Law Chinese Civil Law (Property) (3) (Property) (3)

Chinese Civil Law Chinese Civil Law (Family) (3) (Family) (3)

Chinese Civil Procedure (3) Chinese Civil Procedure (3)Anglo-American Anglo-American

Contracts (3) Contracts (3)Anglo-American Anglo-American

Electives (2) Electives (2)

Fourth Year Required Courses—Fall and Spring Terms (36 credits)

Chinese Company Law Chinese Admiralty Law (2 credits) (2 credits)

Chinese Negotiable Chinese Insurance Law (2)Instruments

Law (2) Chinese Land Law (2)Chinese Labor Law (2) Chinese Bankruptcy Law (1)Chinese Civil Procedure (3) Chinese Execution

of Judgments Law (1)


Evidence (2) Evidence (2)Anglo-American Torts (2) Anglo-American Torts (2)German or French German or French

Civil Law (2) Civil Law (2)Political Thought (2) Introduction to Philosophy (2)

Chinese Administrative Law (2)

Fifth Year Required Courses—Fall and Spring Term (32 credits)

Chinese Legal History World Legal History (2 credits) (2 credits)

Chinese Comparative Chinese Comparative Criminal Law (2) Criminal Law (2)

World Comparative World Comparative Civil Law (2) Civil Law (2)

Jurisprudence (3) Legal Philosophy (3)Anglo-American Conflict Anglo-American Conflict

of Laws (2) of Laws (2)Legal Forms (1) Principles of Legislation (2)Practice Court (2) Practice Court (2)Forms of Documents (1)Thesis (1) Thesis (1)

Comparative Law Electives

Anglo-American: Agency, Damages, Equity, Per-sons, Sales, Trusts, Corporations, Succession,Property, Public Utilities, Suretyship and Trans-portation.

Continental Law: French or German Civil Law, So-viet Russian Civil Law, Japanese Civil Law andSwiss Civil Law.

Comparative Jurisprudence: World Legal Systems,Comparative Civil Procedure and ComparativeConstitutional Law.



First Year of Study

Constitutional Law Political ScienceCourt Organization Law EconomicsGeneral Principles Sociology

of Criminal LawGeneral Principles Legal Logic

of Civil LawMandarin Second Foreign LanguageEnglish

Second Year of Study

Criminal Law Anglo-American Contracts(Particular Crimes)

Civil Law (Obligations) Anglo-American TortsCivil Procedure Anglo-American Criminal LawIntroduction to Roman Law

Commercial LawLabor Law Second Foreign Language

Third Year of Study

Civil Law (Things) Anglo-American Property LawCivil Procedure Anglo-American Family LawCriminal Procedure EvidenceCompany LawNegotiable InstrumentsBankruptcy LawExecution of Judgments

Fourth Year of Study

Public International Law Anglo-American EquityPrivate International Law Legal EthicsAdministrative Law Legal PhilosophyCivil Law (Family) Continental Civil Law


Civil Law (Succession) Legal HistoryInsurance Law Trial PracticeMaritime Law Legal Essay

Anglo-American Electives: Succession, Company Law, Damages, Sales,Agency, Partnership, Trusts, Legal Persons, Public Utilities, Procedure.Comparative Electives: German Civil Law, German Criminal Law, Compar-ative Civil Law, Comparative Criminal Law, Comparative Procedure Law.(Other electives in Chinese law or political science, etc.)

n o t e s

The support of the Chiang Ching-kuo Foundation and the Woodrow Wilson In-ternational Center for Scholars is gratefully acknowledged; I would also like tothank Jerome A. Cohen, Jamie P. Horsley and William C. Jones for their commentson an earlier version of this essay. This article is part of a larger project on the his-tory of Soochow Law School and the role its graduates have played in the develop-ment of a modern Chinese legal profession. Earlier articles include Alison W. Con-ner, “Training China’s Early Modern Lawyers: Soochow University Law School,” 8J. Chin. L. 1 (1994) and “Lawyers and the Legal Profession during the RepublicanPeriod,” in Civil Law in Qing and Republican China (Kathryn Bernhardt and PhilipC.C. Huang, eds., 1994) 215.

1. See for example, David S. Clark, “Transnational Legal Practice: The Need forGlobal Law Schools,” 46 Am. J. Comp. L. 261 (1998). John Edward Sexton, “TheGlobal Law School Program at New York University,” 46 J. Legal Ed. 329 (1996).Vivian Grosswald Curran, “Cultural Immersion, Difference and Categories in U.S.Comparative Law,” 46 Am. J. Comp. L. 43, 54 (1998). Annelise Riles, “Wigmore’sTreasure Box: Comparative Law in the Era of Information,” 40 Harv. Int’l L. J. 221(1999). Panel discussions of such programs have also featured prominently at pro-fessional meetings in the last few years, including “Emerging Worldwide Strategiesin Internationalizing Legal Education,” presented January 6, 2000, at 2000 AnnualMeeting of the Association of American Law Schools held January 5–9, 2000, inWashington, D.C.; and “Comparative Law and Legal Education,” presented No-vember 3, 2000, at the Centennial World Congress on Comparative Law, held No-vember 1–4, 2000, in New Orleans.

2. Julius Goebel, Jr., A History of the School of Law, Columbia University 328(1955). Most American law schools, despite some notable exceptions, emphasizedcomparative and international law only in the postwar years. Robert Stevens, LawSchool: Legal Education in America from the 1850s to the 1980s 222, n. 42 (1983).Columbia University was one of those exceptions; its law school revived the study


of comparative law with the establishment of the Parker School for Foreign andComparative Law in 1931. Goebel, supra, at 328–329. Tulane Law School also of-fered a strong comparative law program, one that most resembled Soochow’s in itscombined teaching of civil and common law courses. “History and Unique Quali-ties,” Tulane Law School Catalogue, www.law.tulane.edu.

3. Harvard’s Manley O. Hudson. In a 1927 speech at the Law School, he said:“Although I have some acquaintance with law schools in other parts of the world,I know of no other school of comparative law. . . . But your school is different as Iunderstand it, instruction in the national law is given on a basis of comparisonwith Anglo-American and civil law, and yours is the only school I know which re-ally deserves the name of a comparative law school.” Hudson, “Address at the In-augural Exercises,” 3 China L. Rev. 148, 149 (1927).

4. Since the LL.B. always constituted the heart of Soochow’s programs andproduced the most graduates, this article will focus on the LL.B. curriculum. TheLaw School did offer other sections or even degree programs, including an ac-counting section from 1937 to 1947; the accounting curriculum included manylaw courses and accounting graduates also received an LL.B. degree, but they stud-ied almost no comparative law. Soochow University Law School Accounting De-partment, SUDECAC [Soochow University Decade of Accounting] 1939–47 (1947).The school’s LL.M. program did emphasize comparative law, but few students en-rolled in it.

5. In 1927 the school changed its name to the Dongwu Daxue Falu Xueyuan(Soochow Law School) and in 1935 to Dongwu Daxue Faxueyuan (Soochow LawSchool), name changes reflected in all the school’s documents. “Dongwu Fax-ueyuan” [Soochow Law School], in Shanghai Gaodeng Xuexiao Yange [History ofShanghai Schools of Higher Education] (Xin Fuliang and Zhao Andong, eds.,1992) 149–153 [hereinafter History of Shanghai Schools]. The school is referredto herein as “Soochow,” the “Law School” or the “CLS.”

6. Soochow University (the “University”) was established in 1900 in the city ofSuzhou (i.e., Soochow) by American missionaries from the Methodist EpiscopalChurch South. For a general history of the University, see W.B. Nance, SoochowUniversity (1956); Chen Tingrui (D.S. Chen), “Sili Dongwu Daxue” [SoochowUniversity], in Zhonghua Minguo Daxue Zhi [University Annals of the Republic ofChina] (Zhang Qiyun, ed., 1953) 153–55. The University was one of the thirteenProtestant colleges in China under the general direction of the Associated Boardsfor Christian Colleges (now known as the United Board for Christian Higher Edu-cation in Asia). For a comprehensive general treatment of those colleges, includingthe University, see Jessie G. Lutz, China and the Christian Colleges 1850–1950(1971).

7. Nance, supra n. 6, at 70–71.8. Nance, supra n. 6, at 71.9. Under the terms of the nineteenth-century “unequal treaties” between China


and the Western powers, foreigners had been granted extraterritorial privileges(the right to be tried in consular courts under their own laws rather than by theChinese legal system) and territorial “concessions” (i.e., large areas of land leased inperpetuity at low rates) in the treaty ports along the coast of China. John K. Fair-bank et al., East Asia: The Modern Transformation 144–145, 340–342 (1973).Shanghai was effectively divided into three sections, consisting of the Chinese-ad-ministered city, the French Concession and the International Settlement. The lat-ter, by far the larger of the two foreign concessions, had been formed from themerger of the British and American areas in 1863. Id. at 340. See Nicholas R. Clif-ford, Spoilt Children of Empire 16–36 (1991). British and American lawyers basedin Shanghai practiced before (or served as judges in) the foreign consular courts inShanghai, and until its replacement in 1927, the Shanghai Mixed Court as well. TheUnited States Court for China, for example, was created in 1906 to replace consularstaff with professional legal experts; it ordinarily sat in Shanghai and in practiceheld the same position as a United States District Court, with appeals to the CircuitCourt of Appeals for the Ninth Circuit in San Francisco. Its jurisdiction coveredprobate matters, matters relating to marriage and divorce of Americans, and theactivities of U.S. corporations in China. G.W. Keeton, 2 The Development of Ex-traterritoriality in China 78–80, 126–131 (1928); William C. Johnstone, Jr., TheShanghai Problem 159 (1937). In addition to the foreign courts, the InternationalSettlement was also served by the Shanghai Mixed Court, established in 1864; itused Western judicial procedure and handled cases between Chinese and cases inwhich Chinese were defendants. Fairbank, supra, at 341. For a detailed treatmentof the Mixed Court, see A.M. Kotenev, Shanghai: Its Mixed Court and Council(1925). See also Tahirih V. Lee, “Risky Business: Courts, Culture and the Market-place,” 47 Miami L. Rev. 1335 (1993); Thomas B. Stephens, Order and Discipline inChina: The Shanghai Mixed Court 1911–1927 (1992). On the U.S. Court for China,see Eileen P. Scully, Crime, Punishment, and Empire: The United States DistrictCourt for China, 1906–1943 (1993) (Ph.D. dissertation, Georgetown University).

10. Charles W. Rankin, “China,” 2 A.B.A.J. 284, 284 (1916).11. Joseph K. Cheng, Chinese Law in Transition: The Late Ch’ing Law Reform

1901–1911 (1976) (Ph.D. dissertation, Brown University). Serious efforts at lawdrafting began in 1904 and as a result a criminal code was promulgated at the endof the Qing dynasty (1644–1911). Both codes were adopted by the Republicangovernment and continued with some modifications after 1912. Chuzo Ichiko,“Political and Institutional Reform, 1901–11,” in 11 The Cambridge History ofChina 11 (John K. Fairbank and Kwang- ching Liu, eds., 1980) 375–415, 408;Douglas R. Reynolds, China, 1898–1912: The Xingzheng Revolution and Japan 130,179–85 (1993). Other legislation was enacted by the new republican governmentduring the 1910s and early 1920s, but some of the most important laws, includingthe full civil code and a new criminal code, did not appear until the late twentiesand early thirties. Jyh-pin Fa, “Early 20th-Century Law Reform in China,” in Con-


temporary Republic of China: The Taiwan Experience 1950–1980 (Hungdah Chiu,ed., 1983) 287–90.

12. Wejen Chang, “Legal Education in Ch’ing China,” in Education and Societyin Late Imperial China, 1600–1900 (Benjamin A. Elman and Alexander Woodside,eds., 1994) 292–338. Wejen Chang, “Qingdai de Faxue Jiaoyu” [Legal Education inQing China], 18 Faxue Luncong [Collected Law Essays] 1 (1988). Systematic andmore formal legal training was only introduced in China at the turn of the twenti-eth century. See Joseph K. Cheng, supra n. 11, at 141–154.

13. The first general regulations recognizing private lawyers were enacted onSeptember 16, 1912. Lushi Zhanxing Zhangcheng [Provisional Regulations onLawyers], 5(1) Zhengfu Gongbao [Government Gazette] 108 (1912). See Alison W.Conner, “Lawyers and the Legal Profession during the Republican Period, in CivilLaw in Qing and Republican China (Kathryn Bernhardt and Philip C.C. Huang,eds., 1994) 215; Wang Shen, Zhongguo Jindai Lushi Zhidu yu Lushi [China’s Mod-ern Lawyer System and Lawyers] 41 (1994). For a study of the traditional quasi-professional litigation specialists, whose activities were prohibited by the Qinggovernment, see Melissa Macauley, Social Power & Legal Culture: Litigation Mas-ters in Late Imperial China (1998).

14. W.W. Blume, “Legal Education in China,” 1 China L. Rev. 305, 306 (1923).Editorial [W.W. Blume], “Judge Lobingier’s Work in China,” 1 China L. Rev. 432(1924).

15. C. Sumner Lobingier, “Legal Education in Twentieth Century China,” 4Lawyers Guild Magazine 1 (1944). “Judge Lobingier (An Appreciation),” 1 China L.Rev. 264 (1923). Charles Sumner Lobingier, “The Beginnings of My Judicial Ser-vice in the Philippines,” 22 Case and Comment 1012 (1916). For more on his activ-ities see also Scully, supra n. 9, at 251–254, 259–262, 268–269, 277–288.

16. Lobingier, “Legal Education,” supra n. 15, at 2. Lobingier served as a facultymember and later as “advisor member of faculty”; he frequently wrote for the CLSlaw journal and continued to take an interest in the school even after he had re-turned to the United States. Soochow University, Courses and Announcements,1919–1920, United Board for Christian Higher Education in Asia Archives, DayMissions Library, Yale University, No. 269/4287 [hereafter United Board Archives].Dongwu Daxue Faluke Zhangcheng [Regulations of Soochow University Law De-partment], 1923–1924, 1925–1926, 1926–1927, Shanghai Municipal Library. Forhis articles, see the China Law Review, discussed below.

17. Lobingier, “Legal Education,” supra n. 15, at 2.18. 1919–20 Announcements, supra n. 16.19. Wang had studied in England, France and Germany as well as in Japan.

Howard L. Boorman and Richard Howard, eds., 3 Biographical Dictionary of Re-publican China 376–378 (1979); China Weekly Review, Who’s Who in China800–801, (1925); Who’s Who in China 246–247 (1936). Student Body of the Com-parative Law School of China, 2 The Woolsack 23 (1924).


20. “If this edition of the German Civil Code creates among the English-speaking peoples an interest, however slight, in the study of comparative law, thelabour which I have bestowed on this work will be amply repaid.” Chung HuiWang [Wang Chonghui], trans., The German Civil Code viii (1907).

21. At the University of Michigan School of Law. See Elizabeth Gaspar Brown,in consultation with William Wirt Blume, Legal Education at Michigan 1859–1959(1959).

22. Blume, “Legal Education,” supra n. 14, at 210.23. Id., at 311.24. Editorial [Blume], 1 China L. Rev. 33, 34 (1922).25. Blume was echoing, or perhaps anticipating, the views of American legal

academics. Roscoe Pound, for example, argued that the function of comparativelaw was not to supply ready-made rules for adoption, but to “furnish us an impor-tant mass of raw material for creative lawmaking.” Roscoe Pound, “The Revival ofComparative Law,” 5 Tulane L. Rev. 1, 14–15 (1930).

26. The school always used the term “Anglo-American law” (yingmei fa) ratherthan “common law” (putong fa) to refer to its specialty, at least in part becauseboth American- and English- trained lawyers taught there in the school’s earlyyears. Of course Soochow’s formative years also coincided with the high point ofshared views on legal issues on both sides of the Atlantic. See Richard A. Cosgrove,Our Lady the Common Law: An Anglo-American Legal Community, 1870–1930(1987). It was a plausible view at the time the school was founded, even if the twolegal systems no longer seem so closely related. Mattias Reiman, “Stepping Out ofthe European Shadow: Why Comparative Law in the United States Must DevelopIts Own Agenda,” 46 Am. J. Comp. L. 637, 641 (1998).

27. The standard subjects in American law schools then were: Agency, Bail-ment and Carriers, Bankruptcy, Bills and Notes, Conflicts, Constitutional Law,Contracts, Corporations (Private), Corporations (Public), Damages, Domestic Re-lations, Equity, Evidence, Insurance, Mortgages, Partnership, Pleadings, Property,Quasi-Contracts, Sales, Suretyship, Torts, Trusts, Wills and Administration. AlfredZ. Reed, Present-Day Law Schools in the United States and Canada 254–255 (1928).Soochow was regularly teaching all of those courses.

28. According to materials in student files and early course bulletins, the cur-riculum underwent little change for students graduating between 1918 and 1923.Student files, Shanghai Municipal Archives, Q245–273. 1919–1920 Announce-ments, supra n. 16. Dongwu Daxue Faluke Zhangcheng [Regulations of SoochowUniversity Law Department], 1923–1924, Shanghai Municipal Library.

29. Nance, supra n. 6, at 75, 79. Even after the CLS was able to move to its ownset of buildings in the early twenties, its facilities remained fairly spartan.

30. Charles S. Lobingier, “The Value and Place of Roman Law in the TechnicalCurriculum” [typed copy of Inaugural Address as President, Far Eastern AmericanBar Association] 22 (1914).


31. Id.; also Charles S. Lobingier, “The Place of Roman Law in the Legal Cur-riculum,” 1 China L. Rev. 332, 332–333 (1922).

32. According to records for the class of 1918, students enrolled in only twocourses in Chinese law (a few others were listed on the forms but not actually of-fered). Student files, Shanghai Municipal Archives, Q245–273. See the curriculumchart for the class of 1918 appended to this article. Early students did, however,take three or four religious courses, owing to Soochow’s origins as a Protestantcollege.

33. Blume, “Legal Education,” supra n. 14, at 311.34. The earliest included D.S. Chen, S.C. Ho, his brother S.M. Ho, and John

C.H. Wu, all 1920 or 1921 graduates. The Student Body of the Comparative LawSchool of China, 2 The Woolsack 18–21 (1924).

35. “The Class of 1925,” id., at 65.36. Hudson, supra n. 3, at 149.37. Interview, Taipei, July 26, 1987.38. Yu Kwei [Kwei Yu], “Some Judicial Problems Facing China,” 23 Wash. L.

Rev. and State Bar Journal 363, 370 (1945). In the same article he recommendedfurther comparative study, especially in commercial law.

39. That “gulf between rhetoric and reality” was reminiscent of some Ameri-can law schools of a slightly earlier day. In the 1890s, for example, the ColumbianLaw School (later George Washington Law School) described itself as a “School ofComparative Jurisprudence”—although it was still a night school preparing gov-ernment clerks for the bar examination. Stevens, supra n. 2, at 40.

40. Consequently, other schools also initially adopted a “comparative” ap-proach, and a few also taught Western law. When Cai Yuanpei, president of Na-tional Peking University, was organizing its law department, he decided to usecomparative law as a starting point, in order to make the best use of existing re-sources at a time when the legal system was still undergoing development and re-vision. E-tu Zen Sun, “The Growth of the Academic Community 1912–1949,” in13 The Cambridge History of China (John K. Fairbank and Albert Feuerwerker,eds., 1986) at 372. The Law School of National Peiyang (Beiyang) University,founded in the late nineteenth century, had also begun by teaching Anglo-Ameri-can law and its program was similar to Soochow’s in many respects, but it wasmerged into Peking University in 1918. Yuen-li Liang, “The Harvard Law School,Some of Its Chinese Alumni and Some Chinese Law Schools in Relation to It,” 2Soochow L. Rev. 82, 83 (1978). Aurora University (Zhendan Daxue), also foundedin Shanghai and discussed below, taught French law. As Blume noted, the mostcommon foreign influence was Japanese, since many Chinese students had studiedlaw or “law and politics” in Japan, and they returned to teach those subjects inChina. Blume, “Legal Education,” supra n. 14, at 305–307. See also Reynolds, supran. 11, at 52–61. For a discussion of the earliest comparative law study in China, seeTao Guangfeng, “Qingmo Minchu Zhongguo Bijiao Faxue de Chansheng” [The


Emergence of Comparative Law Study in the Late Qing and Early RepublicanChina], Faxue Yanjiu [Law Journal of the Chinese Academy of Social Sciences] 67(1998).

41. Some of the most important enactments, all based on civil law models andmany enacted in amended versions, included the Civil Code (1929–1931), the In-surance Law (1929), the Company Law (1929), the Maritime Law (1929), the Ne-gotiable Instruments Law (1929), the Criminal Code (1935), the Code of CivilProcedure (1935), the Code of Criminal Procedure (1935) and the BankruptcyLaw (1935). See Jyh-pin Fa, supra n. 11, at 287–290. Translations of most of thosecodes appeared in the China Law Review, the CLS English-language law journaldiscussed below. For an analysis of some of those laws, see Jean Escarra, ChineseLaw: Conception and Evolution, Legislative and Judicial Institutions, Science andTeaching (Gertrude R. Browne, trans., 1940); Marinus Meijer, The Introduction ofModern Criminal Law into China (1950); V.A. Riasanovsky, Chinese Civil Law(1938); William C. Kirby, “China Unincorporated: Company Law and BusinessEnterprise in Twentieth- Century China,” 54 Journal of Asian Studies 43 (1995);William P. Alford, To Steal a Book Is an Elegant Offense (1995); Bernhardt andHuang, supra n. 13; Philip C.C. Huang, Code, Custom and Practice in China (2001).

42. John Israel, Lianda: A Chinese University in War and Revolution 95–99(1998). Ruth Hayhoe, China’s Universities 1895–1995: A Century of Cultural Con-flict 50ff. (1999). Wen-hsin Yeh, The Alienated Academy: Culture and Politics in Re-publican China, 1919–1937 2–3 (1990).

43. During the 1929–1930 academic year, the Law School’s enrollment reached198 students, including graduate students, and during the thirties some 70 to 85students graduated every year. Lists of graduates in Shanghai Municipal Archives,Q245–270, and a list of all graduates through 1946 contained in the 1946 year-book. Soochow University Law School, 5 The Woolsack (1946).

44. Nance, supra n. 6, at 80–81.45. According to a 1924 graduate, it was only after the installation of a Chinese

administration that the school offered a truly comparative program. Li Zhongdao[Henry Lee], “Huiyi Dongwu Faxueyuan” [Recollections of Soochow Law School],Dongwu Daxue Jianxiao Jiushi Zhounian Jiniankan [Publication Commemoratingthe Ninetieth Anniversary of Soochow University] 35, 36 (1991). Materials pro-vided by Soochow University (Taipei).

46. Hudson, supra n. 3, at 148 (writing after Wu’s appointment in 1927). “Hisbrilliant scholarship, his prominent public career, and his extensive connectionshave all been valuable assets in building up the name and prestige of the LawSchool. . . .” Soochow University, President’s Report to the Board of Trustees (for theYear 1940) 13 (1940), United Missions Board Archives, No. 271/4313.

47. See for example the course description for Jurisprudence in the Compara-tive Law School of China, Annual Announcement 1930–31, 7, United MissionsBoard Archives, No. 269/4294.


48. Nance, supra n. 6, at 80–81; Li Zhongdao, supra n. 45, at 36. CLS facultyminutes and administrative files in the Shanghai Municipal Archives indicate thatSheng saw to the school’s day-to-day operations during those years, and in anyevent Wu was often on leave.

49. Sheng, a graduate of Soochow University (1921) as well as of the LawSchool, was affiliated with the CLS from 1927 until the new Communist govern-ment removed him in 1951. He served as dean from 1927 until 1940, as principalfrom 1942 to 1949 and even as acting president of the University after World WarII. During his years at Soochow, Sheng taught Evidence, Elementary Law andother common law courses, wrote for its law journals and served as journal editor.Although he was also a member of the Shanghai bar and served on the Codifica-tion Commission, he was more closely involved in running the Law School thanalmost anyone else. Interview, Shanghai, July 30, 1990; “Dongwu Xiaoshi jiZhongda Shijian” [Soochow History and Important Events], handwritten state-ment by Dean Sheng, Shanghai Municipal Archives, Q245–251; faculty files,Shanghai Municipal Archives, Q245–60 and Q245–8. Minguo Renwu Dazidian[Biographical Dictionary of Republican China] 820 (1991).

50. Wigmore served as dean from 1901–1929. James A. Rahl and Kurt Schw-erin, Northwestern University School of Law—A Short History 20 (1960). Wigmorehad himself lived in Asia and was the author of Panorama of the World’s Legal Sys-tems (1928), A Kaleidoscope of Justice (1941) and Law and Justice in TokugawaJapan (1941). William R. Roalfe, John Henry Wigmore: Scholar and Reformer 21–31(1977). Wigmore was very interested in Asian legal systems, despite what mightnow be seen as “shameless Orientalist appeals to the exoticism of foreign legality.”Anneliese Riles, supra n. 1, at 262. Sheng was not the only Soochow graduate tostudy with Wigmore: Shelley Sun, another strong proponent of comparative lawstudy, followed Sheng to Northwestern.

51. Sheng Zhenwei, “Shijiunianlai zhi Dongwu Falu Jiaoyu” [Nineteen Years ofLegal Education at Soochow], 7 Faxue Zazhi [Law Magazine] 135 (1934).

52. “Italian Law in China,” 6 China L. Rev. 1, 4 (1933). Soochow’s introductionof the course, to be taught by a “well- known Italian lawyer,” was the occasion oftelegraphed congratulations from Mussolini to John Wu. “In view of the fact thatItalian Corporative Law as adopted and established by Signor Mussolini hashelped to make Italy into a strong and united power, it is believed that a course onthis law will be of great value in China, especially at this time when the country isbadly in need of a better system of organization.” Id., at 4. In 1933, talk about fas-cism had become something of a fashion in China, and Chinese newspapers ad-vertised many publications on fascism. Frederic Wakeman, Jr., “A Revisionist Viewof the Nanjing Decade: Confucian Fascism,” No. 150 China Quarterly 395, 426(1997).

53. Interview, Shanghai, July 30, 1990.54. 1930–31 Announcement, supra n. 48, 8.


55. 8 China L. Rev., inside cover (1935). In 1932, the Association of AmericanLaw Schools resolved that all member schools should have at least 10,000 volumesin their libraries. Stevens, supra n. 2, at 176.

56. Interview, Shanghai, July 30, 1990.57. During the thirties, Soochow published and distributed several of its li-

brary catalogs. Soochow University Law School, Library Catalogue (1933) andSoochow University Law School, Library Catalogue (1937). Documents relating tothe school’s 1952 closure also support the school’s claim to large holdings in abroad range of areas. Shanghai Municipal Archives, Q245–231 to Q245–234.

58. After obtaining his J.S.D. from Northwestern in 1929, Sun returned to theCLS, where he taught Labor Law and Elementary Law and also served as associatedean during the thirties. Sun actively supported the CLS law journals and editedseveral special issues of the Faxue Zazhi, including an issue on comparative legaleducation. His other works include Laodong Faxue [Labor Law] (1935) and Ling-shicaipanquan Wenti [Problems of Consular Jurisdiction] (1936). Sun served as ajudge on the Shanghai District Court (1931–1933) and later as head of ChaoyangCollege (Chaoyang Xueyuan) from 1941–1945. Faculty files, Shanghai MunicipalArchives, Q245–8.

59. Sun Xiaolou, Falu Jiaoyu [Legal Education] 74–78 (1935). This book wasrepublished (with an introduction by Wang Jian) by the Chinese University ofPolitics and Law Press in 1997.

60. Id., 71–78.61. As there was in the forties, for example. See the faculty listings in the 1946

Woolsack, supra n. 43.62. Liu studied in Europe for three years after graduating from Yale (LL.B.

1924), first at Gˆttingen and Berlin, and then at Grenoble. In 1927 he returned toShanghai, where he practiced law and was also affiliated with the CLS for the nexttwenty years. Although he was educated in both common and civil law systems,his specialty was German civil law, and he occasionally taught courses in Obliga-tions, Roman Law and Legal Philosophy. Faculty files, Shanghai MunicipalArchives, Q245–82, Q245–83 and Q245–84. China Weekly Review, Who’s Who inChina 281–282 (1931); 1936 Who’s Who in China, supra n. 19, 169.

63. By 1932 the Law School’s faculty was larger and its instructors had morediverse training and specialties than before 1927. See the list of faculty members inSili Dongwu Daxue Falu Xueyuan Yilan, 1932–33 [Guide to Soochow Law School]2–8, Shanghai Academy of Social Sciences Library.

64. Sili Dongwu Daxue Faxueyuan Yilan 1935–36 [Guide to Soochow LawSchool] 7 lists one of them. Shanghai Municipal Library. Of course some part-time faculty members had better qualifications than others, and foreign instruc-tors from the same country might also have very different training. Of the Ger-man teachers, Rudolf Kahn had a London University law degree, was a member ofGray’s Inn and had formerly lectured at Berlin University before practicing law in


Shanghai. H. Baerensprung, who taught German criminal law, had studied atHamburg University and in China was affiliated with the Police Academy. SiliDongwu Daxue Faxueyuan Yilan 1936–37 [Guide to Soochow Law School] 9–10,Shanghai Academy of Social Sciences Library.

65. The school’s ideal remained a professionally-oriented three-year law pro-gram begun after the completion of at least two years of college, although the for-mat of the five-year program varied greatly. At first the law program was taughtseparately, following two years of undergraduate study, which could be taken atany recognized college, not just at Soochow. But the CLS also experimented withits own two-year preparatory course (yuke, to distinguish it from the benke, orLL.B. program), which was sometimes offered at the University in Suzhou andsometimes at the CLS in Shanghai.

66. Overall, the curriculum changed little from 1927–1931; despite a gradualshift to more Chinese law courses, a heavy comparative and common law compo-nent remained. The courses are listed in Sili Dongwu Daxue Falu XuyuanYuanzhang [Regulations of Soochow Law School], 1927–1928, 1929–1930,1930–31, Shanghai Municipal Library.

67. In the 1930–1931 academic year, the school was still teaching a three-yearlaw course; by the 1932–1933 academic year, it had moved to an integrated five-year course taught in Shanghai. 1930–1931 Announcement, supra n. 48; 1932–1933Guide, supra n. 64. (No catalog is available for 1931–1932.) Soochow experi-mented with a four-year “day” law program during the 1933–1934 academic year,adding it to the regular five-year “evening” program taught in the late afternoon,but the enrollment was not high enough to support both programs and the daysession was dropped the next year. Soochow University, President’s Report for theYear 1933–1934 11, United Missions Board Archives, No. 271/4312. Despite somevariations in specific courses during the thirties, the basic comparative law pro-gram remained the same.

68. During 1932–1937, however, students were permitted to transfer to theCLS from other schools in their first three years of study; no transfers were per-mitted in the fourth or fifth year. See, for example, the school’s regulations in the1932–1933 Guide, supra n. 64, at 13ff.

69. See 7 China L. Rev., inside cover (1934) for an example of the school’s ad-vertisements.

70. In his 1940 report, the University’s president announced the earlier ap-pointment of an expert in continental law, which would round out the LawSchool’s program of instruction “by having special men looking after the threefields of Chinese law, Anglo-Saxon law and Continental law.” 1940 President’s Re-port, supra n. 47, at 13.

71. In 1932–1933, for example, when the CLS moved to a five- year program,the courses clearly fell into this general division. See the course descriptions in the1932–1933 Guide, supra n. 64, at 29ff.


72. See the curriculum charts at the end of this article. The Law School’s cur-riculum was virtually identical during the 1932–1933 and 1933–1934 academicyears. 1932–1933 Guide, supra n. 64, 29–38. Sili Dongwu Daxue Falu XueyuanYilan, 1933–34 [Guide to Soochow Law School] 33–50, Shanghai Academy of So-cial Sciences Library.

73. The Law School offered almost as many Chinese law courses as did the Na-tional Central University during those years. A list of National Central’s law de-partment courses appears in Sun, supra n. 60, at 178–187.

74. As indicated in the catalogs and bulletins cited above (some jiangyi are alsoin the Shanghai Municipal Archives files).

75. The number of courses varied somewhat from year to year; it was veryhigh in the late twenties, had dropped by the mid- thirties, but then increasedagain at the end of the thirties. In 1927–1928, the school still taught ten coursesentirely in English (others were taught partly in English), most of them clearlycommon law courses in content and organization. In 1927–1928, those courses in-cluded Contracts, Torts, Principles of Law/Elementary Law, Property, Evidence,Company Law, Bills and Notes, Public Corporations, Legal Ethics and evenRoman Law. 1927–1928 Guide, supra n. 67, at 9–18.

76. The Elementary Law course was intended to provide law students with abetter understanding of law and its impact on society. See Simeon E. Baldwin,“The Study of Elementary Law, the Proper Beginning of a Legal Education,” 13Yale L. J. 1 (1903). During those years, the CLS generally used Ferry, First Princi-ples of Law as its text for the course. 1936–1937 Guide, supra n. 65, at 50.

77. The Law School usually listed its Conflicts course in the Anglo-Americanlaw section of the catalog; see for example the 1932–1933 Guide, supra n. 64, at 8.Goodrich, Conflict of Laws was the assigned text. 1936–1937 Guide, supra n. 65, at56.

78. Sun, supra n. 60, at 33–34, 191; Blume, “Legal Education,” supra n. 14, at310–311.

79. Lobingier, Inaugural Address, supra n. 30, at 14.80. At National Central University, for example; see Sun, supra n. 60, at 78–87.81. Interview, Shanghai, July 30, 1990.82. 1932–1933 Guide, supra n. 64, at 9. Other Anglo-American electives in-

cluded Chattels, Pleadings, Partnership, Admiralty, Insurance, Carriers and Med-ical Jurisprudence, all listed in the 1930–1931 Announcement, supra n. 48, at 7 asoffered during the years 1930–1933; Banking, Family Law and Succession were alllisted in the 1935–1936 Guide, supra n. 65, 42–43. In 1935–1936 the Law Schooloffered a total of thirteen Anglo-American electives.

83. 1932–1933 Guide, supra n. 64, at 7.84. Such as Williston, Cases on Contract and Hepburn, Cases on Torts, both

used regularly throughout the twenties and thirties, and Kenny, Cases on CriminalLaw. 1932–1933 Guide, supra n. 64, at 51, 53; 1935–1936 Guide, supra n. 65, at 47,


50. English-language texts were also assigned for non-law courses: Garner, PoliticalScience and Government; Ely, Outlines of Economics; and Blackmar and Gillin, Out-lines of Sociology. Id., 44–45.

85. 1932–1933 Guide, supra n. 64, at 53.86. Lists of essay topics in school files, Shanghai Municipal Archives,

Q245–397 and Q245–398. CLS students chose all sorts of topics for their legal es-says, including German succession law, women’s status in English law, French lawon mortgages, Anglo-American contract law or the U.S. Supreme Court.

87. 1932–1933 Guide, supra n. 64, at 50. It was a required course in the secondyear. Although Soochow usually listed Roman Law in the comparative law sectionof its catalog, the course continued to be required because American law schoolshad required it, and it was taught with an English-language textbook.

88. As described in the 1932–1933 Guide, supra n. 64, at 54.89. Interview, Shanghai, Nov. 24, 1992.90. 1932–1933 Guide, supra n. 64, at 48–49, 52.91. In both schools, the law department was only one of several departments

or divisions, with the others offering almost no law courses. Law was taught in de-partments or colleges (or “schools”) of universities (daxue), or at independent col-leges/institutes (xueyuan). Law study constituted a four-year program at the un-dergraduate level, with introductory and general courses given in the first year.Most law colleges had several departments, including political science, economicsor accounting as well as law, and they granted the LL.B. degree for completion ofstudies in any of their departments. Hugh Chan [Chen] [Chen Sheau], “ModernLegal Education in China,” 9 China L. Rev. 142 (1936), at 143–146.

92. The Shanghai College of Politics and Law was founded in 1924, and theShanghai College of Law was founded in 1926 by a breakaway group of its teach-ers and students; the two schools operated on a very similar model and enrolledmany more students than Soochow did. Both schools were closed during thePRC’s reorganization of higher education in the early fifties. See “Sili ShanghaiFazheng Xueyuan” [Shanghai College of Politics and Law], and “Sili Shanghai Fax-ueyuan” [Shanghai College of Law], in History of Shanghai Schools, supra, n. 5, at192–193, 201–207.

93. Shanghai Faxueyuan Yaolan [Essential Guide to Shanghai College of Law],Shanghai Municipal Archives, Q247–154. Shanghai Fazheng Xueyuan Yilan [Guideto Shanghai College of Politics and Law], Shanghai Municipal Archives,Q248–623. The Shanghai College of Law offered many more electives to its stu-dents; the Shanghai College of Politics and Law offered a little more comparativelaw and required more language study—but neither provided the range of coursesthat Soochow did.

94. This discussion of the National Central curriculum during the thirties isbased on course information in Sun, supra n. 60, at 178–187. Although law de-partments of the day (like the two Shanghai law colleges) often included political


science or economics divisions, National Central’s offered only law divisions. Thefirst two years of study were the same for all three divisions, with all requiredcourses and no electives; students took only two basic law courses in their firstyear.

95. Id.96. Its law school opened in 1911 (the university itself was founded in 1903).

UniversitÈ L’Aurore, UniversitÈ L’Aurore, Shanghai 63–88 (1935). During the thir-ties, its expanded law school was divided into departments of law and politicaleconomy, both teaching a mix of law and non-law courses in a four-year program.“Zhendan Daxue,” in History of Shanghai Schools, supra n. 5, at 62–75.

97. UniversitÈ L’Aurore, supra n. 97, at 70.98. Nance, supra n. 6, at 82. During the 1930s and 1940s, only four to five law

schools were authorized by the government to offer graduate law programs. Min-istry of Education Yearbook Compilation Committee, Diyici Zhongguo Jiaoyu Ni-anjian [First China Education Yearbook] 574–576 (1934).

99. Overall, the CLS granted only thirty-one master’s degrees in law, includingfourteen during the 1928–1937 decade and one in 1944; eighty-four percent(twenty students) had graduated with an LL.B. from the CLS. More than half(fourteen students) received their LL.M. degrees in 1947–1949 and the last two re-ceived them in 1951, when the school’s program and the school itself had changedgreatly from its early years. Student files, Shanghai Municipal Archives, Q245–319.The graduate program courses appear in the school’s catalogs from 1931–1937and again in 1940–1941.

100. News clipping, 1940s scrapbook, Shanghai Municipal Archives,Q245–268.

101. 1932–1933 Guide, supra n. 64, at 45, 55–56.102. 1936–1937 Guide, for example, supra n. 65, at 28–29.103. 1932–1933 Guide, supra n. 64, at 55.104. Id.105. As a form of scholarship and comparative law study. See the discussion in

Reiman, supra n. 26, at 638–640.106. The Soochow approach during the twenties and thirties resembled (or an-

ticipated) Pound’s. They did not advocate or engage in simple “rule comparison,”i.e., the comparison of rules of one jurisdiction on a given point with those of an-other, outside their historical and social setting, something that Pound criticized.But Pound thought that a comparison of technique, ideals or doctrines on a his-torical basis and from a functional standpoint was useful—and so did they. RoscoePound, “The Revival of Comparative Law,” 5 Tulane L. Rev. 1, 1930–1931, 14–15.

107. This approach resembles what Wigmore (Sheng’s teacher) thought com-parative law study should be, the “comparative study of a legal idea in differentsystems,” rather than simply looking at legal facts. For Wigmore, comparative lawmeant “the tracing of an identical or similar idea or institution through all or


many systems, with a view to discovering its differences and likenesses in varioussystems, the reasons for those variations . . . in short, the evolution of the idea orinstitution, universally considered.” That required an accurate understanding ofthe system in which the law had evolved. John Henry Wigmore, “ComparativeLaw: Jottings on Comparative Legal Ideas and Institutions,” 6 Tulane L. Rev. 48,50–52 (1931–1932).

108. Altogether, between 1922 and 1940 the Law School published ten vol-umes of the journals; issues appeared regularly during 1922–1927 and then againfrom 1929 to June 1937. Their publication was interrupted not only by personnelchanges, including the departure of Dean Blume in 1927, but also by the Sino-Japanese War in 1937. The Soochow faculty managed to publish one final issue in1940, before the 1941 outbreak of the Pacific War, but it proved impossible to con-tinue publication after that. The name of the Chinese journal, originally FaxueJikan [Law Journal], was later changed to Faxue Zazhi [Law Magazine], when itwas published separately. The English version was reprinted by Oceana Publica-tions in 1975.

109. Editorial, 1 China L. Rev. 33 (1922).110. Id., at 33–34.111. Id., at 34.112. Altogether Wu wrote some twenty articles or reviews for the journal, in-

cluding “The Juristic Philosophy of Judge Cardozo,” 2 China L. Rev. 109 (1925);and “The Mind of Mr. Justice Holmes,” 8 China L. Rev. 77 (1935). He also pub-lished a review of Wigmore’s Panorama of the World’s Legal Systems, which ap-peared in 4 China L. Rev. 392 (1931).

113. Charles Sumner Lobingier, “Introduction to Chinese Law,” 4 China L.Rev. 121 (1930); Charles S. Lobingier, “Shall China Have an Uniform Legal Sys-tem,” 6 China L. Rev. 327 (1933).

114. Blume, “Legal Education,” supra n. 14; Hugh Chan, “Modern Legal Edu-cation,” supra n. 92.

115. T.Y Ni, “The Present System of Notaries in China,” 10 China L. Rev. 91(1937).

116. C.H. Chang, Y.L. Liang, and John C.H. Wu, “Sources of Chinese CivilLaw,” 2 China L. Rev. 209 (1925); C.H. Chang, Y.L. Liang and John C.H. Wu, “Per-sons in Chinese Law,” 2 China L. Rev. 257 (1925).

117. John C.H. Wu, “The Struggle between Government of Laws and Govern-ment of Men in the History of China,” 5 China L. Rev. 53 (1932).

118. H.P. Chiu, “Origin and Purpose of Adoption,” 4 China L. Rev. 79 (1930);“Requisites of Adoption in Roman, Hindu and Chinese Law,” 4 China L. Rev. 133,181 (1930); and “Effect of Adoption in Roman, Hindu and Chinese Law” 4 ChinaL. Rev. 277 (1931).

119. John Wu, Charles Lobingier, W.W. Blume, Y.L. Liang and Kwei Yu, amongothers, all wrote for American law journals.


120. The editors published thirty-six articles on different aspects of Chineseand comparative legal education in volume 7 (1934); volume 8 (1935) featured ar-ticles on judicial systems; volume 9 (1937) focused on the prosecutorial process indifferent countries; and volume 6 (1933) featured articles on comparative laborlaw.

121. The new rule (discussed below) took effect with the entering class of1937, but classes entering in 1936 were still subject to the earlier curriculum andthe change was not fully implemented until they graduated (many students grad-uating in 1939 or 1940 had completed five years of study to obtain their degree).

122. The CLS still offered courses in German civil law and German criminallaw, comparative civil law, comparative criminal law, comparative procedure law,and History of World Legal Systems. Sili Dongwu Daxue Faxueyuan Zhangcheng1938–39 [Regulations of Soochow Law School] 16–22, Shanghai Municipal Li-brary. The CLS also offered ten electives in Anglo-American law.

123. Sili Dongwu Daxue Faxueyuan Zhangcheng 1941–42 [Regulations of Soo-chow Law School] 26–29, Shanghai Municipal Library. The Law School was stilloffering many other comparative law courses as electives.

124. Soochow University, The Moment of a Thousand Years (1942). After theoutbreak of the Pacific War, the Nationalist government suspended the operationsof all registered schools and universities in Japanese-occupied areas, so Soochowcould no longer operate officially in Shanghai. Nance, supra n. 6, at 108, 113.

125. What the Law School could teach depended in part on available instruc-tors. Dean Sheng headed the official incarnation of the school in Chongqing; sincethat city served as the wartime capital, he was able to draw on judges and othergovernment officials as well as former faculty members to teach at Soochow. SiliDongwu Daxue, Hujiang Daxue, Zhijiang Daxue Lianhe Fashanggong Xueyuan Xi-aokan [Publication of the Associated Law, Commerce and Engineering Colleges ofSoochow, Hangchow and Shanghai Universities] 5–6, 31–35 (1944–1945), Shang-hai Municipal Library. Faculty and course lists, “Soochow University Law School,”United Mission Board Archives, No. 269/4294. In Shanghai, a group of graduatesfrom the late twenties, all well- trained in common law and most of whom whohad studied abroad, remained behind, so the smaller, unofficial branch could stillteach common law courses. Francis Liu, an expert in German and continental lawand a long-time member of the faculty, also continued to teach in Shanghai dur-ing the Japanese occupation, and those courses too were available to CLS students.Sili Dongwu Daxue Faxueyuan Zhangcheng 1940–41 [Soochow Law School Regu-lations]. Woolsack Board, Class of 1944, the Comparative Law School of China, 3The Woolsack (1944); Law Class of 1945, the Comparative Law School of China, 4The Woolsack (1945). Liu Zhemin, “Taipingyangzhan Shiqi de Zhongguo BijiaoFaxue Xueyuan” [The Comparative Law School of China during the Pacific War],in Ninetieth Anniversary publication, supra n. 45, at 41–42. “Liushinian Qiu zhiSanshinian Dong,” [1937 Fall to 1941 Winter], The Woolsack 1946, supra n. 43.


126. This discussion is based on information in student files for the class of1949, Shanghai Municipal Archives, Q245–295. Only students in the law sectiontook comparative law, which somewhat diluted overall comparative teaching atthe Law School. The CLS had offered an accounting division since 1937, largelyfor financial reasons, to keep enrollments up; accounting students still graduatedwith an LL.B. but took fewer law courses and virtually no comparative law. Nance,supra n. 6, at 83. SUDECAC, supra n. 4, contains information on the accountingcourses taught, as do student files cited above.

127. As of 1947, the CLS had introduced judicial, administrative law and inter-national law divisions, in addition to its law and accounting departments. Enroll-ment was highest in the regular law division, and the law LL.B. still remained thecore of Soochow’s academic program, despite the new sections. 1946 Woolsack,supra n. 43. 1946, 1947, 1948 news reports, news clipping book, Shanghai Munici-pal Archives, Q245–268. Materials showing administrative structure of the CLS,1949–1950, Shanghai Municipal Archives, Q245–139.

128. Interview in Shanghai, November 18, 1992.129. A point made in the 1944 “Plan for the Soochow Law School Graduate

School,” Shanghai Municipal Archives, Q245–48.130. Minutes of CLS faculty meetings (Aug. 10, 1949 and Aug. 12, 1949),

Shanghai Municipal Archives, Q245–123. Interview with Dean Sheng, Shanghai,July 30, 1990.

131. Undated discussion of the proposed curriculum, prepared for submissionto the newly established East China education authorities, Shanghai MunicipalArchives, Q245–153.

132. The complete files relating to the school’s 1952 closure are in the Shang-hai Municipal Archives, Q245–231 to Q245–234. Lutz, supra n. 6, at 445–461, 477,481, describes the reorganization process and the resulting closure of the Protes-tant colleges, including Soochow. In the early fifties, Soochow University, includ-ing its law school, was refounded by its graduates and former teachers in Taiwan.Although no longer referred to as “The Comparative Law School of China,” theschool offered Anglo-American law in a special dual-track program. Its curricu-lum in the first years represented a return to the Shanghai school’s five-year pro-gram, and it still offers a combined civil and common law program to its students.Bulletin of Soochow University (Taiwan School), 1952–53, United Mission BoardArchives, No. 269/4289. Ninetieth Anniversary publication, supra n. 45.

133. Yu Kwei, supra n. 38, at 370. When he was first appointed a judge in 1935,he was “quite at a loss to carry on with my new job. The Anglo-American law Ilearned at school was of no practical use to me, since it was on a different track.”Id., at 371. He was nevertheless able to make the switch, and perhaps this was alsoa result of his CLS education: “Thanks to the rigid training I had received atschool—not in law in the practical phase, but the power of logical reasoning in ajudicious way—it did not take me long to overcome all the difficulties and I was


able to carry on fairly well.” Id. But his comments do illustrate a disadvantage ofSoochow’s early program: its graduates sometimes found that they knew littleabout Chinese law if they tried to pursue careers outside the foreign concessions.

134. According to the American lawyer Norwood Allman: “All law offices inShanghai were bilingual. It was absolutely necessary for an American firm to haveassociates who knew both the Chinese and the English languages. If an Americanlawyer intended to practice in the French or continental courts a fluency inFrench, plus a good working knowledge of the Code Napoleon and of Chineseand English law, was highly desirable. It also came in handy to have a staff assis-tant who had at least a nodding acquaintance with other continental codes.” Al-though he was speaking about an American (not a Chinese) law firm, his descrip-tion illustrates the international emphasis in Shanghai law practice. Norwood All-man, Shanghai Lawyer 115–116 (1943). Allman, who practiced law in Shanghai formany years, taught at the CLS during the twenties and also occasionally wrote forits law journal. Id., at 118. See also George F. Nellist, ed., Men of Shanghai andNorth China 5 (1933).

135. See for example the 1938–1939 Regulations, supra n. 123. When forced toshorten its program, Soochow reduced its comparative law, not its common law,courses; as a result, the school actually required more Anglo-American law than ithad earlier in the thirties.

136. For example, Roman Law (still championed by Lobingier), or ElementaryLaw—although that course was useful when fewer entering students had collegedegrees.

137. “During the 1930’s, pressures on time available within the traditionalthree-year program, caused by the developing importance of particular areas ofthe law; e.g., Administrative Tribunals, Taxation, Labor Law, were aggravated bythe torrent of decisional material and the proliferating welter of statutes and ad-ministrative regulations. The difficulties posed by a rigid adherence to the cus-tomary form of the case system became apparent.” Elizabeth Gaspar Brown (writ-ing about Michigan’s curriculum), supra n. 21, at 212.

138. Soochow did not teach courses on U.S. federal courts, antitrust law orother administrative law courses. The school did offer the equivalent courses inChinese law—an understandable (and doubtless correct) decision—but it didmean limiting the Anglo-American law teaching. Ironically, Soochow’s emphasison comparative law placed it somewhat out of step with contemporary Americanlaw schools. There was also something contradictory in trying to meet U.S. stan-dards when comparative law was not their dominant approach, despite calls formore comparative law and its revived study in the United States (for example, inPound, supra n. 25).

139. Reed, supra n. 27, at 252–253. According to Reed (writing in 1928), crim-inal law, real property, contracts, torts, evidence, pleading and equity had alreadybecome the most widely listed in law school catalogs a generation before that. Id.


140. The days when such areas were the “unchallenged centerpieces of thelegal system” have been gone for at least half a century, and many comparativespecialists now argue that administrative, regulatory and constitutional issues,which Soochow’s common law program scanted, constitute the most importantareas of study. See, for example, Reiman, supra n. 26, at 640.

141. “And despite advancing technology and a law school catalog full of new,specialized courses, [Arthur] Miller still believes ‘these basics remain the most im-portant teaching we do.’” Brock Bower, “The Law School and the Law,” HarvardMagazine (Jan.–Feb. 2000) at 43.

142. The English language and the common law seem closely connected, per-haps because some terms do not lend themselves to translation, and others such as“reasonableness” are too closely connected to ways of thinking (e.g., a preferencefor pluralism in legal thought) or too tied to culture (“fairness”). George P.Fletcher, “Comparative Law as a Subversive Discipline,” 46 Am. J. Comp. L. 683,697, 698–699 (1998).

143. John Henry Merryman, “Legal Education There and Here: A Compari-son,” 27 Stanford L. Rev. 859, 871–873 (1975). Of course, as Merryman notes,Americans also study legislative and administrative materials, as cases reflect onlypart of the legal system in operation. Id., at 873.

144. Interviews, Taipei, July 29, 1987; Shanghai, Sept. 19, 1992.145. Interviews, Shanghai, Oct. 12, 1992; Shanghai, Nov. 24, 1992.146. According to an interview quoted in Yves Dezalay and Bryant Garth,

Dealing in Virtue: International Commercial Arbitration and the Construction of aTransnational Legal Order 260 (1996). Though not identified as such, their sourcewas almost certainly referring to Soochow graduates. The many interviews andconversations I have had with Soochow graduates, since I first began meetingthem in the early eighties, confirm that impression.

147. “Class History—1926,” 1924 Woolsack, supra n. 34, at 67.148. Ministry of Education order dated October 19, 1937, requiring the CLS

to institute a four-year day program commencing with the first and second-year students then enrolled at the school. Shanghai Municipal Archives,Q245–30.

149. C.H. Becker, et al., The Reorganisation of Education in China 158 (1932),for example, citing the inadequate preparation of many Chinese students enteringuniversity as a serious problem with the educational system.

150. Interview, Hong Kong, April 7, 1993. Most commentators agree that thestandards of CLS students were lower overall in the forties than they had been inthe twenties and thirties; that was certainly the view of one thirties graduate whoreturned to teach at the CLS during the forties. Interview, Shanghai, November25, 1992. In the course of my interviewing, I found that the earlier graduates didgenerally have better English than graduates from the later classes.

151. See Sun, supra n. 60, at 80–82.


152. In the late thirties, the Chinese government began emphasizing more spe-cialized undergraduate study, with less room for graduate training—in large partfor economic reasons. Israel, supra n. 42, at 99.

153. Nance, supra n. 6, at 82. That was one reason so few students enrolled inSoochow’s LL.M. program.

154. The new government standards were not effectively enforced at first,however, and other schools also resisted the centralized program. Israel, supra n.42, at 95–99. Soochow was able, at least for a few years, to obtain special permis-sion to run a five-year program with courses held in the late afternoon or earlyevening, despite the government’s campaign against “night schools” and its pushfor a standardized four-year curriculum.

155. The faculty’s determination to maintain standards is reflected in Univer-sity reports and records, in minutes of faculty meeting, well as in their articles onlegal education. Faculty meetings certainly devoted a lot of time to considering in-dividual student petitions and re-examination requests. See Alison W. Conner,“Training China’s Early Modern Lawyers: Soochow University Law School” 8 J.Chin. L. 1 (1994) at 14–18.

156. Id., at 25. Both the Law School and the University administration wor-ried about the heavy reliance on part-time teaching. Soochow University, Presi-dent’s Report for the Year 1933–34, 10–11, United Mission Board Archives, No.271/4312. But even “full-time” teachers usually held other teaching positions orpracticed law on the side; salaries were simply too low for them to do otherwise.Nance, supra n. 6, at 76–77. The situation was actually much worse at otherschools and colleges, according to Sun, since teachers might be teaching twenty tothirty hours total per week, often at many different schools. Sun, supra n. 60, at63–67.

157. As a private school without a large endowment, the CLS had to charge tu-ition to cover most of its operating costs. See Lutz, supra n. 6, 167–168, on theneed for high tuition at the Christian colleges (most of the national universitieswere tuition-free). But since there were limits to what students could afford to pay,costs had to be kept as low as possible—and those costs of course included salariesfor full-time teachers. Most schools of the day found it cheaper to hire part-timefaculty. Financing the Law School was a constant source of concern: It was oftendiscussed in CLS faculty meetings and raised in the University president’s annualreport virtually every year. See, for example, 1933–34 President’s Report, supra n.157, at 11; Soochow University Report of the President 8–9 (1939), United MissionBoard Archives, No. 271/4312. Other Christian colleges also worried about money,especially during the thirties, as did nondenominational private colleges and uni-versities. Lutz, supra n. 6, at 304–305; Yeh, supra n. 42, at 195–202. Financially, theCLS did best when it taught its courses in the late afternoon and early evening, al-lowing students to work to put themselves through school, and the school to em-ploy Shanghai lawyers.


158. Which included Northwestern (where Sheng and Sun had studied), NYUand Harvard. Many early students attended Michigan, as the CLS continued tohave close ties with its law school. George Sellett, a long-time member of the fac-ulty, was a Michigan graduate, and W.W. Blume taught there for many years afterhe stepped down as dean and returned to the United States. 1924 Woolsack, supran. 34, at 19. Y.C. Yang, “George Sellett, An Appreciation,” 7 China L. Rev. 111(1935). Elizabeth Gaspar Brown, supra n. 21, at v.

159. See Merryman, supra n. 144, at 865–866 for a summary of differences incivil and common law legal education models.

160. Blume, “Legal Education,” supra n. 14, at 310–311. Student records showthat CLS administrators did check that all entrance requirements had been metbefore admitting applicants. Student files for 1918–1927 graduates, Shanghai Mu-nicipal Archives, Q245–273.

161. The University’s own pre-legal or preparatory course (yuke) consisted ofthree years of social science and other college courses. Students who completedthe full three years of study obtained a B.A. as well as an LL.B. after three years oflegal study. After finishing two years of the pre-legal course, students could alsotransfer to the first year of the Law School but received only the LL.B. degree.1930–1931 Announcement, supra n. 48, at 14.

162. Sun, supra n. 60, at 92–95. He was right. According to Stevens, the1922–1945 period in the United States was marked by an ever-rising commitmentto higher standards in legal education by the AALS [Association of American LawSchools] and the ABA [American Bar Association]. Stevens, supra n. 2, at172–174. By 1937, for example, the ABA had adopted the requirements of twoyears of college study and three years of full-time or four years of part-time studyat a law school that had a library of at least 7,500 volumes, a minimum of threefull-time professors and a student-faculty ratio of no more than one hundred toone. Id., at 179. But the CLS was still able to meet most of those requirements be-fore the Sino-Japanese War.

163. President’s Report to the Board of Trustees of Soochow University, 1936,United Mission Board Archives, No. 271/4312.

164. For a convincing argument that everything important had an interna-tional dimension during this period, see William C. Kirby, “The Internationaliza-tion of China: Foreign Relations at Home and Abroad in the Republican Era,” No.150 China Quarterly 433, 455 (1997).

165. The commission’s recommendations appeared in its report the followingyear; Becker, supra n. 150.

166. Israel, supra n. 42, at 95–99. Ruth E.S. Hayhoe, “China’s Higher Curricu-lar Reform in Historical Perspective,” No. 110 China Quarterly (1987) 196, 205.

167. Becker, supra n. 150, at 25–28, 163, 185.168. Kirby, supra n. 165, at 455. Overall, the commission found that Chinese

university education “suffer[ed] gravely from a lack of unity and system. . . .”


Becker, supra 150, at 175. It therefore recommended the implementation of a na-tional plan for education, centralized and controlled through regulations and su-pervised by the Ministry of Education, with more uniform standards and entranceexaminations. Id., at 175–176, 184.

169. Becker, supra n. 150, at 165–167.170. Hayhoe, “China’s Higher Curricular Reform,” supra n. 167, at 204; Kirby,

supra n. 165, at 455.171. Becker, supra n. 150, at 150–151.172. Id., at 178.173. Hayhoe, “China’s Higher Curricular Reform,” supra n. 167, at 204.174. An argument made by Ch’ien Tuansheng, among others—though he held

a poor opinion of the Chinese bar and bench of that day. Ch’ien Tuansheng, TheGovernment and Politics of China 254, 260–261 (1950).

175. Conner, “Training China’s Early Modern Lawyers,” supra n. 156, at 7;Hayhoe, “China’s Higher Curricular Reform,” supra n. 167, at 204.

176. Nance, supra n. 6, at 83.177. Pierre Legrand, “John Henry Merryman and Comparative Legal Studies:

A Dialogue,” 47 Am. J. Comp. L. 3, 11 (1999). See also Merryman, supra n. 144, at876–877.

178. Though the commission did envision a less important role for privateuniversities, which should also be “worked as closely as possible into the nationalsystem.” Becker, supra n. 150, at 179. That view also reflected a European bias,since private universities ordinarily play a minor role in higher education in civillaw countries. Merryman, supra n. 144, at 863.

179. Whereas the Becker Commission held that “it is not sufficient that indi-vidual institutions among them should be doing valuable work. It is necessary thatthe structure as a whole should be planned in the manner best calculated to meetthe real needs of the nation, and that the different elements composing it, insteadof pursuing each its own course as an isolated unit, should act together, as part ofa coherent scheme, with a common objective.” Becker, supra n. 150, at 146–147.

180. Israel, supra n. 42, at 98.181. Jean Escarra, The Extra-territoriality Problem 22 (1923).182. Id., at 23.183. His reasons for this line of argument were not entirely academic, his main

point being that the Western powers could not soon relinquish extraterritorialityeven if the Chinese codes were all enacted.

184. Arthur E. Sutherland, The Law at Harvard 297–298 (1967). RoscoePound, Some Problems of the Administration of Justice in China, preface (1948).

185. Roscoe Pound, “Law and Courts in China: Progress in the Administrationof Justice,” 34 A.B.A. J. 273, 275 (1948).

186. Roscoe Pound, Some Problems, supra n. 185, at 26–27.187. Id., at 28–29.


188. Roscoe Pound, “Comparative Law and History as Bases for Chinese Law,”61 Harv. L. Rev. 749, 758–759 (1948).

189. According to Pound, “[s]ome of the most difficult problems in Chineselaw at the moment arise from incorporation of borrowings from Anglo-Americanlaw in essentially Continental codes. . . .” Pound, “Law and Courts in China,” supran. 186, at 275.

190. Yu Kwei, supra n. 38, at 364. Comparative study of Chinese and foreignlaws, starting with the Chinese, was still necessary, but it must be comparative “in atruer sense of the word.” Reading different laws was not enough: “we must, first andforemost, learn the actual working of the different systems and theories and make acomparison of those with the practice now prevailing in China. . . .” Id., at 370.

191. See Wen-hsin Yeh, “Prologue: Shanghai Besieged, 1937–45,” in WartimeShanghai (Wen-hsin Yeh, ed., 1998) 1–17.

192. See Hayhoe, “China’s Higher Curricular Reform,”supra n. 167, at196–230. Lutz, supra n. 6, at 473ff. for closure of the Christian colleges.

193. Legal education, disrupted and abandoned during the Cultural Revolu-tion (1966–1976), was only revived in the 1970s. See Jerome A. Cohen, “Notes onLegal Education in China,” 4 Lawasia 205 (1973); Timothy A. Gelatt and FrederickE. Snyder, “Legal Education in China: Training for a New Era,” 2 China Law Re-porter 41; Fang Liufang, “Zhongguo Faxue Jiaoyu Guancha” [Survey of ChineseLegal Education], 10 Bijiaofa Yanjiu [Comparative Law Research] 116 (1996).

194. China’s accession to the WTO will result in changes to the rule governinglegal services provided by foreign lawyers, which are now restricted. The most sig-nificant changes would include an end to the rule limiting foreign law firms to oneoffice in China, and possibly permission for foreign firms to provide informationon Chinese law to their clients or even to employ Chinese lawyers. Joe Leahy, “Ad-visers get a taste of things to come,” Survey—China, Financial Times (London),Nov. 13, 2000.

195. “State may scrap bar exam,” Japan Times, Oct. 26, 2000. Koichiro Fu-jikura, “Reform of Legal Education in Japan: The Creation of Law Schools withouta Professional Sense of Mission,” 75 Tulane L. Rev. 941; Jae Won Kim, “The Idealand the Reality of the Korean Legal Profession,” 2 Asian-Pac. L. & Policy J. 45,64–68 (2001) www.hawaii.edu/aplpj. See also the Special Issue: Japanese Legal Re-form (2001) at www.hawaii.edu/aplpj

196. Private schools and colleges have reappeared in the PRC in the last fewyears. “Learning to go private,” South China Morning Post, May 11, 2000. DavidK.K. Chan and Kai-Ho Mok, “The Resurgence of Private Education in Post-MaoChina: Problems and Prospects,” in Education, Culture & Identity in Twentieth-Century China (Glen Peterson, Ruth Hayhoe and Yongling Lu, eds.) 297–313. ThePRC authorities have also approved programs taught jointly with foreign universi-ties. “China Approves 28 Educational Programs Taught Jointly with Foreign Uni-versities,” www.chinaonline.com, Jan. 10, 2000.


197. Graham Brown, “Teaching Common Law in China,” paper presented atthe International Law School Deans’ Conference on Legal Education for the 21stCentury, held May 1999 in Beijing.

198. Tsinghua’s law school was formally reestablished in August 1995. “Ts-inghua University Law School,” 1998 brochure, 3. From 1928 until 1935 TsinghuaUniversity included a law school; it was closed by the Nationalist government’sMinistry of Education but then revived for a few years (1946–1952) after the sec-ond world war. Id., 1–2.

199. Described in its catalogs and brochures, “Tsinghua University LawSchool.” My thanks to Wang Zhenmin and his colleagues for the materials. KevinPlatt, “Hope for Rule of Law in China Rises with School,” Christian Science Moni-tor (March 19, 1998). Tsinghua also emphasizes multi-disciplinary training, espe-cially in the sciences, an area for which the university has long been known. WangBaoshu and Wang Zhenmin, “Towards Advanced Legal Education and the Culti-vation of Multi-Background Legal Professionals,” paper presented at InternationalLaw School Deans’ Conference on Legal Education for the 21st Century, held May1999 in Beijing. Tsinghua’s curriculum for its Chinese J.D. calls for first-yearcourses in common law subjects, including torts and contracts, followed by a sec-ond year focusing on civil law courses, and a third year of study with a mixed cur-riculum. Tsinghua has close ties with the University of Hong Kong Faculty of Law,whose instructors have taught common law courses at Tsinghua, as well as withAmerican law schools.

200. International Herald Tribune, June 27, 2000. This program is not a com-bined or comparative law program, but like Soochow’s it does attempt to offer ahigh quality common law program to Chinese students in China, taught by Amer-ican and American-trained instructors. See www2.law.temple.edu. This programis now being transferred to Tsinghua University. Not all of the more recent pro-grams teach American common law; one program established at Nankai Univer-sity by the University of Newcastle and the University of South Wales also offers agraduate certificate in common law, taught in English with Australian casebooksand course materials. Brown, supra n. 198.

201. Dongwu Bijiaofa Jinxiu Xueyuan Zhaosheng Jianzhang [General Regula-tions on Enrollment of the Soochow Comparative Law Advanced Studies Insti-tute] (1989). Materials provided by the Institute.

202. Soochow was refounded in Taipei in the fifties, as noted above.203. Of course, the common law Hong Kong University taught was then the

law of Hong Kong—and its Chinese law courses are not yet being taught to pre-pare Hong Kong students for practice in mainland China.

204. Postgraduate Programmes in Common Law, Faculty of Law, the Univer-sity of Hong Kong, 1998–1999.

205. Such as the Centre for Comparative and Public Law and the Asian Insti-


tute of International Financial Law. University of Hong Kong Faculty of Law,Prospectus 2000–2001. See also www.hku.hk/law/law.html.

206. Reiman, supra n. 26, at 637ff.207. For a discussion of this issue and the potential for legal education to con-

tribute to legal integration in the European Union, see Lawrence M. Friedman andGunther Teubner, “Legal Education and Legal Integration: European Hopes andAmerican Experience,” in Mauro Cappelletti, Monica Seccombe and JosephWeiler, eds., Integration through Law, vol. 1, book 3, Forces and Potential for a Euro-pean Identity 345.

208. For a recent discussion of some of those programs, see James Gordley,“Comparative Law and Legal Education,” 75 Tulane L. Rev. 2000–2001, 1003.

209. Cornell University and Columbia University now offer their students afour-year joint program with the UniversitÈ Paris—Pantheon-Sorbonne (Paris I).After two years of study in the United States and two years of study in France, stu-dents obtain both a J.D. degree and a Maitrise en droit. This replaces the usualthree years of study in the United States and four years of study in France to ob-tain those qualifications. Fluency in French and English is required for the pro-gram. According to Columbia’s description, “The aim of the program, which of-fers a complete grounding in both civil and common law, is to train lawyers whoare exceptionally qualified to practice law at the international level.” Cornell alsooffers a four-year joint J.D./M.LL.P., following two years of study at Cornell andtwo years of study at Humboldt-Universitat in Berlin. Described atwww.lawschool.cornell.edu and www.law.columbia.edu.


7

Law in China’s Economic DevelopmentAn Essay from Afar

Natalie G. Lichtenstein

China’s phenomenal economic development has often been described, an-alyzed, applauded and occasionally criticized since 1979, when the currentreform era was ushered in. Analysts, admirers and critics alike have recog-nized the breadth and depth of the changes as the Chinese economy hasbeen transformed from a centrally planned economy to a market-orientedhybrid, even as the shape and scope of future changes continue to be de-bated. Less well recognized is the contemporaneous transformation ofChina’s legal system from the socialist system that suited the plannedeconomy to a more market-oriented legal hybrid with unique Chinesecharacteristics. In the legal field, too, debate continues—how well do lawsand regulations promote and protect the market economy, what is the im-pact of the legal regime in practice, how are China’s legal institutionschanging to meet the needs of the economy?

In reality, of course, legal reform and economic reform in China aremutually dependent, intertwined strands, not parallel, independent tracks.Law has played an important role in China’s recent economic develop-ment; economic policy has played an important role in legal system devel-opment. This interrelationship is not limited to China—one need look nofurther than China’s fellow socialist transition economies in Central andEastern Europe or the former republics of the Soviet Union. In contrast,the modalities of China’s reform process—experiments, pilots, temporaryor provisional legislation—are in many ways unique. By observing thecourse of past interactions of China’s law and its economy, one can lookfor lessons to inform current debates about the future course of China’slegal reform.

274

Offering the viewpoint of a foreign legal observer, this essay will high-light trends in the development of China’s economic laws in the 1980s and1990s. We will focus in on the legal rules in one important area wherechanges were needed for a market economy (enterprises and companies),zooming out along the way to identify implications for the law reformprocess more generally. This interactive approach will highlight how legalreforms adjusted to key aspects of economic reforms: gradualism, experi-mentation and regional differences. However, local observers and foreignand local practitioners are better placed to offer assessments of how theselegal rules have been applied in practice, and this essay does not pretend todip into those turbulent waters.1 Instead, we will touch upon implementa-tion, the central dilemma of law reform everywhere, by considering brieflythe growth of China’s legal institutions and the prognosis for “rule of law”in China.

Reforming Economic Law

Enterprise Reform: The Economic Context

Enterprise reform has been a key element of the overall transformation toa market-oriented economy in China. Before 1979, state industrial andcommercial enterprises were subject to vertical control of inputs and out-puts under the state plan. The state plan governed production as well assupply and price of labor and materials. Funds were largely providedthrough budgetary grants, and all profits were turned over to the state.The resulting scope for enterprise management was extremely narrow. In-dustrial sector collective enterprises were also subject to the guidance ofcentral planners, although many collective enterprises, especially smalland medium scale ones, had more leeway, fewer targets and greater con-trol over profits and investments.2 Private enterprises had just been givenlimited recognition after more than 20 years of prohibition.3

Contrast this limited scope for enterprise autonomy with the freedomand independence enjoyed by companies and entrepreneurs under a mar-ket system, and the scope for reform is readily apparent. Since the early1980s, China has been allowing enterprises to move away from the planand toward the market in stages. For a substantial segment of the econ-omy, state ownership and control over enterprises has been gradually re-placed with regulation, though the role and function of the regulators is

Law in China’s Economic Development 275

another area that continues to develop. Still, a significant number of largestate enterprises remain and state control over other enterprises is oftenexercised through partial ownership. Indeed, China’s ability to deepen and“complete” this enterprise reform process promises to have a significantimpact on the extent to which China will be able to fully implement mem-bership in the World Trade Organization.4

Enterprise Establishment: The First Stage

China’s legal framework for enterprises on the eve of economic reformwas fully consistent with this primary role of the state and the plan in theeconomy. There was no comprehensive legislation in place to regulate theestablishment and operation of state or collective enterprises, let aloneprivate enterprises or companies. Gradually, rules, regulations, laws andconstitutional amendments were introduced in a piecemeal and irregularpattern, reflecting the gradual and winding path that enterprise reformhas taken over the last two decades.

The first step in the legislative journey came in July 1982, with the is-suance of the Enterprise Registration Regulations.5 The Enterprise Regis-tration Regulations set out the legal process for an enterprise to acquirestatus as a legal person and attain the ability to exercise rights and under-take obligations under Chinese law, separate from a government depart-ment. Registration with the local Administration of Industry and Com-merce (AIC) was enshrined as the process and issuance of an AIC licenseas the act that would confer legal personality. The Enterprise RegistrationRegulations further regulated enterprises by mandating that enterprisesoperate within the scope as registered with the AIC and by prohibiting anenterprise from opening a bank account or starting construction or oper-ations without the AIC-issued license.

It is worth noting, of course, that “legal person” did not have a legal de-finition under Chinese law at the time that the Enterprise RegistrationRegulations came out. That definition came only when the General Princi-ples of Civil Law came onto the scene in 1986.6 It is also interesting tospeculate what role the body of legislation relating to Sino-foreign equityjoint ventures that had come into force by 1982 may have had in the de-velopment of the enterprise legal person regulations. Whatever their moti-vation, the Enterprise Registration Regulations are largely silent on thescope of enterprise autonomy, beyond the stricture on general scope ofoperation. Enterprise charters, which might be expected to set out enter-

276 n a t a l i e g. l i c h t e n s t e i n

prise rights and duties, were a new phenomenon in China at that point.Without much definition of their content or experience in their role fordomestic enterprises, Chinese enterprises could not look much furtherthan the then-limited experience derived from the newly permitted Sino-foreign joint ventures. In practice, it is not surprising that actual enter-prise charters of the early 1980s often did not offer much more legal preci-sion about enterprise legal autonomy than the Enterprise RegistrationRegulations themselves.

Enterprise Empowerment: A Cautious Beginning

Enterprise autonomy got a big boost late in 1982, however, when China’snewest constitution was adopted. The 1982 Constitution provided for thefirst time in a Chinese constitution, that “state enterprises have decision-making power in operation and management within the limits prescribedby law, on condition that they submit to unified leadership by the stateand fulfill all their obligations under the state plan.”7 Collective economicorganizations were also recognized as having “decision-making power inconducting independent economic activities, on condition that they ac-cept the guidance of the state plan and abide by the relevant laws.”8 Privateownership was still not constitutionally recognized.

By mid-1983, the legal regime for enterprises was enhanced to a degreewith the enactment by the State Council of the Provisional Rules for StateIndustrial Enterprises (the State Enterprise Rules).9 While the State Enter-prise Rules did not cover all of the ground that would be found in a com-pany law or state enterprise law, they did expand the limits of state enter-prise autonomy and re-confirm the legal person status of properly regis-tered state enterprises. Unlike the Enterprise Registration Regulationsdiscussed above,10 and the Company Registration Rules discussed below,11

they were explicitly retroactive to cover existing enterprises,12 a commonconcern when the economic forms and legal rules are evolving. The StateEnterprise Rules were applicable to a defined subset of state enterprises inspecific industrial sectors,13 reflecting the then-current limits on enter-prise autonomy. Reflecting the differentiation of ownership under theConstitution, the State Enterprise Rules did not apply to collective enter-prises.

The State Enterprise Rules are interesting for this discussion in twoways. First, in almost every area where they permitted an expansion ofenterprise rights for supplemental production outside the plan (such as


selection and purchase of goods, sales, pricing and export of products),the rights granted were “within the scope of state regulations.”14 This limi-tation by “guojia guiding” (state regulations) is frequently found in Chi-nese legislation—interestingly, its Vietnamese counterpart was also com-mon in pre-reform Vietnam. Some argue that this phrase is a mechanismto provide sufficient flexibility over time and across provinces and sectorsof the vast Chinese economy. Others see this as a clear signal of the state’sunwillingness to allow enterprises to enjoy unfettered economic rights. Ineither case, the constant use of the phrase at this time shows a tolerancefor vagueness and fluidity in the granting of legal rights. On the one hand,that vagueness and fluidity may suit the evolutionary nature of Chineseeconomic reform; on the other hand, this contrasts with the legal preci-sion that frequently characterizes company law in more developed marketeconomies.15

Second, the State Enterprise Rules attempted to prescribe in legal termsthe key and complex relationship between a state enterprise and the gov-ernment department that is its “supervisory unit.” Not only did the StateEnterprise Rules specifically define when supervisory unit approval wouldbe required (for the long-term program, annual plan, major technicaltransformation, import of advanced foreign technology or appointmentof higher-level management),16 they also obliged the supervisory unit withcertain responsibilities. The State Enterprise Rules drew the outer limits ofenterprise autonomy by providing that an enterprise’s decisions could notconflict with those of the supervisory unit and that the supervisory unitwould bear economic and legal responsibility for its errors which causedthe enterprise to suffer losses.17 These provisions are worth noting becausethey show the use of a legal mechanism to provide the boundaries for ahighly sensitive economic, and to some extent, political debate over thedegree of economic freedom allowed to enterprises.

Yet, the State Enterprise Rules also demonstrate the willingness andability of Chinese legislators to react to a set of needs without legislatingcomprehensively. This characteristic of China’s legal reform is vividly ap-parent in the next step in the history of the China’s enterprise legal frame-work. The General Principles of Civil Law (the General Principles) wereadopted by the National People’s Congress in April 1986.18 With fewerthan 200 articles, the General Principles established a basic level set ofrules for several building blocks of China’s legal framework, such as legalpersonality, civil liability, partnerships and basic property notions. Theirrelevance for the enterprise legal framework was limited to the general


rights and duties of enterprise legal persons in civil matters and a reaffir-mation of the lawful right of state enterprises over assets that the state hasauthorized them to manage and operate.19

What is striking is not that the General Principles set out only the pri-mary rules in these and other areas—they are, after all, “general princi-ples.”20 What is striking is that in the fourteen years since the adoption ofthe General Principles, the civil code itself has neither emerged nor evenappeared on the legislative agenda. Laws in some areas have moved for-ward without reference to how an eventual civil code would integratethem, such as the Company Law (1993)21 and the Unified Contract Law(1999).22 However, comprehensive legislation in other areas that would becentral to the civil code in other countries, such as property rights, haslanguished. In some cases, this may be another illustration of legal changeswaiting for economic reform to make them necessary. That is not the casefor property law, where there has been for some time an urgent need forthe legal foundations to guide property rights over land, structures, enter-prise assets and debts that a full-blown civil code would offer. There, de-lays are more likely due to the lack of economic and political consensus onhow far property rights should go. Most recently, the legislative agenda ofthe National People’s Congress has come to include the preparation of alaw on property.

Enterprise Empowerment: Deepening the Scope of Autonomy

Overall economic reform crossed a legal watershed in 1988, with constitu-tional amendments recognizing “the private economy” as a supplement tothe “socialist public ownership economy.”23 That year, state enterprise leg-islation also moved up a degree with the enactment of the State IndustrialEnterprise Law.24 The State Enterprise Law was significant in several ways.First, a number of separate pieces of legislation, some referred to above,were combined, and the preceding provisional rules issued by the StateCouncil were superseded by a non-provisional law adopted by the Na-tional People’s Congress. In terms of legislative status, then, the State In-dustrial Enterprise Law represented a regularization of prior instruments.Second, the entry into force of the State Industrial Enterprise Law enabledthe entry into force of the Law on Enterprise Bankruptcy (for Trial Imple-mentation) (the Enterprise Bankruptcy Law).25 In a highly unusual devel-opment, the Enterprise Bankruptcy Law was enacted late in 1986 with theproviso that it would not enter into force until three months after a state


enterprise law was enacted and entered into force.26 While there is a strongsubstantive argument that a basic enterprise law needs to be in place foran enterprise bankruptcy law to take meaningful effect, this is more nor-mally achieved by first enacting the enterprise law and then enacting thebankruptcy law.

Under the State Industrial Enterprise Law, the enterprise’s rights aresimilar to those under the State Enterprise Rules and General Principles(including the rights to market goods, choose suppliers, set prices and uti-lize capital), although these are generally more clearly and sometimesmore broadly stated. Several new enterprise rights are explicitly included,such as the right to plan production of goods, the right to use foreign ex-change, the right to invest in other enterprises and the right to issuebonds.27 Importantly, supervisory units of enterprises are prohibited fromviolating enterprise legal autonomy.28 Nonetheless, some (but not all) ofthe enterprise’s rights remain subject to “regulations by the State Council,”harking back to the earlier State Enterprise Rules. Qualifying rights withreference to separate regulations means, as a legal matter, that the enter-prise lacks the certainty as well as the clarity that is necessary for any eco-nomic player to play its role fully.

Much of this legal vagueness with respect to enterprise rights was alle-viated with the 1992 Regulations on Transforming the ManagementMechanisms of State-Owned Industrial Enterprises.29 The main thrust ofthe 1992 Regulations was to strengthen and broaden the operating auton-omy of state enterprises by specifying fourteen management rights whichwould henceforth be exercised by the enterprises themselves, rather thangovernment departments. These rights are described in greater detail thanunder the State Industrial Enterprise Law, and limited exceptions are fre-quently noted. As a result, these 1992 Regulations can be viewed as givingneeded legal content to the ubiquitous references to regulations of theState Council.

In 1993, state enterprise legislation moved up yet one more notch onthe legislative scale, with the 1993 amendments to the Constitution.30

These amendments took a further step in better reflecting the economicstructure of the country and the recognition of the socialist market econ-omy. All references to “state-run enterprises” were changed throughout theConstitution to “state-owned enterprises,” and wording more consistentwith the new operating mechanism was inserted to describe their relation-ship to the state. More generally, these amendments made minor adjust-ments in wording to add reform and the socialist market economy to the


economic principles referred to in the Constitution, and correct referencesto such bygone economic forms as rural people’s communes.

These constitutional changes can be seen to reflect a growing consensusat the highest level for the transformation to a socialist market economy.Continued refinement of the constitutional provisions related to state en-terprises demonstrates the legal weight and political importance placed onthe Constitution as an instrument in legal reform. In one sense, the case ofenterprise reform shows an interesting role for constitutional law inChina. While lesser legislation can cover areas not legislated by the Consti-tution, constitutional amendments were needed to legitimize enterpriseautonomy before much progress could be made in lesser legislation. Then,as this constitutionally sanctioned enterprise reform took hold, the legisla-tion broadened enterprise autonomy to the point where further constitu-tional amendments were necessary to cap off the progression. This pointis further reinforced by the 1999 amendments to the Constitution thatgave the individual and privately run economy equal legitimacy with thestate-owned sector.31 At the same time, the “leading role” of the Constitu-tion was apparent with the addition of rule of law: “The People’s Republicof China shall be governed according to the law and shall be built into asocialist country based on the rule of law.”32

The Company Phenomenon: A Parallel Pilot

Before leaving this journey through China’s enterprise legal reform, letus look at some of the innovative ways in which company law reformproceeded in parallel. By 1985, some state and collective enterprises (andeven some government bureaus) had begun to call themselves “compa-nies,” taking the lead from legally different entities, the Sino-foreign jointventures. In the absence of company law or regulations, it was not clearhow the status of a company differed from a “mere” state enterprise norwas the legal basis for the decision to set up as an enterprise or a com-pany apparent. “Company” had the aura of reform, and suggested theability to pay bonuses to employees—something government bureauswere not authorized to do. Thus, in August 1985, the Provisional Regula-tions on Registration and Control of Companies (the Company Regis-tration Regulations) were issued, giving greater guidance to the “com-pany” phenomenon.33 Interestingly, the Company Registration Regula-tions, though promulgated under the authority of the EnterpriseRegistration Regulations, make no reference to the term “enterprise,”


only to “economic entities”—leaving open the question of whether com-panies are enterprises.

Certain aspects of the Company Registration Regulations serve to illus-trate some of the peculiarities of China’s economic legislation. First, theCompany Registration Regulations were issued on a “provisional” basis,like the State Enterprise Rules.34 Second, at the time the Company Regis-tration Regulations were issued, the title “company” itself had no legallydefined meaning. This particular anomaly had even earlier roots: the 1979Law on Chinese-Foreign Equity Joint Ventures provided that Sino- foreignjoint ventures would be limited liability companies,35 a form of organiza-tion that was not given legal definition until the Company Law was en-acted and took effect in 1994.36

Both of these aspects are connected to the way in which reforms havedeveloped in China. Because China’s economic reforms have often beeninstituted nationwide only after experiments and pilots in severalprovinces, cities or localities have shown success, an economic phenome-non such as “companies” can spring up without any formal legal basis. Atsome point, the economic authorities are ready to sanction a particularexperiment, without necessarily fitting it into a comprehensive reformframework. A regulation or rule is then promulgated, dealing with thecurrent modalities, and is often termed “provisional” or “temporary” or“for trial implementation.” While these rules and regulations have fulllegal force, this designation indicates that the content will be revisited inthe future in a more comprehensive way. This puts those who would relyon their content on notice that changes can be expected. Even so, this useof temporary legislation is relatively rare among jurisdictions.37

As a result, pieces of the legislative puzzle arrive in a fragmented waythat may not connect completely with other puzzle pieces. An importantneed is perceived—protecting against indiscriminate establishment ofcompanies and use of company names—and a piece of legislation ad-dresses that problem and some of its associated repercussions. But its rela-tionship to other pieces of legislation is not fully worked out until later,leaving lacunae in the legal framework. Again, some observers point tothis trend as fully compatible with an economic reform process thatreaches different stages in different places at different times. Others pointup the difficulty of actually implementing the law when connections tothe rest of the legal framework are absent or tenuous, and, when, as inChina, the rule of law itself is at an early stage.


The prevalence of entities calling themselves “companies” led to thesomewhat anomalous Company Registration Regulations in 1985. Theseprovisional regulations disappeared in 1988 when the Enterprise Legal Per-son Registration Regulations repealed previous rules and combined the reg-istration requirements for all enterprise legal persons38 (one of the few cate-gories of legal persons under the General Principles of the Civil Code).39

Other anomalies in company legislation continued, especially in the so-called shareholding experiment, until the enactment of the Company Law.

The Shareholding Experiment:Legislation with Chinese Characteristics

The lack of a full-fledged company law framework prior to 1994, when theCompany Law entered into force, did not stop shareholding companiesfrom springing up all over China, beginning in the late 1980s. The twoareas where the so-called shareholding experiment was officially sanc-tioned were in Shanghai and Shenzhen. Both municipalities also estab-lished securities exchanges for the trading of shares in these companies in1990, although shares had been traded in China’s few fledging financialmarkets before the exchanges were established. Yet it was not until the en-actment of the Shenzhen provisional company regulations in March199240 and the Shanghai provisional company regulations came into effectin June 199241 that there was a legally discernible and enforceable defini-tion of the rights carried by the shares being traded.

This simple example once more brings home several features of Chi-nese economic law reform. Regional differences are an important factor inChina’s economy, as in its polity and society. That different localitiesshould proceed with different legal arrangements—in the absence of ap-plicable binding national legislation—is a reflection of that truth. This tra-dition of regional differences has been heightened in the economic reformprocess, as reforms have proceeded on the basis of multiple experimentsin different locations. That reforms in the politically sensitive area of com-pany law should proceed on the basis of experiments is another instanceof commonality between legal and economic reform. Any reform in thisarea would have to overcome the longstanding political opposition to pri-vate ownership in a socialist society.

Yet another feature of Chinese economic law reform highlighted by theexample of company law development is the changing role of legal rules.


In the pre-market era, law was less important in day-to-day economic de-cision-making because so many decisions were made by the state underthe plan. Broadly speaking, what to produce, what materials to use in pro-duction, what labor would be available and what prices would be chargedwere all decisions that the supervisory unit made under the plan, not theenterprise. Without real responsibility for profit and loss, neither did theenterprise stand to gain or lose directly from the outcome in an economicsense, although its leaders would certainly feel the repercussions in a bu-reaucratic sense. Only with the advent and gradual deepening of the eco-nomic responsibility system that made economic decisions matter to eco-nomic actors (enterprises and, later, individuals) did the legal rules to pro-tect and promote those decisions come to matter as well.

The progressive particularization of company law shows a similarbuildup of the need for detailed legal rules. At first, the key fact that in-vestors needed to know was that investing in company shares was sanc-tioned by the state. Only over time, as losses and gains from trading inshares could be truly felt by investors, did they have reason to care whattheir legal rights were. It was then also that state regulators had strong rea-son to protect the public interest in a fairly functioning market. For thedetails of company law to have meaning, individuals had to believe thatthe political economy had evolved to that point that, while investing waspermitted, they would not be completely protected by the state from lossand the state would not deprive them of their profits. This is among themost plausible explanations of why shares could trade actively withoutany legal definition of companies. It also explains why company legislationbegan to appear around China to deal with the practical problems in thewake of the earlier, spontaneous appearance of the joint stock companies.

It is in this context that the Shenzhen and Shanghai regulations ap-peared in early 1992. It was already recognized at that time that a nation-wide legal framework for companies was necessary. There was a need tospread nationwide some of the benefits of the corporate form for enter-prise reform (limitation of shareholder liability and enforced separation ofthe government as owner of shares from the management of the enter-prise). Moreover, a single set of rules for corporate organization would fa-cilitate inter-provincial operations of companies and sales of shares. Abuyer in Liaoning could know whether the president or chairman of theboard of the selling company in Shanghai had to sign a contract before thebuyer could rely on it—without having to consult various provincial andlocal laws on the subject.


This need for some national regulation of companies came at a timewhen political debate about private share ownership was one of the factorspreventing adoption of a national company law. One result was a mostunusual piece of “legislation” in China’s economic law reform process. InMay 1992, five agencies under the State Council (but not the State Councilitself) issued the “Measures on Enterprises’ Shareholding System Experi-ment.”42 The agencies ran the gamut of relevant aspects of the sharehold-ing experiment: the then State Commission for Restructuring the Eco-nomic System (SRC), State Planning Commission (SPC), Ministry of Fi-nance (MOF), the People’s Bank of China (PBC) and the State CouncilProduction Commission (later known as the State Economic and TradeCommission). While the Measures did not themselves set out the provi-sions of a company law, they sanctioned the establishment of shareholdingcompanies throughout China, and they required that these companies beestablished as either limited share companies or limited liability compa-nies.

Most importantly, the Measures mandated that all shareholding com-panies follow strictly the provisions of two relevant documents issued bySRC on the same day: the Views on Standards for Limited Share Compa-nies and the Views on Standards for Limited Liability Companies (theStandards).43 The Standards were in the form of guidance from SRC, butthey were structured as if they were laws (which they were not). The Mea-sures themselves were unusual, but probably binding; by requiring compa-nies to follow the Standards, this gave the Standards legal force.

This issuance of an instrument by several agencies, coupled with guid-ing directives from one agency, was not a substitute under the Chinese lawfor the enactment of regulations (by the State Council) or laws (by the Na-tional People’s Congress or its Standing Committee). Indeed, the Measuresand Standards were replaced when the Company Law was finally enacted,taking effect some two years after the Measures came into force. The Mea-sures are best seen as a stop-gap measure to provide some legal basis inadvance of formal enactment of legislation—a uniquely Chinese innova-tion to bridge the divide between legal reality and political economy. In-deed, this compromise is reflected in the provisions of the Standards,where one finds numerous references to relevant government departmentsand to the need for approvals by and notices to them. The resulting lack ofcertainty about the approval process and the potential for government in-tervention show the limited extent to which the five agencies were, ontheir own, prepared to let go.


Interestingly, the Standards were subsequently supplemented with reg-ulations from various agencies on relevant aspects of shareholding com-panies, enacted under normal administrative procedures.44 Even more in-teresting, one year later, the State Council issued a notice to the effect thatthe Standards were accorded the status of ministry level measures, andSRC issued an Addendum to the Standards for Limited Share Companiesto facilitate the listing of PRC companies in Hong Kong.45 In yet anotherunusual act of facilitation, the SRC confirmed in a letter to the Hong KongStock Exchange Limited that the Addendum carries the same legal force asthe Standards, so that, as one observer put it:

only those contrary provisions which are contained in laws, regulations or

rules made by authorities of a higher legislative level (namely, the National

People’s Congress or the State Council) will override the provisions of the

Standard Opinion and the Addendum.46

While waiting for consensus to bring a nationwide company law intobeing, considerable legislative creativity was invested in enabling Chineseentrepreneurs to organize companies and float their shares.

Once the Company Law was finally enacted at the very end of 1993,companies organized under the authority of this web of experimental leg-islation had the potential to continue to exist. The Company Law providedthat companies previously incorporated under laws, administrative regu-lations, local legislation and the Standards would be retained, and autho-rized the State Council to set a time limit for those not fully satisfying theLaw’s conditions to be brought in compliance.47 Thus, in closing thischapter of the tale, it is worth remarking that in the first half of 1994, afterthe Company Law had been enacted but before its July 1 effective date,some new companies were rushing to register themselves as joint stockcompanies. Why? Because they could then be grandfathered in that olderform, without being fully subject to the still untested and possibly less fa-vorable provisions of the new Company Law. So, this vignette tells us,some individual entrepreneurs had come to believe that company lawmattered.

Creating Legal Institutions

We have seen the uneven progress of China’s enterprises from plan tomarket reflected in substantive law of enterprise reform. Many of the hall-


marks of this legal reform have parallels in economic reform. Provisionallegislation, for instance, echoes economic experimentation. Other echoesbetween Chinese economic and legal reform include regional variation,piecemeal and sometimes unconnected approaches and early vaguenesssupplemented by later detail. Novel economic hybrids (socialism withChinese characteristics) lead to innovative legal instruments (such as theshareholding experiment). For the legal system, these traits show thestruggle to develop specific economically appropriate legal rules in the ab-sence of an overall legal framework. Here, China probably faced a greaterchallenge than in some other transition economies where there was amore suitable pre-existing legal foundation, as in some countries in East-ern Europe.

Beyond the creation of substantive law lies the creation of legal institu-tions to make law work in practice. It is not surprising that positive lawcommanded early attention in China’s legal reform, for after all, withoutappropriate rules, implementation is not an issue. Now that China’s legalframework has been “under construction” for some time, however, the de-velopment of legal institutions poses a challenge at least as great, andsurely as important, to the eventual success of China’s economic reforms.Certainly, the importance of legal institutions to legal and economic re-form is a lesson learned from reforms around the globe.

For China, economic transition means moving to a world where gov-ernment agencies are no longer primarily responsible for managing eco-nomic entities or planning their economic transactions, where individualschoose their livelihood and dispose of the benefits earned, where differenttypes of ownership and ownership rights multiply. Economic actors mustbelieve that they will be held to their legal obligations, and that their legalrights can be given meaning through legal protection. Government regula-tors must have the ability to use administrative sanctions to regulate thebehavior when they can no longer command enterprises or individuals tomake economic decisions. They must have to resort to courts when thoseeconomic decisions fall afoul of new legal rules, whether in protecting theenvironment or the sanctity of the market. For legal instruments to re-place government directives as the means to enforce rules and resolve dis-putes, the legal system must provide rules and procedures that are per-ceived as reliable, predictable, transparent and fair.

This transformation of legal institutions is, in essence, what is oftenmeant when “rule of law” is said to underpin a market economy. To besure, rule of law has many definitions, in current-day China as elsewhere.


But at its core lies the principle that law must matter more than whichparty is in power, and more than the individual men and women whowield it. Law must make a difference to people’s lives, to their actions, totheir economic survival and success.

How does the rule of law translate into legal institutions? First, theprocess for making and changing laws and rules must be able to addresspeople’s needs, and to provide stability and predictability. The legal rulesmust be not just known but understood well enough by those who are af-fected by them. People must have access to legal advice when they need it,as much in creating transactions as in protection when things go awry.They must believe that their disputes can be fairly resolved, whetherthrough courts or other means of dispute resolution (such as mediation).And, people must believe that the legal rules limit not only individual andcorporate actions but most importantly the government’s actions.

In each of these areas, China’s legal institutions are undergoing re-forms, but they are far from complete. The legislative process is far moreopen and deliberative than when the reforms began two decades ago,making more room for public participation, with greater legal precisionand connectivity.48 Popular awareness of the law is emphasized, andneeds to be stressed in a legal culture where access to regulations and cir-culars has often been restricted. At the same time, citizen participation inthe legislative process has some way to go, so that there can eventually bea mechanism to make the law reflect the needs of the people, and thenbecome a tool at once to facilitate and guide their actions—a new twiston the Maoist slogan, “From the masses, to the masses.” The develop-ment of China’s legal profession has been a phenomenon in its ownright, from the early days of lawyers as state functionaries in governmentlaw offices to the proliferation of private, profit- oriented law firms inmajor cities across the country.49 These rapid changes in a changingeconomy have their pitfalls for the education and training of large num-bers of lawyers in new laws and in different ways of providing legal ser-vices. As access to legal advice becomes an important element of eco-nomic life, access to legal services for the poor has become an issue.50

Ethical challenges abound; witness allegations of corrupt behavior bylawyers, judges and officials alike. As one observer notes, this is at least inpart due to the incomplete transformation from plan to market econ-omy: “Corruption thrives today in China because distinctions betweenstate and nonstate concerns, property, and interests are vague and unde-fined.”51


China’s judiciary has also experienced rapid growth and faces the chal-lenges of education and training. Judicial ethics are under scrutiny, whilethe new economy means that judges’ personal economic status as govern-ment officials leaves them less well-off, less well regarded and more vul-nerable to economic and political pressures than before. Many have voicedconcern over judges, whose professional life and salaries are administeredat the local level, trying to make, and later enforce, unpressured decisionsthat go against local government interests. Beyond these indirect influ-ences, the whole question of the direct relationship of government to judi-ciary remains an area of intense attention.

Conclusions

What can we take away from this multifaceted story of China’s economiclaw reforms and the growth of China’s legal institutions? Stepping up totake a high-level view, one can see three key themes. First, looking backover two decades highlights how much progress has been made in estab-lishing a legal system that can support a market economy. The gaps andchallenges in just one area (enterprise reform) demonstrate that there ismuch progress to be made in the future development of the legal frame-work—even more so in the development of legal institutions. It is impor-tant to recognize, however, that legal development is not a straight-linetrajectory, and that “these very developments may arguably be impeding,as well as advancing, liberal legality.”52 Second, the unusual modalitiesused to reform the legal framework for enterprises show how creativelyChina has adapted legal substance and process to the needs of economicreform. Third, not only have China’s economic reforms made rule of law anecessity; in a symbiotic relationship, economic reform is essential tomake rule of law a reality.

As a postscript, it would be fitting in this Festschrift for Professor Cohento recognize the impact that he has had in fostering the types of Chineseeconomic law reforms reviewed in this essay. Professor Cohen’s manycontributions can be summarized in three distinct areas. First, throughhis teaching, he has trained many Chinese lawyers, legal officials andscholars, and many of the U.S. scholars of Chinese law who have, in turn,gone on to teach and train more Chinese students. In the best educationaltraditions, he has helped in this way to build China’s capacity to build


and operate China’s new legal system. Second, through his practice, hehas helped develop Chinese legal practice. Here, we should note not onlythe direct impact of foreign legal advice in the area of foreign investmentlaw, but also the indirect impact that foreign-related legislation has had inthe nascent domestic field through the age-old Chinese tradition of anal-ogy. Finally, through his contacts with senior Chinese officials over thislong period, he has helped to deepen understanding of legal and eco-nomic reforms, and to create a demand for the establishment of the ruleof law.

n o t e s

The author wishes to thank William Alford, Alison Conner, James Feinerman andJamie Horsley for their helpful suggestions in the preparation of this essay.

1. For a comprehensive and thoughtful analysis and assessment of China’slegal reforms in practice, see Stanley B. Lubman, Bird in a Cage: Legal Reform inChina after Mao (1999).

2. For an overview of this area of enterprise reform and legal reform circa1986, see, e.g., Natalie Lichtenstein, Legal Implications of China’s Economic Re-forms, 1 ICSID Review–Foreign Investment L. J. 289 (1986).

3. Alison W. Conner, To Get Rich Is Precarious: Regulation of Private Enterprisein the People’s Republic of China, J. of Chinese Law 5 (1991).

4. See James V. Feinerman, Free Trade, to a Point, N.Y. Times, Nov. 27, 1999 atA15.

5. Gongshang Qiye Dengji Guanli Tiaoli [Regulations on Registration and Ad-ministration of Industrial and Commercial Enterprises] (adopted by the StateCouncil, July 7, 1982), 1982 Zhonghua Renmin Gongheguo Guowuyuan Gongbao[GWYGB] [Bulletin of the State Council of the People’s Republic of China] 575,reprinted and translated in Foreign Broadcast Information Service Daily Re-port–China (FBIS), Aug. 17, 1982, at K-1 [hereafter Enterprise Registration Regu-lations]. The Enterprise Registration Regulations applied to state-owned indus-trial and commercial enterprises; cooperative and other collectively owned indus-trial and commercial enterprises; integrated or cooperative industrial andcommercial enterprises; and industrial and commercial enterprises under variouspublic utility departments—in the sectors of industry, communication and trans-port, construction, commerce, foreign trade, catering and service, tourist, handi-craft and repair trades. Id. at art. 2.

6. See discussion at p. 000 infra.7. Xianfa [Constitution] (adopted by the National People’s Congress, Dec. 4,

1982), art. 16, reprinted and translated in 1 Zhonghua Renmin Gongheguo She-


wai Fagui Huibian (1949–1990) [SWFGHB] [Laws and Regulations of the People’sRepublic of China Governing Foreign-related Matters (1949–1990)] 3, 279.

8. Id. at art. 17.9. Guoying Gongye Qiye Zanxing Tiaoli [Provisional Rules for State Industrial

Enterprises] (promulgated by the State Council, Apr. 1, 1983), 1983 GWYGB 268[hereafter State Enterprise Rules].

10. See supra p. 000.11. See infra p. 000.12. State Enterprise Rules, supra note 9, at art. 82.13. Id. at art. 81. The sectors included mining, transportation and shipping,

posts and telecommunications, electric power, geology, forestry and construction.14. Id. at arts. 23, 25–28. In the case of the State Enterprise Rules, the State

Council did grant more specific autonomy in certain areas about one year later,through “Provisional Regulations on Greater Decision-Making Powers for StateIndustrial Enterprises.” Guanyu Jinyibu Kuoda Guoying Gongye Qiye Zizhuquande Zanxing Guiding [Provisional Regulations on Greater Decision-making Powersfor State Industrial Enterprises] (State Council, May 10, 1984), 1984 GWYGB 323.For a detailed synopsis, see State Council Regulations Grant More Autonomy toState-Run Enterprises, reprinted in Summary of World Broadcasts, Part 3, The FarEast, Second Series [hereafter cited as SWB], May 15, 1964, at FE/7643/BII/1; seealso Businesses Enjoy Expanded Powers, Beijing Rev., June 18, 1984 at 10.

15. Lubman, supra note 1, at 147.16. State Enterprise Rules, supra note 9, at arts. 62, 66.17. Id. at arts. 63, 65.18. Zhonghua Renmin Gongheguo Minfa Tongze [General Principles of the

Civil Law of the People’s Republic of China] (adopted by the National People’sCongress, Apr. 12, 1986, effective Jan. 1, 1987), 1986 GWYGB 371, reprinted andtranslated in 1 SWFGHB 45, 331 (1990).

19. Id. at arts. 41–49, 82.20. For a discussion of the General Principles in context, see William C. Jones,

Some Questions Regarding the Significance of the General Provisions of Civil Law ofthe People’s Republic of China, 28 Harv. J. Int’l L. 309 (1987).

21. Zhonghua Renmin Gongheguo Gongsifa [Law of the People’s Republic ofChina on Companies] (adopted by the Standing Committee of the National Peo-ple’s Congress, Dec. 29, 1993, effective July 1, 1994), translated in [1994] 1 ChinaLaw & Practice [CLP] 5 [hereafter Company Law].

22. Zhonghua Renmin Gongheguo Hetongfa [Law of the People’s Republic ofChina on Contract] (promulgated March 15, 1999, effective October 1, 1999),translated in [1999] 4 CLP 19.

23. Xianfa, supra note 7, art. 11 (as amended by the National People’s Con-gress, April 12, 1988).

24. Zhonghua Renmin Gongheguo Quanmin Soyouzhi Gongye Qiyefa [Law


of the People’s Republic of China on Industrial Enterprises Owned by the WholePeople] (adopted by the National People’s Congress, Apr. 13, 1988, effective Aug.1, 1988), translated in 3 The Laws of the People’s Republic of China (1987–1989)141 [hereafter State Industrial Enterprise Law]. [1988] 5 CLP 35.

25. Zhonghua Renmin Gongheguo Qiye Pochanfa (Shixing) [Law of the Peo-ple’s Republic of China on Enterprise Bankruptcy (for trial implementation)](adopted by the Standing Committee of the National People’s Congress, Dec. 2,1986, effective Nov. 1, 1988), translated in 2 The Laws of the People’s Republic ofChina (1983–1986) 289 [hereafter Enterprise Bankruptcy Law]. For an illuminat-ing discussion of the legislative history of this unusual legislation, see Murray ScotTanner, How a Bill Becomes a Law in China: Stages and Processes in Lawmaking, inChina’s Legal Reforms at 39–64 (Stanley B. Lubman, ed.) and Ta-kuang Chang,The Making of the Chinese Bankruptcy Law: A Study in the Chinese LegislativeProcess, 28 Harv. J. Int’l L. 333 (1987).

26. Enterprise Bankruptcy Law at art. 43. Article 43 provided that the lawwould be implemented on a trial basis three full months after the Law on Indus-trial Enterprises with Ownership by the Whole People came into effect, and re-quired that the specific plans and steps for trial implementation would be stipu-lated by the State Council.

27. State Industrial Enterprise Law, supra note 245, at arts. 22–30.28. Id. at arts. 58, 61–63.29. Quanmin Suoyouzhi Gongye Qiye Zhuanhuan Jingying Jizhi Tiaoli [Regu-

lations on Transforming the Management Mechanisms of State-Owned IndustrialEnterprises] (promulgated July 23, 1992), translated in SWB, July 29, 1992, atFE/1445/C1/1.

30. Zhonghua Renmin Gongheguo Xianfa Xiuzhengan [Amendments to theConstitution of the People’s Republic of China], Mar. 29, 1993, reprinted andtranslated in Constitutions of the Countries of the World (Gisbert H. Flanz, ed.),1995 Supp., at 1, 5.

31. Zhonghua Renmin Gongheguo Xianfa Xiuzhengan [Amendments to theConstitution of the People’s Republic of China], Mar. 15, 1999, reprinted andtranslated in Constitutions of the Countries of the World (Gisbert H. Flanz, ed.),1999 Supp., at 1, 2 (article 11).

32. Id. at art. 5.33. Gongsi Dengji Guanli Zanxing Guiding [Provisional Regulations on Regis-

tration and Control of Companies] (approved by the State Council, Aug. 14, 1985;issued by the State Administration for Industry and Commerce, Aug. 25, 1985),1985 GWYGB 819 [hereafter Company Registration Regulations]. For a detailedsynopsis in English, see Corporation Registration Regulations Promulgated, Xinhua,Aug. 25, 1985, reprinted and translated in FBIS, Aug. 27, 1985, at K-5.

34. State Enterprise Rules, supra note 9.35. Zhonghua Renmin Gongheguo Zhongwai Hezi Jingying Qiyefa [Law of


the People’s Republic of China on Chinese-Foreign Equity Joint Ventures] (July 1,1979, amended April 4, 1990), 1 SWFGHB 196, 513 at art. 4.

36. Company Law, supra note 21. Professor Cohen notes this anomaly inJerome A. Cohen and Charles F. Goldsmith, Company Law—Unfinished Business,in 35 Int’l Comm. Litigation 37 (1994).

37. For a comprehensive discussion of this legislative tool, see Wei-dong Ji, OnReflective Mechanism of Law of Trial Implementation in China, in Wege zumJapanischen Recht: Festschrift fur Zentaro Kitagawa [The Way of Japanese Law: AFestschrift for Zentaro Kitagawa], at 753–769 (Hans Leser and Tamotsu Isomura,eds.).

38. Zhonghua Renmin Gongheguo Qiye Faren Dengji Guanli Tiaoli [Regula-tions of the People’s Republic of China for Controlling the Registration of Enter-prises as Legal Persons] (adopted by the State Council, June 3, 1988, effective July1, 1988), 2 SWFHGB 829, 1193.

39. General Principles, supra note 18, at arts. 41–49.40. Shenzhenshi Gufen Youxian Gongsi Zanxing Guiding [Provisional Regu-

lations of Shenzhen Municipality on Companies Limited by Shares] (adoptedMar. 17, 1992), translated in [1992] 4 CLP 12. These were supplemented in 1993by company regulations for the Shenzhen Special Economic Zone [SEZ]. Shen-zhen Jingji Tequ Gufen Youxian Gongsi Tiaoli [Shenzhen Special EconomicZone, Companies Limited by Shares Regulations] (adopted by the ShenzhenMunicipal People’s Congress on April 26, 1993), [1993] 7 CLP 13. Unlike theearlier Shenzhen Municipal Provisional Regulations, the later Shenzhen SEZcompany regulations were not expressly “grandfathered” by the Standards, note43 infra.

41. Shanghaishi Gufen Youxian Gongsi Zanxing Guiding [Provisional Regula-tions of Shanghai Municipality on Limited Share Companies] (adopted May 18,1992, effective June 1, 1992), [1992] 7 CLP 21.

42. Gufenzhi Qiye Shidian Banfa [Measures (Regulations) on Enterprises’Shareholding System Experiment] (issued by State Commission for Reform of theEconomic System [SRC], State Planning Commission [SPC], Ministry of Finance[MOF], People’s Bank of China [PBC] and State Council Production Office, May15, 1992), translated in SWB, June 19, 1992, at FE/1411/C1/1.

43. Gufen Youxian Gongsi Guifan Yijian [Views on Standards for LimitedShare Companies] (issued by the SRC, May 15, 1992), summary at [1992] 6 CLP10; Youxian Zeren Gongsi Guifan Yijian [Views on Standards for Limited LiabilityCompanies] (issued by the SRC, May 15, 1992), summary at [1992] 6 CLP 9.

44. These regulations covered financial management (MOF, SRC); accounting(MOF, SRC); registration and management of state assets (State Assets Manage-ment Bureau, MOF, and State Administration for Industry and Commerce); taxa-tion (State Taxation Bureau, SRC); labor and wages (Ministry of Labor, SRC);macro-economic control (SPC, SRC); auditing (State Audit Administration, SRC)


and land administration (State Land Administration Bureau, SRC). For a synopsisof the key ones, see [1992] 7 CLP 6–9.

45. Guanyu Daoxianggang Shangshide Gongsi Zhixing <<Gufen YouxianGongsi Guifan Yijian>> de Buchong Guiding [Implementation by CompaniesListing in Hong Kong of the “Standards for Companies Limited by Shares Opin-ion” Supplementary Provisions] (issued by the SRC on May 24, 1993), [1993] 10CLP 34. The State Council’s notice of May 15, 1993, is referred to in the Editor’sNote to the translation of these Supplementary Provisions.

46. Nicole Yuen, Editor’s Note, supra note 45.47. Company Law, supra note 21, at art. 229.48. Tanner, supra note 25.49. William P. Alford, Tasselled Loafers for Barefoot Lawyers, in China’s Legal

Reforms, supra note 25, at 22.50. For a thoughtful and comprehensive discussion of China’s legal aid system

and its relation to the rule of law, see Allen C. Choate, Legal Aid in China (AsiaFoundation Working Paper #12, April 2000).

51. Lubman, supra note 1, at 121.52. William P. Alford, Exporting “the Pursuit of Happiness” (book review of

Thomas Carothers, Aiding Democracy Abroad: The Learning Curve), Chapter 2,this volume, at p. 000.


8

A Legal Perspective on the Development ofElectoral Democracy in China

The Case of Village Elections

Jamie P. Horsley

Since its inception in 1949, the People’s Republic of China has provided inlaw—if not always in practice—for universal suffrage and an elected, rep-resentative government under the leadership of the Chinese CommunistParty. Under the rubric of “people’s democracy” or “socialist democracy,”the present four-tiered election system calls for direct elections by citizensof deputies to the township and county-level people’s congresses, with cas-cading indirect elections starting at the county people’s congress in whichcounty-level deputies elect the deputies to the next-higher provincial-levelpeople’s congress and provincial deputies elect those to the national-levelcongress. Leading government officials, in turn, are elected by the people’scongresses at the same level, rather than directly by the people themselves.

In the villages where the vast majority of Chinese people live, below thelowest level of official government structure, the township, China hasgranted a sort of “home rule.” For almost two decades, under a relativelyobscure law, the Chinese government and Communist Party have beenpromoting rural self-governance through a system of directly elected vil-lager committees answerable to villager assemblies composed of all adultvillage residents.

Village self-governance was promoted aggressively by Party stalwartPeng Zhen in the 1980s, and today enjoys public support—even if itseems to lack the same kind of devoted mentor—at the highest levels ofthe Chinese leadership. PRC President and Party Secretary Jiang Zemin, in

295

his address to the 15th Chinese Communist Party Congress in September1997, declared in an oft-quoted statement that “Expanding grassrootsdemocracy and ensuring that the masses can directly exercise their demo-cratic rights, manage their own affairs according to law, and create theirown happy life constitute the broadest practice of socialist democracy.”1

Speaking to the National People’s Congress in March 2001, Premier ZhuRongji committed China to press ahead with reform of the political sys-tem, implementing democratic elections, democratic decision-making,democratic management and democratic supervision, protecting the peo-ple’s rights and freedoms as prescribed by law and guaranteeing humanrights, while energetically improving socialist democracy and the legal sys-tem.2 A year earlier, in response to a Danish reporter’s question on howmany years it would take for China to upgrade to higher government lev-els the village system of multi-candidate, direct election of leaders, he re-sponded, “I hope the sooner the better.”3

From where did the concept of village electoral democracy spring, andwhat are its prospects and impact today? Tracing the development of itslegal framework reveals that it is neither a recent, foreign import, nor de-signed merely to placate foreign critics of China’s human rights record.On the contrary, the development of village electoral democracy is a seri-ously intended, hotly debated and continually evolving legislative accom-plishment. This paper discusses the development and institutionalizationof village elections over more than a decade of formal implementation,and their relationship to and influence on more open elections for peo-ple’s congress deputies, local government officials and Communist Partycadres, as well as their impact on urban-based grassroots democracy. Thisanalysis also explores village democracy’s role in helping promote the ruleof law in China.

Background on Villager Committees

“Grassroots democracy” in China typically refers to the system of villagercommittee elections and self-governance in the countryside amongChina’s 900 million farmers and rural residents.4 The villager committeesystem was first formally introduced in China’s 1982 Constitution, whichenshrined in Article 111 the basic tenet of villager self-governance and di-rect elections. Article 111 states:

296 j a m i e p. h o r s l e y

The residents committees and villagers committees established among

urban and rural residents on the basis of their place of residence are mass

organizations of self-governance at the grassroots level. The chairman, vice-

chairmen and members of each residents or villagers committee are elected

by the residents. The relationship between the residents and villagers com-

mittees and the grassroots organs of state power is prescribed by law.

The residents and villagers committees establish sub-committees for peo-

ple’s mediation, public security, public health and other matters in order to

manage public affairs and social services in their areas, mediate civil dis-

putes, help maintain public order and convey residents’ opinions and de-

mands and make suggestions to the people’s government.5

This unprecedented Constitutional provision6 originated in the eco-nomic and political reform that engulfed China in the wake of the decadeof radical politics referred to as the Great Proletarian Cultural Revolution(1966–76). The lawlessness and political excesses of that period led to callsfor the first time in 1978 for guarantees of popular control of leadershipand legal limits on leadership behavior,7 as well as discussion of separatingthe party from government.8 The Chinese Communist Party approved theimportant concept of “democratic institutionalization and legalization” inlate 1978,9 around the time that China witnessed the birth of the “Democ-racy Wall” movement. In 1979, even as the Party cracked down on pro-democracy activists, China adopted a more democratic electoral law forpeople’s deputies to the National People’s Congress (NPC) and local peo-ple’s congresses (LPCs), with direct LPC elections for the first time ex-tended beyond the primary-level township (xiang) level to the county(xian) level as well. The new PC electoral law was followed in 1980–81 bynationwide LPC deputy elections introducing a more open nominatingprocess, multiple candidates and secret ballots.10 Work began in Septem-ber 1980 on drafting a new Constitution to document and legitimize theeconomic and limited political changes that China was undergoing.

The dismantling of the rural communes following the Cultural Revolu-tion left a vacuum in political and community organization in China’svast and impoverished countryside, as well as a legacy of mistrust betweenfarmers and Party cadres. The concurrent spread of the rural householdcontract responsibility system with remuneration linked to output, firstinitiated by the farmers themselves, revitalized their sense of autonomy.Chinese farmers have a long tradition of being economically self-sufficient

Development of Electoral Democracy in China 297

and enjoying a sort of “rural home rule.” Formal government in tradi-tional times only extended down to the county level,11 and early Commu-nist Party organization relied on peasant associations and residents groupsof various types in the villages to carry out rural policies at levels belowthe townships, which were absorbed by the commune system after 1957.12

As the commune system fell apart, farmers began to take back control oftheir economic lives, and the administrative township level was restored.

Villager committees were formed spontaneously in several places start-ing in 1980 in the Guangxi Zhuang Autonomous Region, Sichuan andHebei Provinces and other areas.13 It made sense that the old system ofrelative village autonomy should be revived in some form to fill the vac-uum and help ensure stability in the countryside. The new element intro-duced by the People’s Republic of China was that the central governmentfor the first time in Chinese history sought to institutionalize directlyelected self- government in the villages.14

One of the principles adopted at the watershed Third Plenum of the11th National Congress of the Chinese Communist Party Central Com-mittee in December 1978—which also laid the groundwork for the policyof “opening to the outside” and economic reform that permitted foreigninvestment for the first time—was to protect the democratic rights of thepeasants in particular, as well as to build a socialist legal system to protectthe people’s democracy more generally.15 A resolution passed by the SixthPlenum in 1981 called expressly for the Party gradually to realize directdemocracy at the grassroots level.16 The concept of grassroots democracywas then formalized and legalized in the PRC Constitution of 1982.

The draft revised Constitution was introduced to the NPC in Novem-ber 1982 by Party veteran conservative Peng Zhen, who himself had beenpurged during the Cultural Revolution and was at that time Chairman ofthe NPC Legal Affairs Committee. Peng explained that the new Constitu-tion was intended, as a fundamental principle, to enable the whole peopleto exercise state power better.17 In addition to strengthening the NPC asthe highest organ of state power, he emphasized that the democratic basisof “organs of state power”—the people’s congresses—needed to be broad-ened at various levels down to the grassroots. In practice, the new Consti-tution would separate the people’s communes, as the organizational formfor the rural collective economy, from government administration; estab-lish the basic level of state power at the township (xiang); and give consti-tutional status to the mass organizations of self-governance such as urban


residents committees, introduced in 1954, and villagers committees, whichPeng observed had “long proved to be effective in our country. . . .”18

In 1984, the Ministry of Civil Affairs (MCA)—which had jurisdictionover non-governmental “mass organizations” such as the villager commit-tees—was tasked with implementing Article 111 by drafting Regulations(tiaoli) on Villager Committees, possibly referring initially to the model ofthe 1954 Regulations on the Organization of Urban Residents Commit-tees.19 By that time, villager committees (VCs) had already been estab-lished in some villages in most of the provinces, autonomous regions andspecial municipalities directly under the central government (then con-sisting of Beijing, Shanghai and Tianjin). By the end of 1984, Tianjin,which was the first place known to have adopted rules on VCs,20 Beijing,Inner Mongolia, Shanxi, Heilongjiang, Zhejiang and Ningxia had enactedrules governing the formation, responsibilities and election of VCs andFujian Province had already held its first VC elections in the absence ofany relevant law.21 Many of the first VC elections utilized voting methodstaken from the period of the people’s communes, in which one candidatefor each position was basically nominated by Party officials from thecounty, township and village level and the villagers merely raised theirhands to show approval or disapproval of the nominee list presented tothem.22

The MCA claimed that the nationwide establishment of VCs had basi-cally been completed by February 1985, with the formation of some950,000 VCs.23 The MCA held extensive discussions and investigations oflocal practices and conditions, reviewed the existing local legislation onVCs, and produced and re-wrote several drafts. A sixth draft of the VCRegulations was presented for vetting to the State Council Legislative Af-fairs Bureau on April 12, 1986. A seventh draft was then submitted to theNPC Standing Committee on October 11, 1986.

Why would the Chinese Communist Party, ever jealous of its monopolyon political power in China, promote village electoral and operationaldemocracy? Many pragmatic and instrumental justifications have beenput forward, including that democratic elections: (1) help improve vil-lager-cadre and villager-Party relations, facilitating the implementation ofunpopular central policies like family limitation and tax collection; (2)prevent civil unrest in the countryside by making village officials account-able to villagers and in the process also curbing corruption; (3) foster eco-nomic prosperity through the election of capable local leaders; (4) relieve


higher-level authorities from the burden of micro-management of villageaffairs; (5) fulfill the purpose of the socialist “mass line” in ensuring thatgovernment heeds the will of the masses; and (6) identify popular andcompetent villagers whom the Party could recruit, thereby helping toshore up the Party’s credibility in the countryside.24 However, strong argu-ments against village autonomy were put forward by central and localParty officials concerned that elected village officials would refuse to carryout central policies and that local autonomy would lead to chaos.

Accordingly, the draft villager committee regulations generated heateddebate in the NPC for almost two years after their introduction. Differ-ences primarily concerned the tasks, nature and degree of autonomy ofthe villager committees (VCs), that is, whether a relationship of less-intru-sive “direction” (zhidao) or more direct “leadership” (lingdao) should berequired between the township government and the villager committee.Other questions included payment of subsidies to the village heads andoperating funds for the VCs.25 During this period, the Political Reform Re-search Group organized by Premier Zhao Ziyang was drawing up the doc-ument that would be adopted by the 13th CCP National Congress on Oc-tober 25, 1987, as the General Program for Political Reform, which calledinter alia for widening socialist democracy and giving the NPC indepen-dent legislative authority, as well as separating the Party and governmentand taking the party out of economic management.26

The draft legislation went through several more revisions, with theMCA insisting on the relative autonomy of VCs, before Peng Zhen, bythen Chairman of the NPC Standing Committee, essentially took charge.27

He shepherded the bill, now in its 13th draft and upgraded in legislativestatus to a law, through the Fifth Session of the Sixth National People’sCongress. Due to continued disagreements, the deputies voted on April11, 1987 to adopt the trial law in principle and directed the StandingCommittee to finalize it only after further study. The Organic Law on Vil-lager Committees (for Trial Implementation) was finally adopted by theNPC Standing Committee on November 24, 1987, following a crucial sup-port-building meeting convened by Peng Zhen on November 21 to airfully the views of the chairmen of the standing committees of 29 people’scongresses of the provinces, autonomous regions and centrally-adminis-tered municipalities.28


Basic Provisions of 1987 Trial VC Law

The 1987 Organic Law of the People’s Republic of China on Villager Com-mittees (for Trial Implementation), which took effect June 1, 1988, was thefirst Chinese law to systematically institutionalize and legalize a system ofvillage self-government with direct elections. As is the case with many ex-perimental laws in China, the Trial VC Law was relatively brief, consistingof only 21 generally-worded articles.29

The primary goal of the law was stated to be ensuring villager self-gov-ernment (zizhi, sometimes translated as “self- management” or “auton-omy”) and the promotion of grassroots socialist democracy, material de-velopment and culture and ideology (Article 1). The Villager Committee(VC) was designated as the “mass organization of self-government at thebasic level, in which villagers manage their own affairs, educate themselvesand serve their own needs” (Article 2). The law highlighted areas of VC re-sponsibility such as public welfare, dispute resolution, communicating vil-lagers’ views to the higher-level township government and education onvillagers’ rights and obligations under the law. It also gave the VCs certainkey economic responsibilities including to manage and allocate villagelands and collective property, as well as to support cooperative economicundertakings and village production (Article 4).

The higher-level township government was to guide, support and as-sist—rather than to lead—the VC, which in turn was to assist the town-ship government in its work (Article 3). The relationship between VCs andParty branches in the villages was not addressed.

One VC was ordinarily to be established in each “natural village,” corre-sponding in most cases to the former production brigade.30 The establish-ment, adjustment or dissolution of a VC and its geographic scope was tobe decided by the Villager Assembly (Article 7), which is a body comprisedof all villagers 18 years old and above (Article 10). The VC itself is com-posed of three to seven members, including a chairman, one or more vicechairmen and ordinary members. VCs were to include an appropriatenumber of women and national minorities (Article 8).31 VC membershipwas not a full-time occupation, although members could receive somecompensation for their work on the VC.

On the issue of elections and election procedures, the Trial VC Law didnot offer much guidance. Article 9 provided only that the VC memberswere to be “directly elected” by the villagers, for a term of three years,


which could be renewed successively without limitation if a member werere-elected. In language taken from Article 34 of the 1982 Constitution,32

all villagers 18 years and older, regardless of ethnic group, race, gender, oc-cupation, family background, religious belief, education, property statusand length of residence, could vote and stand for office, unless they hadbeen deprived of their political rights. Article 19 of the Trial VC Law clari-fied, however, that staff of government agencies, members of the armedforces and personnel of state-owned economic entities and institutions re-siding in villages (but presumably not otherwise native villagers by birthor marriage) were not eligible to be members of VCs. The issue of whoqualified as a “villager” and was thus eligible to vote and stand for office inVC elections was to become an increasingly sensitive one as villager mo-bility increased over time.

The VC, as the “executive arm” of village governance, was accountableto the Villager Assembly (VA). The VA was given the important power torecall VC members and hold by-elections, as well as to make ultimate de-cisions on matters raised by the VC involving the interests of all the vil-lagers (Article 11), thus making it the “supreme organ of power in a vil-lage,”33 somewhat akin to the people’s congresses established at the town-ship level and above.34 The VA was also charged with formulating villagepledges and charters containing detailed stipulations to govern the day-to-day work of the VC and other village matters (Article 16). These docu-ments were to be filed with the higher-level township government.35

Funds needed by the VC to carry out its work were to be raised fromvillage-owned economic entities or the villagers themselves, as decided bythe VA, and not allocated from higher-level government revenues. In animportant move toward greater transparency and accountability in gover-nance, Article 17 called for all accounts of village revenues and expendi-tures to be made public at regular intervals for “supervision” by the vil-lagers and village economic entities.

Implementation and Revision of the 1987 Trial VC Law

Given the highly local subject matter of the Trial VC Law, Article 20 stipu-lated that the standing committees of the people’s congresses of theprovinces, autonomous regions and special municipalities directly underthe central government—rather than the MCA or another central govern-ment executive agency—were to formulate implementing measures in ac-


cordance with the Trial VC Law and the circumstances of their particularregion.36 In addition, below the provincial level, local governments andadministrative agencies promulgated more detailed regulations on elec-tions, village administration, and villager assemblies and villager represen-tative assemblies at the prefectural (diqu), county (xian) and townshipand town (xiang, zhen) levels.37

For a variety of reasons, including continued resistance from somecentral and local-level officials, as well as events surrounding the so-calledTiananmen Incident of June 4, 1989, the new VC system was slow to gainacceptance throughout the country. Provincial legislative efforts to imple-ment the law also proceeded slowly, with only two sets of general imple-menting measures adopted in 1988 (Fujian and Zhejiang Provinces), fourin 1989 (Gansu, Guizhou, Hubei and Hunan), five in 1990 (Hebei, Hei-longjiang, Liaoning, Qinghai and Shaanxi), five in 1991 (Tianjin, Shanxi,Sichuan, Jilin and Xinjiang), five in 1992 (Ningxia, Shandong, Henan,Inner Mongolia and Anhui), one in 1993 (Tibet) and two in 1994(Jiangsu and Jiangxi).38 Beijing subsequently adopted implementing mea-sures as well, and six provinces also passed more detailed electoral mea-sures.39

By the end of 1997, nine years after the Trial VC Law went into effect,26 out of 31 provinces, autonomous regions and centrally-administeredmunicipalities had adopted implementing measures, and there reportedlywere 905,804 VCs throughout rural China (the number of VCs decreasingas the number of villages declined due to urbanization) and 3,788,041 VCmembers.40 Notably, Shanghai, Guangdong and Yunnan Provinces,Hainan, the Guangxi Zhuang Autonomous Region (even though VCs hadspontaneously been organized through democratic elections there as earlyas 1980)41 and the recently-established, centrally-administered municipal-ity of Chongqing failed to pass the required legislation.42

The Trial VC Law contained virtually no guidance concerning electionprocedures, and no details on how such matters as registering qualifiedvoters, nomination of candidates, primary elections and the determinationof official candidates and design of ballots were to be handled, or what “di-rectly elected” meant in terms of actual voting procedures. Initially, somelocalities looked to the Election Law for the National People’s Congressand Local People’s Congresses (the PC Election Law) for guidance, butthat law did not necessarily address all of the issues in VC elections.43

Thus, the absence of election procedure details in the Trial VC Law ledto a plethora of differing local interpretations of how best to implement


the electoral system. The measures adopted varied greatly in terms ofnomenclature, organization and content.

To address widely differing practices and implementation, the MCA is-sued a total of nine circulars to guide enforcement of the law44 andadopted two further approaches. One was to promote model or demon-stration counties and villages, in which various initiatives could be pro-moted and successful experiences then widely publicized.45 The secondwas publication of national guidelines or “best practices” (guicheng) onvillage election procedures (the “MCA Election Guidelines”), to help stan-dardize local practice throughout the country to the greatest extent possi-ble in such important areas as voter registration; nomination by vil-lagers—rather than appointment by officials—of candidates; determina-tion of official candidates through an open primary or vote amongvillager representatives, rather than through the loose consultative practiceof “fermentation” (yunniang), so easily controlled by the Party and town-ship officials; voting methods and procedures, including use of secret bal-lot booths; transparent vote count; and immediate announcement of re-sults.46

In a related move, the MCA Department of Basic-Level Governance inJanuary 1994 began working on the revision of the Trial VC Law. This re-vision had been planned since the law’s adoption on a trial basis by theNPC Standing Committee.47 A draft revised law, taking into account theexperience achieved under the Trial VC Law and the recommendations setforth in the MCA Election Guidelines, was ultimately submitted throughthe State Council to the Third Session of the Ninth NPC Standing Com-mittee in June 1998.

In introducing the draft, MCA Minister Duojie Cairang noted that,“According to the Constitution, establishing self-governance organizationsat the grassroots level in rural areas and implementing the direct practiceof democratic rights by peasants is an important institution of the social-ist democratic political system and an important aspect of the peoplebeing masters of the country.”48 While much progress had been made inexpanding grassroots democracy, the Minister also pointed out that“[s]ome localities are still plagued by the problems of corruption and de-graded cadres who exploit the people or hurt the interests of the peasants.. . . Revision of the Trial Law will help advance the development of ruralgrassroots democracy, strengthen the Party-people and cadre-people rela-tionships, and promote rural economic development and social stabil-ity.”49


In a rare display of legislative transparency, NPC Standing CommitteeChairman Li Peng ordered the draft Revised Law to be published for com-ment in all major Chinese newspapers, including in the official People’sDaily on June 29, 1998. This reportedly was only the second national lawthe NPC had made available for public input.50 Around this time, the Cen-tral Committee of the Chinese Communist Party jointly with the StateCouncil General Office published a Notice on Universally Carrying OutOpenness in Village Affairs and the System of Democratic Management inVillages (the Village Transparency Notice),51 calling for greater trans-parency and increased accountability in village democracy, and MCAMinister Duojie Cairang held a first-ever press conference, to discussprogress of the “democratic process in China’s rural areas.”52 Party Secre-tary and PRC President Jiang Zemin, Li Peng and PRC Vice President HuJintao53 all publicly praised villager self-governance and democracy duringthat period. Suggestions from villagers and officials on revisions to theTrial VC Law began to be published in the Chinese press,54 with over 500letters received by the Internal and Judicial Affairs Committee of the NPCpraising the openness of the debate and making suggestions for revisionsto the Trial VC Law.55 Foreign organizations and election experts were alsoconsulted on revision drafts.

Permanent Organic Law on Villager Committees

On November 4, 1998, the NPC passed the permanent Organic Law of thePRC on Villager Committees (1998 VC Law).56 This law for the first timeincorporates into a modern Chinese election law certain important demo-cratic elements designed to ensure that the villagers truly have a choice.The 30–article Law contains seven articles (up from one in the Trial VCLaw) on electoral procedures, including open, direct nominations, multi-ple candidates, secret ballots and secret voting booths, public count, im-mediate announcement of election results and recall procedures, as well asstrengthened measures on transparency and accountability to ensure de-mocratic villager self-government.

The Trial VC Law defined the relationship between township govern-ments and VCs as one of “guidance” rather than “leadership.” The 1998 VCLaw affirms this approach and further prohibits townships from interfer-ing in matters that are within the purview of the VC (Article 4). The TrialVC Law did not, however, address the issue of the relationship between the


Communist Party and the VC, or the Party’s role in village elections andmanagement of village affairs, an issue that created much controversy atthe NPC. Ultimately, Article 3 of the 1998 VC Law provides that the ruralgrassroots unit of the Party should work in accordance with the PartyCharter and play a “core role in leadership” (fahui lingdao hexin zuoyong)within the village. The Party is instructed to act in accordance with theConstitution and the law to support and ensure that villagers develop self-governance activities and directly exercise their democratic rights. Thislanguage, while laudatory in its direction to the Party to uphold democra-tic practices in accordance with the law, has surely not resolved the roleand relationship of the Party in village affairs. As one scholar puts it, “Chi-nese villages are managed by two organizations: a Party branch and a vil-lagers’ committee,” with the VC serving as the village’s political base(jichu), and the Party branch as the “leadership core” (lingdao hexin).57

Several provisions of the 1998 VC Law, however, appear to attempt to cir-cumscribe the direct role of the Party in village elections.

Article 13 makes clear that elections are to be administered by a VillagerElection Committee (VEC), which handles procedural matters like voterregistration, administration of the nomination stage, organizing primariesand the final election. Significantly, the law requires the VEC to be selected(tuixuan) by the VA or villager small groups. In practice under the TrialVC Law, the Party Secretary of the village frequently headed the VEC, call-ing into question his, and the VEC’s, impartiality toward non-Party candi-dates in dealing with questions such as whether a ballot was properly filledout or should be thrown out.

The Trial VC Law did not mention the critical nomination process,which for years was dominated or controlled outright by the local PartyBranch. As pointed out by scholars of Chinese elections, an electoral sys-tem cannot be deemed to be “democratic” if one group or party can deter-mine all the candidates.58 The new law has two stipulations relevant to amore open nominating process. Article 14 of the 1998 VC Law providesthat candidates are to be nominated directly by villagers who are eligibleto vote and, importantly, Article 11 explicitly prohibits “any organizationor individual” from appointing, designating, or removing and replacingVC members, other than in accordance with the election and recall proce-dures stipulated in the Law.

Details on the nominating procedures and selection of official candi-dates—and the decision as to whether to hold primary elections—are left,however, to local discretion. Following the adoption of the Trial VC Law,


in an attempt to open the process, the MCA encouraged experiments withdifferent nominating processes, including nomination by villager smallgroups, self-recommendation, individual nominations and joint nomina-tion by several villagers. More recently an open and competitive methodreferred to as haixuan or “sea election” has gained widespread popularity.Originated by farmers in Lishu County, Jilin Province,59 this method oper-ates like an open primary, in which every voter has the right to nominatecandidates for all open offices, candidates are often permitted to makecampaign speeches and the top vote-getters then go on to compete in thefinal election. Many provincial electoral measures now provide for someform of primary to determine the final, official candidates for VC mem-bership, replacing the “fermentation” process of winnowing the field thatcould so easily be dominated by a few individuals.60 However, the 1998 VCLaw itself does not unify nationwide practices in the important nomina-tion and official candidate selection process. Nor does it require or evenmention primary elections.

Article 14 for the first time mandated that there be more candidatesthan positions to be filled in VC elections, although it is silent on the ques-tion of write-in candidates, which most provinces, following Article 37 ofthe PC Election Law, permit.61 The 1998 VC Law repeats the voter eligibil-ity standards set forth in the Trial VC Law and Constitution, and adds thatthe list of eligible voters is to be publicized at least 20 days before the elec-tion,62 but does not address the voter registration process in detail.

Article 14 also calls for secret ballots, specifying for the first time in anyChinese electoral law that secret voting booths shall be set up during theelections, to help ensure the true secrecy of the vote. This is an importantadvance in a country where consensus and group action dominate the po-litical and social scene. Under the Trial VC Law, voting in a secret boothwas optional, and many villagers felt anti-social using the booths andkeeping their vote to themselves. Voter education on the importance of se-cret ballots and use of the special booths, combined with a mandatorylegal requirement, should help overcome this social obstacle. However, aslong as local regulations continue to permit proxy voting and so-called“roving” or mobile ballot boxes for voters who cannot come to the pollson election day, ensuring the secrecy and integrity of each individual bal-lot will remain problematic.

Article 14 further requires open or public vote counting and the imme-diate announcement of election results. These two requirements will helpbolster the credibility of the election. That article also specifies that the


election is valid only if more than 50 percent of eligible voters cast ballots.Candidates, in turn, are considered elected only if they garner more than50 percent of the votes cast, setting a relatively high threshold (replicatedin the PC Electoral Law) that results in practice in frequent VC run-offelections.

The 1998 VC Law further stipulates that new elections are to be heldpromptly at the end of each three-year term, attempting to eliminate ob-struction in the form of delaying elections, which is a frequent complaintby villagers. It restates and amplifies the recall provisions, under whichone-fifth of the villagers can jointly petition to recall a VC member forcause, and over 50 percent of eligible voters must approve the recall re-quest (Article 16).63

As under the Trial VC Law, the people’s congress standing committeesof the provinces, autonomous regions and centrally- administered munic-ipalities—rather than the MCA or another central authority—are giventhe power to adopt detailed electoral procedures and other implementingmeasures in line with the general provisions of the 1998 VC Law. Nearlyhalf of these standing committees moved quickly to do so, and by the be-ginning of 2002, at least 26 provinces had passed implementing measuresand 29 provinces had promulgated VC electoral measures.64

On the VCs themselves, the 1998 VC Law retains the same provisionson the composition and duties of the VC and its relationship to the Vil-lager Assembly. Article 19 spells out, however, the types of matters forwhich the VC must obtain the approval of the VA, including use of the vil-lage financial reserve, VC member compensation, use of income collectedfrom the village collective enterprises, fund-raising plans for public ser-vices like schools and transportation, development of any new collectiveenterprises and public services in the village, household contracts andland allocation, as well as other matters the VA may consider require itsapproval. The Villager Assembly reviews the VC’s annual report and evalu-ates members of the VC. The VA is to be convened by the VC, but Article18 provides it may also be convened at any time upon the request of 10percent of the villagers (a reduced threshold from the 20 percent require-ment of the Trial VC Law).

Article 21 of the 1998 VC Law for the first time authorizes the practiceof forming Villager Representative Assemblies (VRAs), akin to expandedexecutive or standing committees, in larger or widely dispersed villageswhere it may be impracticable to convene the entire adult populationcomprising the Villager Assembly more frequently than once a year.65 The


Law stipulates representatives are to be elected, with at least one represen-tative for every five to 15 households, or several representatives for eachvillager small group. The Law also authorizes the VC to form villager smallgroups according to the residence pattern, with leaders to be selected atvillager small group meetings (Article 10).

The 1998 VC Law further makes advances in the area of implementingdemocratic and open villager self-governance beyond electoral democracy.Article 2 introduces the so-called “four democracies” of village self-gover-nance: democratic election, democratic decision-making, democraticmanagement and democratic supervision. Reiterating a provision of theTrial VC Law, Article 20 authorizes VAs to formulate informal rules of vil-lager self- management called charters and village pledges. Not only mustthe VC obtain approval from the VA (or VRA) for action on specified mat-ters, but Article 21 stipulates the VC must also adhere to the principle of“open management” of village affairs, publicizing financial issues every sixmonths, and promptly making public decisions on a variety of importantcommunity-related matters including family planning, disaster relief, pay-ment of electricity and water bills, etc. Article 21 further gives villagers theright to report to the higher-level governments if the VC does not publi-cize materials in a timely and accurate manner, and responsible personsare to be held liable for any violations that are verified through investiga-tion, thus making VC members directly accountable to the villagers.

Comparison to Election Law for People’s Congress Deputies

As mentioned above, in the absence of detailed election procedures underthe Trial VC Law, some localities initially consulted for guidance the Elec-tion Law of the National People’s Congress and People’s Congresses atVarious Levels (the PC Election Law),66 under which villagers directly electdeputies to the township- and county-level people’s congresses. China’selectoral system is based on models developed during the revolutionaryyears of the Communist Party and first formally adopted in 1953.67 It es-tablishes a four-tiered system of nominally representative government,under the monopoly of the Communist Party, with people’s congresses atthe central, provincial, county and township level. Townships are thebasic-level foundation of the formal, nationwide Chinese governmentstructure. Direct elections at the township level, provided for since 1953,have been held every three years since 1980 under the PC Election Law to


select deputies to the Township People’s Congresses (TPCs). The TPCs inturn elect magistrates and vice magistrates to head the township govern-ments.

The PC Election Law represented major advances in democratic elec-tions in 1979. It extended direct elections for the first time upward fromthe township to the county level, where deputies are elected for five-yearterms, and made deputies at both the township and county levels respon-sible to and subject to recall by their constituencies, the voters who electedthem. At the time of the law’s adoption, there was talk that experiencewith direct elections at the county level would lay a favorable foundationfor direct elections of the people’s congresses at all levels within China.68

The 1979 law also provided for secret ballots at all levels of elections(under the 1953 Electoral Law, voting could be by show of hands at thetownship level, although it was by secret ballot at higher levels); made thenomination process more open—including allowing nomination by indi-vidual voters or deputies with at least three other signatures in support;mandated more candidates than the number of open positions, to makethe elections more truly competitive; permitted write-in candidates; andcalled for all manner of campaigning on behalf of candidates up untilelection day.69

The PC Election Law was amended in 1982, 1986 and 1995. Over theyears, some positive elements were introduced, such as stipulating thatthere should be an appropriate number of women deputies and that thepercentage of women deputies should be gradually increased (Article 6,added in 1995), and limiting the number of proxies that a single votercould hold to three. However, other changes—such as narrowing thescope of campaigning to organized background briefings and requiringjoint nominations by at least 10 voters or deputies rather than by the orig-inal three—did more to constrain rather than liberalize the electoral sys-tem. Moreover, no serious proposals have been put forward to move directelections up to the provincial and national levels.70 In addition, the nomi-nation provisions that permit political parties and mass organizations, aswell as groups of 10 voters or deputies, to nominate candidates, and thatstipulate a “fermentation” process rather than a true primary to determinethe official candidates at the township and county levels, still make it pos-sible for the local Party branch to retain a good deal of control over deter-mining the final candidate list even at levels where there are direct elec-tions.71


The 1998 VC Law and practices developed thereunder highlight someof the deficiencies in the PC Election Law:

(1) The PC Election Law does not provide for self-nomination or indi-vidual nominations, as is permitted under the VC Law. Instead,pursuant to Article 29, nominations for deputies at the nationaland local levels are to be made on the basis of electoral units (usu-ally production units, business units or work units), by the variouspolitical parties and mass organizations, or by groups of 10 ormore voters or deputies acting jointly. A list of all nominees is to bemade public by the election committee for “discussion and deliber-ation” by constituent groups and a list of official candidates, osten-sibly based on the majority opinion of the voters, is then to be pub-lished five days before the election date. Only in the case of indirectelection by the PC deputies rather than residents at the provincialand national levels does it appear that a true primary election isheld to determine the final candidates.

(2) Similarly, while Article 30 of the PC Election Law requires multiplecandidates for deputy positions, the stipulated percentage by whichthe number of candidates is to exceed the number of positions tobe filled declines to one-third from twice as many candidates at thetownship and county levels, to 20 to 50 percent as many candidatesat the provincial and national levels. Thus, the higher up the sys-tem one goes, the less choice is afforded.

(3) Although Article 36 does provide for secret ballots, the PC ElectionLaw does not mandate private ballot booths in which to write outthe ballot, which experience with VC elections has shown is impor-tant to ensuring the secrecy of voting.

(4) Moreover, the law explicitly permits “roving” ballot boxes (Article34) to be taken around to voters who cannot make it to the polls,and continues to allow “proxy voting” for absentee voters (Article38). While these provisions may have been introduced with goodintentions to facilitate voting by incapacitated, busy or absent vot-ers, experience in VC elections has shown that both practices—notaddressed in the 1998 VC Law—can give rise to fraud and abuse ofthe secret ballot principle, which the use of private polling boothsis intended to minimize. A more advanced model to consult onthese matters is Fujian Province’s Measures for Villager Committee


Elections adopted July 28, 2000, which eliminate proxies altogetherand limit the use of roving ballot boxes strictly to those who are el-derly, infirm, disabled or ill.

(5) The law does not provide for a transparent, open counting of bal-lots or immediate announcement of the results, both of whichmeasures are important to the integrity and credibility of the elec-tion, as does the 1998 VC Law.

Some Chinese officials believe that democratic improvements in the1998 VC Law have created the conditions for the NPC once again to revisethe PC Election Law. Certainly, villagers becoming accustomed to themore open and competitive election procedures for VC elections maybegin to demand a similar degree of choice for direct township andcounty PC elections in which they also participate.72

Efforts indeed are underway to improve direct deputy elections, shortof revising the law itself. Beijing Municipality, for example, has held threedirect elections since 1996, one for people’s deputies at the county and dis-trict level (for five-year terms), and two for those at the township andtown level (for three-year terms), with voter participation rates of over 95percent. Members of the Beijing Municipal People’s Congress have raisedthe necessity of reforming voter registration and other procedures in viewof greater population mobility, and in 1998 began to promote meetingsbetween township deputy candidates and voters, as well as general votereducation on the functions of PCs and their deputies.73 NPC StandingCommittee Chairman Li Peng has commented on the need for local legis-lators to increase their contacts with ordinary people, as part of a drive toimprove democracy and the legal system in China.74

In recent years, the PCs have, moreover, begun cautiously to exercisesome of their own powers of election and confirmation.75 Deputies to theGuangzhou Municipal People’s Congress called for true decision-makingpowers rather than the traditional “review and approval” over importantmatters (much as Villager Assemblies do in respect of major village af-fairs), and the Guangdong Provincial People’s Congress reportedly agreedand adopted the proposal as law in October 2000.76 The Beijing MunicipalPeople’s Congress followed suit by deciding in April 2001 to evaluate theperformance of a vice mayor, calling it a “new step for the democratic su-pervision of those public servants elected by the municipal people’s con-gress,”77 and in February 2001, the congress in the scandal-wracked north-eastern city of Shenyang made waves by rejecting the local court report, an


almost unprecedented act of independence that led to a reorganization ofthe court and a new report approved in August 2001.78

As early as 1988, a small number of provincial and municipal PCselected their own candidates for provincial vice governorships and vicemayorships, rather than those candidates designated by the Party. In thespring of 1993, six candidates nominated by PC deputies and not on theParty list were elected to vice governorships and, for the first time in thePRC’s history, two Party-sponsored candidates for provincial governor-ships (Guizhou and Zhejiang) were defeated by candidates put forward bythe provincial PC deputies themselves.79 In 1989, the Hunan ProvincialPeople’s Congress recalled a vice-governor.80

These movements toward greater PC autonomy and activism accordwith current central policies on implementing nationwide democratic de-cision-making and supervision, as well as calls by NPC Chair Li Peng tostrengthen the supervision work of the PCs as part of developing socialistdemocratic politics and administering the country according to law. In-deed, a Supervision Law to standardize and strengthen the NPC’s work ofsupervising governments, court and procuracies has been under draftsince 1990 and was included in the 2001 NPC legislative plan.81 Althoughincreasing independence of PCs at all levels is occurring without the pres-sure of competitive direct elections, the general environment of politicalreform and greater transparency and accountability bolstered by the posi-tive experience with VC elections and self-governance, which is often citedby the leaders introducing the reforms, seems to be having a definite im-pact. Moreover, calls for an expansion of direct elections are increasing.82

Enforcement Issues

As impressive as the VC Law is in codifying democratic advances in vil-lager self-governance, the law does not mean much if villagers cannot anddo not seek to enforce its provisions against those who might attempt toimpede, delay or otherwise obstruct the workings of competitive electionsand democratic management of village affairs. As we say in the West,“Every right must have a remedy.” Violations of and official reluctance toimplement proper election procedures have been rife since the inceptionof VC elections,83 and have continued even after adoption of the perma-nent 1998 VC Law.84 Indeed, Yunnan did not even hold VC elections be-fore the year 2000.


Villagers have used the recall provisions of the law,85 as well as normalelection procedures every three years, to rid themselves of incompetent orcorrupt VC officials. Incomplete statistics from about a quarter of China’sprovinces and special municipalities suggest that on average slightly over20 percent of VC chairpersons are not re-elected, though the percentagesranged widely from a low of 2 percent not re-elected in Shanghai to 48percent turnover in Ningbo, Zhejiang.86 Some village officials have report-edly even been sued for election fraud and prosecuted for abuse of power,such as for not holding a new election on time, although it is not clearwhat the legal basis for the prosecution was.87

Villager Committees are not state government organizations, nor areVC members technically “state personnel.” Thus, administrative and crim-inal provisions applicable to elections of and offenses involving state per-sonnel do not technically apply to VC members or violations of the 1998VC Law. That law, in Article 15, provides only that villagers have the rightto report and appeal to the higher-level government offices or people’scongress (PC) instances of bribery, threats, counterfeit ballots and otheractions that prevent villagers from exercising their right to vote or disruptvillage election proceedings. Relevant government departments, normallythe civil affairs departments, are authorized to investigate and handlethese cases. While this explicit appeals provision is a big improvementover the Trial VC Law, which did not address the issue of enforcement, thelocal PCs, governments and administrative authorities are not given anyspecific enforcement powers other than the authority to invalidate elec-tions found to involve threats, bribery, counterfeit ballots and the like.88

An NPC official involved in drafting the 1998 VC Law explained that itwas intended to be a “soft law” without much teeth, since it deals withmatters arising among villagers, much like family relationships, bettersuited to informal resolution than strict enforcement provisions andpenalties. The official acknowledges that the drafters were not focusing onthe fact that most violations of the law are attributable not to fellow vil-lagers but to higher-level officials and Party members against whom thevillagers have no effective recourse.89

In contrast to the VC Law, Article 52 of the PC Election Law stipulatesthat administrative and criminal sanctions are to be imposed against thosewho prevent voters for people’s congress deputies and local governmentofficials from freely exercising their right to vote and stand for election, orotherwise interfere with or manipulate elections, or take reprisals againstthose who register complaints on breaches of the law or request removal


of a deputy.90 This provision is, moreover, implemented in specific articlesof China’s Criminal Law. For example, Article 256 of the Criminal Law91

provides that “those who undermine the elections or obstruct voters anddeputies from freely exercising their right to vote or be elected by usingforce, coercion, deception, bribery; by falsifying election documents; bymaking a false report on the numbers of ballots; or by using other means,if the case is serious, are to be sentenced to three years or fewer in prison,put under criminal detention, or deprived of their political rights.” Article254 imposes up to seven years imprisonment for state personnel whoabuse their authority by retaliating against petitioners and critics, and Ar-ticle 397 provides for up to seven years imprisonment for abuse of powerby state personnel generally. Other criminal provisions cover graft, briberyand extortion by state personnel, and similar but lesser offenses notamounting to crimes are punishable under the Regulations on Public Se-curity Management and Punishment of Violations.92

In April 2000 the NPC Standing Committee, in a rare exercise of itspower to interpret Chinese law, issued an opinion that members of VCsand other personnel of village grassroots organizations are covered by thedefinition of “state personnel” in Article 93 of the Criminal Law, if theycommit certain crimes of graft, corruption and abuse of power when as-sisting the people’s governments to carry out specified governmentwork.93 This interpretation effectively extends to VC members and the vil-lagers who elect them certain of the responsibilities and remedies underthe Criminal Law described above, but only in respect of activities under-taken by the VCs to assist the higher-level government bodies, not in re-spect of acts taken when fulfilling their work as VC members per se. Thislimited interpretation also does not extend the Criminal Law provisions toVC election fraud and abuse. As such, this opinion serves to highlight thedeficiencies of the VC Law in failing to provide any enforcement “teeth.” Itwould be very helpful to ensure that the VC Law is implemented seriouslyif the NPC, in advance of the next revision of the VC Law and the Crimi-nal Law, could make a similar interpretation that would extend theseCriminal Law provisions that are applicable to “state personnel” to theelection and activities of VC members.

Villagers may have recourse under the 1989 Administrative LitigationLaw and 1999 Administrative Reconsideration Law,94 when “administra-tive authorities” interfere with the exercise of their rights. Unfortunately,these laws do not specifically cover complaints of interference or other ir-regularities in village (or other) elections, and the penalties for obstructing


implementation of the 1998 VC Law are not clearly spelled out in that lawor elsewhere. Accordingly, MCA officials say the courts and even adminis-trative agencies are reluctant to accept cases involving the VC Law, therebyweakening its impact and often forcing villagers to resort to appeals to thepress and protest actions, and VC leaders frustrated by Party interferenceagainst which they have no effective recourse to resign.95

Rural residents, indeed, have not been shy about complaining tohigher-level authorities when officials abuse the election process and vio-late the rights they have been given under Chinese law. The MCA says it isbeing inundated with complaints from villagers when interference in VCelection procedures occurs, or when the provisions of the VC Law are notbeing followed. The China Youth Daily reported on December 31, 1999that in the first half of 1999, some 31 percent (up from 17 percent during1998) of all complaints filed with the MCA concerned problems with vil-lage election procedures and villager committee self-rule, and provincialauthorities file with the MCA annual and case-specific reports on the han-dling of a broad variety of VC election-related complaints.96

The increasing volume of administrative complaints, as well as recallrequests and election turnover, do indicate that, while serious problemswith VC elections and self-governance exist, villagers are beginning to takeseriously their rights and interests as set forth in the Villager Committeelegislation and are seeking to enforce those rights against village leadersand higher-level officials. However, clear and stiff penalties, and a clear ju-dicial remedy, for violations of the 1998 VC Law will be necessary to en-sure resolute implementation and adherence to the VC Law, as well as topreserve its credibility among China’s villagers.

Urban Elections: Residents Committees and Communities

The 1998 VC Law has an urban counterpart in the Organic Law on UrbanResidents Committees, adopted by the NPC Standing Committee in De-cember 1989 (the RC Law),97 two years after the Trial VC Law was passed.This law replaced the 1954 Organic Regulations for Urban ResidentsCommittees,98 which provided that RCs were to be mass organizations ofself-governance elected by residents small groups, and has its constitu-tional basis in the same Article 111 that authorizes the establishment ofvillager committees in the countryside.99


The RC Law was based on a functioning, though not very popular, sys-tem of residents committees (sometimes referred to in Western literatureas “neighborhood committees”) responsible for a variety of largely civilmatters such as mediation, household registration and the like.100 As ofthe date of its passage in December 1989, some 100,000 RCs and 360,000RC members or “cadres” already existed,101 which numbers had, by theend of 2000, increased to 108,000 RCs with roughly half a million servingRC members, established in more than 98 percent of the residential areasthroughout the nation.102 However, the RC electoral provisions wereseemingly pretty much a dead letter until the late 1990s,103 despite govern-ment statistics that showed that 46 percent of China’s provinces and mu-nicipalities had completed the third round of RC elections by the end of1996, with some 23 having promulgated detailed implementing rulesunder the RC Law.104

Never thoroughly implemented in urban areas dominated by industrialenterprises and competing with a variety of other active mass organiza-tions like the Communist Youth League, women’s associations and localParty branches, the RCs apparently lacked a sustained, popular base onwhich to develop their social organizing and civil governance potential.Building on the successful experience to date with VC elections and in re-sponse to changing urban conditions, approximately 20 cities were se-lected in late 1999 to experiment with more open RC elections and newapproaches to urban community self-governance. Revisions to the RC Laware planned within the near future, after further study and investigation.105

The 1989 RC Law takes much of its language from the 1987 Trial VCLaw, including language that the Residents Committees (RCs) were to beself-governance (zizhi) organizations at the grassroots level for residents’self-management, self-education and self-service (Article 2). RCs are to beestablished in residential areas consisting of 100–700 households, and tobe composed of five to nine persons, with a chair, vice chairs and severalmembers, elected for three-year terms. Duties of the RCs are similar tothose of the VCs, except that RCs do not get involved in economic mattersas the rural VCs do with collective enterprises and land allocation, butrather initiate community services for their urban constituencies. RCs re-port to Residents Assemblies, which are to consist of all residents 18 yearsor older, but may also be composed of one or more representatives fromeach household, or of two to three representatives selected by each resi-dents small group (Article 9).


The RC Law does not mandate the direct election of RCs by the resi-dents, but permits household representatives, or resident small group rep-resentatives, to elect the RC members. It also contains none of the elec-toral procedures and protections that were ultimately included in the 1998VC Law, such as individual nomination, multiple candidates, secret ballotsand mandatory secret balloting booths, and an immediate and transparentvote count.106 As a result, most RC members have typically been appointedby the Communist Party, with no true competitive elections being held.107

Beijing, one of the trial RC cities, adopted the Beijing Residents Com-mittee Election Measures, effective June 1, 2000, specifying how RC mem-bers are to be elected and how the RCs will function.108 Beijing boastsmore than 5,000 RCs in its 18 districts and counties, but Beijing civil af-fairs officials concede that RC elections had never been carried out in anopen and competitive manner and “government influence” admittedlyhad never been completely excluded.109 Such officials now talk of building“communities” and expanding grassroots democracy,110 but they also ac-knowledge challenges such as lack of public interest (as well as skepticism)due to years of non-participation in neighborhood affairs and the per-ceived absence of a direct connection between the RCs and the city-dwellers’ economic and social interests. Such economic connections areincreasing as government and state-owned employers become less in-volved in providing daily life supports, including housing, schooling,medical assistance and retirement benefits, as well as the number of laid-off workers and the unemployed rise and urban residents must look forother sources of support.

Recent reports indicate that other large cities like Shenyang, anothertrial city that is plagued with bankrupt state industries and ballooning un-employment, are redrawing old neighborhood lines to create “communitydistricts” that are larger, covering in one case a total of 4,800 households asopposed to the 100–700 stipulated by the RC Law.111 Shenyang officialsspeak of returning power to the people,112 and creating the urban equiva-lents of the villager committees, including holding committee elections. Asone Shenyang official said, “It used to be that the grass-roots organizationswere actually the ‘feet’ of the government, just following where they weretold to go. . . . Now these local organizations have to become the heads,guiding change.”113 Nanjing also held its first direct RC elections in May2000, after reorganizing some RCs into larger “community committees.”114

These urban experiments clearly have much in common with the expe-rience of the Villager Committees. Lessons learned by the MCA, which


also has jurisdiction over the RCs, on how to introduce and implementopen and credible elections, as well as train the elected leaders and popu-lace in local self-governance, can be applied as well in the urban setting,though many of the social and economic issues to be handled will be dif-ferent.

Experiments in Direct Election of Government Officials

Another area in which democratic experimentation has begun is that ofmoving toward more direct election of local government officials. Article101 of the Constitution and provisions of the Organic Law of the PRC forLocal People’s Congresses and Local Governments at All Levels (the “LocalPC and Government Law”) provide that township people’s congresses—rather than the residents—are to elect the township leaders and deputyleaders, just as the PCs at the various higher levels elect their respectivegovernment leaders.115 The Local PC and Government Law (but not theConstitution, which is silent on procedural issues) further stipulates thatthe people’s congress standing committee or presidium or groups of 10deputies jointly—again rather than the residents—are to nominate thecandidates for election to township government offices.

Despite these legal provisions to the contrary, various developments in1998 encouraged talk of extending direct elections of governing officialsfrom the villages to the township level. These events included the jointParty and State Council 1998 Village Transparency Notice on increasingopenness and democracy in the management of village affairs, which alsocalled for “energetically exploring ways to carry out open administrationin township and town organs,”116 public discussion of the importance ofdeepening democracy at the village level, and passage of the 1998 VC Law.

In this environment, reform-minded government and Party officials inthe Central City District of Suining Municipality, Sichuan Province, orga-nized what has become perhaps the best known “public election” (gongx-uan) for a township magistrate, in Baoshi Town, in June 1998.117 The ex-periment was given the green light by the Party Departments of Organiza-tion at both the municipal and provincial levels. Residents were invited toregister to run for the position, and after examination and screening byvillage and township representatives, several semi- finalists and ultimatelytwo finalists were selected with input from a broad cross-section of repre-sentatives. Following the stipulations of the Constitution and Local PC


and Government Law, the Baoshi Town People’s Congress made the finalchoice between the two official candidates. This election was followedshortly by 13 other so-called “public elections” within the District.

In December 1998, another small township within the District calledBuyun quietly went beyond the “public election” model and held a direct,popular election for magistrate.118 This election was organized again bythe Central City District and Suining Municipality, but without seekinghigher-level approval. Nominations were made through a kind of primaryin which a selective group of 162 electors participated, though individualscould nominate candidates with the endorsement of at least 30 signatures.Three official candidates emerged, two selected out of 15 initial nomineesand the third nominated by the Buyun Party Committee. A 10–day cam-paign period with 13 open debates among the three candidates was held.Election day on December 31 witnessed a 54 percent turnout rate. Allpolling stations were organized for secret balloting. Photographs were puton the ballots for ease of identification. The election results were an-nounced over the town public broadcast system that afternoon. On Janu-ary 4, 1999, again arguably in accordance with existing election regula-tions, the Buyun Township People’s Congress “recognized” the election re-sults as valid and legal.

Central government reaction was mixed. The Legal System Daily(Fazhibao) on January 19, 1999, criticized the election for oversteppingthe law, and violating the principle of governing the country in accor-dance with the law, by not having the Buyun Township People’s Con-gress actually elect the magistrate, but praised the “democratic con-sciousness” (minzhu yishi) manifested in Buyun.119 Moreover, a shortcommentary printed only a week later on January 23 noted: “Significantchanges often take place in the countryside quietly. History has remem-bered Xiaogang Village that started the household responsibility system20 years ago. By the same token, history will also remember BuyunTownship for its effort to promote direct election of township magis-trates. Xiaogang is the prelude of China’s economic reform. Will Buyunbecome a landmark of China’s political reform?”120 Eighteen monthslater, one Western newspaper report concluded that Buyun residents be-lieve a directly elected magistrate is more accountable than an appointedone, and none of the local officials who supported the unauthorizedelection have been punished.121

Another experiment, referred to by various commentators as “people’snomination” (minxuan) or the “three-ballot” system, was tried in Dapeng


Town in Shenzhen, Guangdong Province, in the first quarter of 1999, withthe approval of the NPC Standing Committee.122 All registered voters wereallowed to participate in an open primary to nominate candidates fortown magistrate (first ballot), referred to by the local Party and govern-ment officials as a “sea election” (haixuan). Those receiving more than 100votes who met eligibility requirements, including an upper age limitationof 50, then underwent an indirect election or “public opinion poll” (minyiceping) by some 1,068 electors (one-fifth the voting population) com-prised of local officials, Party members, VC officials, VSG heads, town res-idents’ representatives and representatives of enterprises and unions (sec-ond ballot). The candidates gave campaign speeches at an open forum,followed by the final vote. The winning candidate’s name was then sub-mitted to the town people’s congress for a confirming vote, as the sole can-didate for magistrate (third ballot).123

A town in Guangxi held a variation on “public election” to fill a vacancyfor deputy magistrate in April 2001,124 and other forms of experimenta-tion are expected to continue, although no decision seems to have beenmade on when direct township official elections might be popularized na-tionwide.125

As this paper goes to press, the NPC is administering a new round ofTownship People’s Congress (TPC) deputy elections over two years, whichbegan at the end of 2001. NPC staffers revised a statistical form to use inthis round to identify issues in implementing the existing law, such as levelof participation by and election of various segments of society (women,national minorities, workers, etc.), the frequency of use of methods suchas proxies and roving ballot boxes and other issues that affect the quality ofelections. Moreover, the NPC is well aware that the experiments discussedabove evidence a trend toward greater popular participation and competi-tion in the selection of government officials as well as PC deputies.126

Indeed, despite the dampening effect on reform efforts of a centralgovernment circular issued in the summer of 2001 that stipulated thecurrent round of TPC and local government elections must not violatethe law or the Constitution,127 Buyun held another, slightly modifiedpopular election of its magistrate in December 2001, re-electing the in-cumbent by a narrow margin in an election that was ultimately votedon—rather than merely “recognized” as in 1998—by the Buyun TPC.128

No central government reaction was immediately forthcoming, indicatingthat further quiet experimentation with election procedures for townshipgovernment officials in the current electoral round may be permitted,


although organizers are proceeding cautiously and incrementally at thisstage.

Reform of Party Elections

Democratic influence is also being felt within the Communist Party, manyof whose members head or serve on Villager Committees, and reflected inits inner-Party elections. In response to popular demand, a so-called “two-ballot system” was introduced first in Hequ County, Shanxi Province, in1991 and subsequently in selected other locations. Under this system, resi-dents (including non-Party members) first cast ballots in a sort of opinionpoll on their favorite candidate for Party secretary. Party members thenelect the local Party secretary based on a candidate list of those who re-ceived over 50 percent of approval votes in the first poll or election. TheHequ two-ballot system thus affords the general public the opportunity toinfluence to some extent the selection of Party branch members and secre-taries.129

The Party Central Organization Department, moreover, reportedly rec-ommended that all provinces experiment with this system.130 Two such“two-ballot” elections for township Party secretaries took place in Decem-ber 1999 in central Henan,131 while reports from Sichuan Province indi-cate that over 50 percent of villages had selected their Party secretariesthrough open recommendations and selection since 1998 and as of Febru-ary 1999.132 Fujian Province may be the first to stipulate that all Party sec-retaries at the village level must, beginning in the year 2000, undergo a“two-ballot” election in which Party candidates must receive at least a 50percent approval rating by the villagers in a “confidence vote” (xinren-piao). The first round of popular voting for village Party secretaries washeld throughout Fujian Province in May 2000.133 Such experiments arebeing reported for other areas in China as well, in some cases with refer-ence to the “enlightening” example of the democratic election of VillagerCommittees.134

Village Elections in Legal Context

Analysts differ in their evaluation of the political significance of villageelections and whether they represent a true first step toward broader-


based democracy in China.135 As a legal matter, the legislation on villagercommittees is significant in several respects. These include its role in insti-tutionalizing VCs and their competitive, direct elections through a perma-nent law, serving as a model for further electoral reform and raising legalawareness and legal participation among China’s rural population, and thelegislative process through which it was developed and revised. All of thesedevelopments help to nurture an appreciation and practice of rule of lawthat is gradually spreading throughout China’s government, Party and so-cial structures.

Recent developments in democratization need to be measured againstChina’s historical context. China has no tradition of democracy or rule oflaw. After the overthrow of the Qing dynasty and establishment of the Re-public of China in 1911, the central government introduced limiteddemocracy and sporadically held elections. After the Republic of China’s1949 removal to Taiwan, the Guomindang leadership introduced a “top-down guided democracy” in the 1950s and a “bottom-up democraticprocess” that ultimately converged and led to Taiwan’s democratization inthe 1990s.136 On the mainland, only in recent years have Chinese citizensbegun to participate in regularly scheduled and increasingly open, com-petitive elections.

Article 111 of the 1982 Constitution for the first time gave constitu-tional status to the concept of village, as well as urban neighborhood, self-governance with elected leaders. This was an example of the law trulyleading practice and introducing new, rather than codifying existing, prac-tices. The development over the last nearly 20 years of the national andlocal legal framework for VC elections has continued to advance democra-tic practices and legal education in the countryside.

Moreover, the adoption of the 1998 VC Law, after some 10 years ofexperimentation under trial legislation and thorough debate by thehighest legislative authority in China, made permanent the institutionof direct and competitive VC elections. Procedures for the election ofVillager Committees are becoming more comprehensive, competitiveand standardized throughout the provinces. The 1998 VC Law setsforth fundamental elements of democratic electoral procedures, includ-ing multiple candidates, secret ballots, public count, immediate an-nouncement of election results and recall procedures, as well as othermeasures on transparency and accountability that help ensure democ-ratic villager self-government, all of which represent advances over theTrial VC Law, and set a high standard for VC election practice


throughout China and electoral practices in other types of Chineseelections.

Official statistics estimate that VCs, which numbered 732,000 at the endof 2000,137 have been established in most of China’s villages, composed ofover three million VC members, with Villager Assemblies or Villager Rep-resentative Assemblies functioning in roughly 85 percent as of the end of2001.138 In many of these places, villagers have gone through as many asfour, five, six and even seven rounds of regularly scheduled elections.139

Election preparation includes extensive education of the voters on theprovisions of the VC Law and local implementing measures and of theirrights under that legislation, as well as the importance of voting and usingthe secret ballot. Posters, newspaper articles, television programs, trainingsessions and other means are used by the government to publicize the VCLaw. Those with access to a computer have an unprecedented array of leg-islative and other materials on the VC Law and related legislation, as wellas relevant policy documents, available online.140

Many village voters are becoming accustomed to an orderly turnover ofcivic—if not strictly political—power, in which process they have the op-portunity to evaluate village officials and make changes when they havebeen unhappy with official performance. The simple fact of casting a se-cret ballot every three years, and witnessing the peaceful turnover of vil-lage civic power resulting from a public vote, create an expectation of theregular democratic evaluation of and change in village leadership. Thisprocess is surely promoting an important change in rural political/civicculture.

One of the main tasks of Villager Committees under both the Trial and1998 VC Laws is to educate the villagers on their rights and obligationsunder the law. Stories abound of villagers first learning of their rightsunder the VC Law and regulations and quickly grasping their utility ingetting rid of corrupt or incompetent village officials.141 Villagers have notbeen shy about petitioning high-level administrative authorities, takingtheir grievances over electoral fraud or irregularities to court, holdingdemonstrations and complaining to the press, citing relevant provisions ofthe VC Law. Villagers have also utilized the recall provisions of the VCLaw. Those in a village outside Harbin, Heilongjiang Province, for exam-ple, initiated one of the first reported cases of recall of a VC chair, inMarch 1999.142 That chairperson had been the sole nominee, put forwardby the township Party secretary, for election in 1996. After the governmentbegan forcibly buying up their land to build levees against recurring


floods in 1998, the villagers pressed for financial transparency and an ac-counting and discovered that the chairperson had received more than anyother villager for his land. After organizing study sessions on the VC Law,they collected signatures and filed a recall petition with the township toremove the VC chair, following stipulated procedures. A sympathetictownship Party secretary championed the petition and the offendingchairperson was recalled. NPC officials praised the case, declaring that re-call was the highest form of the right to supervise.143

Villagers are also learning about good governance in accordance withlaw, including participation in formulating village conventions and self-government charters that lay down the rules for handling a variety of vil-lage matters, as well as setting forth the tasks and responsibilities, and re-muneration, of the Villager Committees.144 Some villages have evenstarted entering into contracts with successful candidates to ensure theyfulfill their campaign promises, posting the agreements on the village bul-letin board.145 Such contracts represent in concrete form the emerginghorizontal relationship between elected village leaders and their con-stituents.

To be sure, abuses continue, and enforcement of the VC Law remains aweak link. Nonetheless, villagers are clearly increasingly aware of theirrights and are seeking redress under the law. Rising legal awareness, rightsconsciousness and activism, holding village and higher-level officials ac-countable for failure to follow the law and an emphasis under the VC Lawon village administration in accordance with the law, are helping to lay afoundation for establishing institutionalized rule of law in the country-side.

Implementation and revision of the Trial VC Law were also significantin terms of process. Like much economic legislation of the 1980s,146 theTrial VC Law was adopted after local experimentation and, in someprovinces, local regulation had provided some relevant details to the gen-eral provisions of Article 111 of the 1982 Constitution. The VC Law wasfirst approved on a trial basis, and experimentation was carried out in des-ignated demonstration counties and villages to develop effective practicesthat would be codified in permanent legislation. Steps were then taken, onschedule, to make the trial law permanent after several years of implemen-tation.

In a sign of increasing legislative transparency, a draft of the revised VCLaw was published in the press in 1998 for widespread comment, still anunusual legislative event in China but one which is occurring more fre-


quently with legislation thought to be of concern to broad cross-sectionsof the people. Multiple revisions were made with input from all provinces,autonomous regions and centrally-administered municipalities, as well assome 20 central government departments, before its final adoption. In theprocess, villagers and others were encouraged to write letters and maketheir views known, generating 541 letters to the NPC Internal and JudicialAffairs Committee, over half of which were from peasants and village offi-cials.147 Official commentary referred to “allowing the people to take partin the legislative process” as one of the special features of villager self-rule.148 This complex and multi-faceted legislative process reveals a seri-ousness of intent and consensus-building effort behind enactment of the1998 VC Law that should help bolster its credibility and aid in its imple-mentation.

Moreover, the NPC continues to monitor implementation of and prob-lems arising under the VC Law, evidencing the degree of importance at-tached to the law. The NPC Standing Committee organized an InspectionTeam on the Enforcement of the Organic Law on Villagers Committees inMay 2001. The team observed VC term elections and investigated the situ-ation in Jilin, Shandong, Fujian, Hainan and Xinjiang.149 The team com-pleted its inspections by the end of June and issued a report in August2001.150

The development over the past two decades of China’s VC elections andthe VC Law is, moreover, not an isolated phenomenon. While devised bythe Party to prevent recurrence of the destructive political excesses of theCultural Revolution, to bolster the Party’s credibility and to improveParty-citizen relations, the development of democracy and rule of law arealso part of a series of broader reforms in support of China’s economicmodernization program. Complementary legal developments, such aspromulgation of the Administrative Litigation Law in 1989 that allows cit-izens to sue administrative organs for not performing their duties, amend-ments to the Criminal Law strengthening the anti-corruption and abuseof power penalties and inclusion in the Constitution in 1999 of the princi-ple of ruling the country in accordance with law all buttress the establish-ment of rule of law and a legal framework in which the VC Law can bebetter enforced and strengthened.

The VC Law, in turn, is influencing other legislation such as that onurban Residents Committees or “communities,” and electoral practices inthe election of PC deputies, local officials at the township level and localParty cadres. These influences, as they become codified and further imple-


mented, may well continue to have an impact at higher levels and in otherareas of governance in China. The CommuniquÈ of the Fifth Plenum ofthe 15th Party Congress called in October 2000 for enhancing the democ-ratic political system and expanding citizens’ participation in political af-fairs in an orderly way.151 The Party further specified in its proposals forthe 10th Five-Year Plan (2001–2005) that “democratic elections, democra-tic decision-making, democratic management and democratic supervi-sion”—the “four democracies” of the 1998 VC Law—must be imple-mented across the country to guarantee that citizens enjoy broad rightsand freedoms and that human rights are respected and protected.152 Call-ing for further expansion of grassroots democracy, the Party also empha-sized implementation of openness or transparency (gongkai) in govern-ment affairs (zhengwu), factory affairs (changwu) and village affairs(cunwu).

Indeed, another positive outcome of the implementation of village self-governance that is relevant to rule of law is the campaign to introducegreater transparency not only in village affairs, but at all levels of govern-ment, starting especially at the township level where government officialsare responsible for overseeing and supporting the work of the VCs. TheApril 1998 Village Transparency Notice has been supplemented by variousorders, including the December 25, 2000, Circular Issued by the GeneralOffice under the CCP Central Committee and State Council General Of-fice on Implementing in an All-Around Manner the System of OpeningGovernment Affairs to the Public by Organs of State Power in Towns andTownships throughout the Nation.153 This circular, which emphasizespublication of all financial affairs and making it “convenient” for themasses to supervise the work of township governments, cites as its basisthe spirit of the 15th Party Congress on broadening democracy at thegrassroots level and guaranteeing direct exercise of democratic rights bythe masses, as well as the goal to promote the process of governing thecountry by law and strengthen supervision over the exercise of adminis-trative power. Townships are instructed to set up public bulletin boards,much as is done in villages, and use other means to communicate regu-larly with the residents, as well as to accept supervision of their work fromthe township people’s congresses. VC members, among others, are to siton a “small group for supervising the work of making government affairsopen to the public,” which is to schedule regular and periodic discussionswith the public on matters of concern. Significantly, the Circular calls ontownships to publicize government affairs in advance, before a formal de-


cision is reached, a major improvement in the way rules and policies aredetermined and one that accords with basic principles of administrativelaw and China’s agreements in respect of joining the World Trade Organi-zation (WTO).

Further, the Circular instructs Party and government authorities at thecounty level and above to explore means of implementing an open systemthemselves, and gradually to introduce such a system. The Party decided,as part of a call to open up democratic channels, to start implementingnationwide in the year 2002 the system of openness in government affairs(gongkai zhengwu) at the county level and, where conditions are right, inselected prefectures and municipalities.154

These and related moves to increase government and legal transparencyare not only important for promoting official accountability and govern-ment in accordance with law, but also bode well for creation of a climatethat is conducive to China’s compliance with its WTO transparency andrule of law obligations.

Improving the VC Law

Two major legal weaknesses in the Villager Committee election regime re-main: (1) the absence of clear enforcement provisions, and (2) the needfor nationwide standardization of basic VC electoral procedures.

The ability to enforce the VC Law is critical to its ultimate credibility.Villagers may well lose interest in and enthusiasm for VC elections andself-governance if they see over time that there is no effective means tocurb illegal interference in those matters and other violations of the law.In such an event, the VC Law, intended as a boon to rural stability, couldend up generating further discontent, cynicism and instability.155 A provi-sion similar to Article 52 of the PC Electoral Law156 should be included inthe VC Law, making clear that administrative and criminal penalties are tobe imposed for violation of the VC Law, and the Criminal Law provisionsapplicable to abuses in people’s congress deputy elections157 ought to beextended to Villager Committee elections, or similar provisions adopted ata national level. The MCA or other authorities should, furthermore, beauthorized to impose fines and other administrative sanctions for non-criminal actions that undermine the VC Law.

A further suggestion relevant to enforcement is to establish impartial,standing county-level election commissions that would handle complaints


and questions that arise between VC elections, including questions relat-ing to recall and issues of abuse of VC office, as well as to hear complaintsrelating to VC election irregularities.158 Under the current system, villagersare directed to take election-related complaints either to the townshipgovernment (which is often the source of the problem) or township PCs,or to the county-level government or PC, and complaints about failure topublicize required information about village affairs to the township orcounty-level governments. The people’s congresses at all levels are taskedwith supervising implementation of the VC Law generally. The practicalissue is that no one body is clearly designated to hear and resolve VC- re-lated complaints, and the temptation is to “pass the buck” to other agen-cies, which are also reluctant to deal with the issues, lacking clear authorityand guidelines.

On the question of standardization, further details on such importantelements of democratic elections as open and individual nominations, se-lection of official candidates through primaries rather than the traditional“fermentation” method of consultation, use of proxies and roving ballotboxes and the like should be regulated on a national level, while still allow-ing room for regional and local flexibility within the basic principles.Again, the PC Election Law can serve as a model. Its companion legisla-tion is the Local PC and Government Law, an organic law comparable tothe VC Law. The Local PC and Government Law, like the VC Law, containsgeneral stipulations on elections. However, unlike the case of the VC Law,those stipulations are spelled out in more detail in the PC Electoral Law.159

Given the importance ascribed to VC elections and their stabilizing impactby the Chinese government, it would make sense for the NPC to promul-gate a more detailed, comprehensive Electoral Law for Villager Commit-tees, or nationwide implementing electoral regulations (tiaoli), that wouldbe binding on all organizations and individuals and more clearly enforce-able in China’s courts.

Provinces, autonomous regions and centrally-administered municipal-ities, as well as local governments below the provincial level, would still befree to stipulate further details to take account of local conditions, butwithin the electoral framework provided by the center to eliminate prac-tices that might undermine the national goal of direct, open and compet-itive elections. It is not clear why implementing measures under the 1998VC Law is left primarily to local discretion, given the importance to estab-lishing the credibility of basic-level democracy of having “up-to-stan-dard” elections and enforcement mechanisms. Many materials compiled


by Chinese government agencies call for the NPC Standing Committee,the State Council or the MCA to formulate standard implementing mea-sures, especially electoral measures, to better guide the localities.160 Na-tional procedures or guidelines (guicheng) have been formulated by theMCA based on provincial experience to date161 and are useful in helpingto standardize “best practices,” but do not carry the authoritative weightthat would a national law or regulation.

Conclusion

Electoral democracy and self-governance at the village level may wellprove to be, as the Communist Party claims, “a great creation of the farm-ers led by the Party” to build “socialist democracy with Chinese character-istics.”162 The adoption of the permanent 1998 VC Law, fulfilling thepromise of the groundbreaking constitutional provisions for village self-governance, marks the true institutionalization of the village democracyexperiment. Villagers are increasingly learning about electoral democracyand proper legal procedures under the VC Law, as well as beginning to usethe Law to assert their rights. As Politburo member and NPC StandingCommittee Vice Chairman Jiang Chunyun put it, “villager self-rule is auniversity education in socialist democracy and legal system. . . . Democ-racy and the legal system are . . . preconditions for each other and promoteeach other.”163

Just as the path-breaking economic reforms initiated in the late 1970sby peasants in Xiaogang Village, Anhui Province attracted and benefitedfrom central policy support, so the legal challenges for strengthening vil-lage electoral democracy now require clear and strong central, as well aslocal, government policy support to vigorously implement the 1998 VCLaw. Nationwide standardization of the basic procedures of the VillagerCommittee electoral and self-governance system throughout China’s730,000 villages, and the provision of clear enforcement mechanisms toensure effective villager self-rule in accordance with law, will not only bol-ster the legitimacy of the VC Law itself but also enhance the developmentof rule of law more broadly.

Chinese officials speak of the VC Law as an important part of the coun-try’s strategy to establish rule of law.164 While developing sound legalcodes and building independent institutions to implement and enforcethose laws are critical to establishing rule of law, so is nurturing a society


that is guided by legal rules and principles, and understands its rights andresponsibilities under the law. The introduction of democratic elections,self-governance and transparency in financial and administrative affairs inthe villages, with mechanisms to enforce accountability through recall andregularly-scheduled term elections, as well as through legal and adminis-trative remedies, are significant building blocks for the spread of democ-racy, government accountability and rule of law to higher levels and othersectors of Chinese society.

I would like to thank the following friends and colleagues for their helpfulcomments on various drafts of this paper, although I of course take ulti-mate and sole responsibility for the contents: Jerome A. Cohen, Alison W.Conner, Natalie Lichtenstein, Henriette Nygaard Rasmusen, James R.Robinson and Daniel Tretiak. I also wish especially to thank Charles E.Costello and Dr. Yawei Liu of the Carter Center for permitting me to par-ticipate in their China Village Election Project, through which I havelearned first-hand much about the development of electoral democracy,villager self-governance and the development of rule of law in China, andWendy I. Zeldin, Senior Legal Research Analyst for China of the Library ofCongress, for her assistance and interest.

n o t e s

1. Li Du, The Practice of Rural Grassroots Democracy, in PEOPLE’S DAILY, Oc-tober 21, 1998; translated in FBIS-CHI-98–304, October 31, 1998 [hereafter Prac-tice of Rural Democracy].

2. Premier Zhu Rongji, Report on the Outline of the Tenth Five-Year Plan forNational Economy and Social Development, delivered to the Fourth Session of theNinth National People’s Congress, March 5, 2001, PEOPLE’S DAILY ONLINE,http://english.peopledaily.com.cn/features/lianghui/zhu10.html.

3. Text of Zhu’s press conference of March 20, 2000, is online athttp://www.peopledaily.com.cn/english/features/npc/2000032000N153 .html; see,also, Zhu Says the Sooner China Democratizes the Better, INSIDE CHINA TODAY,March 22, 2000, http://www.insidechina.com/news.

4. Somewhat confusingly, the term “grassroots” (jiceng, also translated as“basic-level”) is also applied to the township level, which is the basic level of theformal government structure.

5. Constitution of the People’s Republic of China, adopted on December 4,1982, by the Fifth Session of the Fifth National People’s Congress, an English


translation of which is in LAWS OF THE PEOPLE’S REPUBLIC OF CHINA(1979–1982) at 28 (Legislative Affairs Commission of the PRC, 1987) [hereafterLAWS 1979–1982] and, as revised as of 1993 is at http://www.qis.net/chinalaw/prcon5htm. The Chinese text is in ZHONGHUA RENMIN GONGHEGUOFALU QUANSHU [COMPLETE COLLECTION OF THE LAWS OF THE PEO-PLE’S REPUBLIC OF CHINA], Vol. 1, at 3, 14 (Wang Huian, Gu Ming, Lin Junand Sun Wanzhong, eds., 1989) [hereafter 1 COMPLETE COLLECTION].

6. The 1949 Common Program of the Chinese People’s Political ConsultativeConference set forth the basic principles that people of the PRC have the right toelect and be elected, state power belongs to the people and people’s congresses atall levels shall be popularly elected by universal franchise, while the people’s gov-ernments shall be elected by the people’s congresses at their respective levels. Theonly reference to villagers was in Article 27 on agrarian reform, which stipulatedthat peasant organizations needed to be established to put into effect the “land tothe tiller” program. A. P. BLAUSTEIN, FUNDAMENTAL LEGAL DOCUMENTSOF COMMUNIST CHINA 34 et seq. (1962) [hereafter LEGAL DOCUMENTS].This stipulation was elaborated in the 1950 Agrarian Reform Law of the PRC,which provided in Article 29 for limited- purpose township and village peasantsmeetings, peasant representative conferences and committees of elected peasants’associations to be the “legal executive organizations for reforming the agrariansystem.” LEGAL DOCUMENTS, at 287. The first PRC Constitution, adopted in1954, referred to the “people’s democratic system,” and Article 56 provided for di-rect elections by the voters to the township people’s congresses, but it did notmention the urban residents or villagers committees. LEGAL DOCUMENTS, at 3et seq. Implementation of the 1954 Constitution was interrupted by the Great Pro-letarian Cultural Revolution (1966–76), and gave rise to the so-called “Gang ofFour” Constitution of 1975 and an interim Constitution in 1978, neither of whichspoke of grassroots self-governance. Regulations on urban residents committeeswere, however, promulgated in 1954, early in the PRC’s legislative program. See,note 19 and text accompanying note 97, infra.

7. Brantly Womack, Electoral Reform in China, in CHINESE LAW AND GOV-ERNMENT, Vol. XV, No. 3–4, 1982–83, at 4 [hereafter Womack].

8. Chen Yizi, Decision Process behind the 1986–89 Political Reforms, in DECI-SION-MAKING IN DENG’S CHINA: PERSPECTIVES FROM INSIDERS at 133,135 (Carol Lee Hamrin and Suisheng Zhao, eds., 1995) [hereafter Chen Yizi].

9. Womack, at 3.10. Id., at 7. See, also, RUAN MING, DENG XIAOPING: CHRONICLE OF AN

EMPIRE at 88 (translated by N. Liu, P. Rand and L.R. Sullivan, 1992), where Mr.Ruan, a former Deputy Director of the Theoretical Research Department in theCentral Party School, describes those elections as the most democratic local elec-tions in post-1949 China, in which the people could freely nominate candidates—even ones not on the official lists—and, in some regions, open primaries were or-


ganized and candidates chosen by the local Party committees were defeated bycandidates freely chosen by the masses.

11. RESEARCH GROUP ON THE SYSTEM OF VILLAGE SELF-GOVERN-MENT IN CHINA AND CHINA RESEARCH SOCIETY OF BASIC-LEVEL GOV-ERNANCE, LEGAL SYSTEM OF VILLAGE COMMITTEES IN CHINA at 156(1995; in English and Chinese) [hereafter VC LEGAL SYSTEM]. China is dividedadministratively into provinces, municipalities and prefectures, counties andtownships and towns, with villages existing below the township level, which isconsidered the basic or primary level of formal government. See, also, HSIAOKUNG- CHUAN, RURAL CHINA: IMPERIAL CONTROLS IN THE NINE-TEENTH CENTURY, esp. 4–6 (1967) [hereafter HSIAO], describing the challengeof controlling the far-flung empire down to the scattered villages, leading to devel-opment, dating back to the Qin dynasty, of the principle of employing local in-habitants to implement sub-administrative control that survived to present times:“Thus, the headmen of the pao-chia (police) and li-chia (revenue collection) divi-sions and managers of the rural granaries were selected from the inhabitants ofthe villages or neighborhoods where these institutions were to operate. . . . The ad-vantages of such arrangements are obvious. On the one hand, the local inhabi-tants are more likely than government officials to know the conditions and per-sonalities of their own home places and were therefore in a better position to copewith local problems that might arise or at least to furnish information that thegovernment might desire. On the other hand, by drawing assistance from local in-habitants to implement control—by imposing upon some of them the responsi-bility to inform the government of misdeeds and wrongdoers—the villagers mightbe deterred from breaking the laws even where they were not directly under thewatchful eyes of officials.” At 6.

12. Wang Zhenyao, Chinese Village Autonomy: Present Status and FutureProspects, in VILLAGE ELECTIONS: DEMOCRACY IN RURAL CHINA—COM-MENTARIES at 197, 209 (Ministry of Civil Affairs, Division of Rural Work, De-partment of Basic-Level Governance, 1996); Jean C. Oi and Scott Rozelle, Electionsand Power: The Locus of Decision-Making in Chinese Villages, CHINA QUAR-TERLY, June 2000, 513, notes 2 and 6 [hereafter Oi and Rozelle]; see, also, note 6supra.

13. BAI GANG, REPORT ON IMPROVING THE LEGISLATION OF VIL-LAGERS’ SELF-GOVERNANCE 46 (Center for Public Policy Research of the Chi-nese Academy of Social Sciences Working Paper No. 971103, 1997; in Chinese andEnglish) [hereafter VC LEGISLATION REPORT]; Zhu Xinhua, Grassroots Democ-racy: A Reflection of Villagers’ Autonomy, in CHINESE POLITICS: FACING THEERA OF CHOOSING A NEW SYSTEM 361 (Dong Yuyu and Shi Binghai, eds.,1998) and LI XIUQIN AND WANG JIANHUA, BASIC-LEVEL GOVERNANCECONSTRUCTION OF CONTEMPORARY CHINA 81 (1995) [hereafter LI ANDWANG], both cited in Yawei Liu, Tracking China’s Rural Political Reform and Elec-


tions: A Brief Chronology (unpublished paper on file at The Carter Center, Atlanta,Georgia, 1999) [hereafter Chronology]. See, also, CHINA RURAL VILLAGERSSELF-GOVERNMENT RESEARCH GROUP AND CHINA RESEARCH SOCI-ETY OF BASIC-LEVEL GOVERNMENT, STUDY ON THE ELECTION OF VIL-LAGERS COMMITTEES IN RURAL CHINA 1 (1993; in English and Chinese)[hereafter VC ELECTION STUDY]; Amy B. Epstein, Village Elections in China: Ex-perimenting with Democracy, in U.S. CONGRESS, JOINT ECONOMIC COM-MITTEE, CHINA’S ECONOMIC FUTURE: CHALLENGES TO U.S. POLICY,403, 406, 1966 [hereafter Epstein]; and Kevin J. O’Brien and Liangjiang Li, Accom-modating “Democracy” in a One-Party State: Introducing Village Elections in China,CHINA QUARTERLY, June 2000, 465, 465–67 [hereafter O’Brien and Li (2000)].

14. As Prof. C.K. Hsiao notes of the imperial system, the “idea of local self-government was alien to the system of rural control. Any local initiative or com-munity life that was displayed in the villages was tolerated by the government ei-ther to facilitate control or because interference was deemed unnecessary. Villagesand clans and other rural groups were, in the eyes of the government, so manyconvenient points through which sub-administrative control might be extendedinto the countryside.” HSIAO at 7. After the overthrow of the Qing dynasty andestablishment of the Republic of China, the government introduced limiteddemocracy and sporadically held elections, but not until the 1982 Constitutionwas the concept of villager self- rule through elections and democratic adminis-tration legalized and institutionalized.

15. Zhongguo gongchangdang dishiyijie zhongyangweiyuanhui disanci quantihuiyi gongbao [CommuniquÈ of the Third Plenum of the 11th Meeting of theCentral Committee of the Chinese Communist Party], adopted December 22,1978, at http://www.chinarural.org/xjfg/qtfg/qt991213.html.

16. Cited in press conference by MCA Minister Duojie Cairang, RENMINRIBAO [PEOPLE’S DAILY], June 26, 1998, at 5.

17. Report on the Draft of the Revised Constitution of the People’s Republic ofChina, delivered by Peng Zhen, Vice Chairman of the Constitution Revision Com-mission, at the Fifth Session of the Fifth National People’s Congress on November26, 1982, in LAWS 1979–1982 at 397, 412. Peng Zhen further explained the intentof the revisions was to ensure “politically and organizationally that the whole peo-ple wield state power and are real masters of the country. According to this princi-ple, the main thing to do at the level of the central authorities is to strengthen theNational People’s Congress. . . . At the local levels, the main thing to do is tobroaden the democratic basis of organs of state power at various levels (includingthose at the grass-roots level) and, at the same time, extend their functions andpowers appropriately so that, under unified central leadership, the localities maycarry out their own development plans in light of their own conditions. The massorganizations of self-management in grass-roots community life ought to bestrengthened so that the people are mobilized to manage their own public affairs


and social services. Putting these provisions into practice will develop socialistdemocracy in China more fully.” Id., 412–13.

18. Id. Peng’s enthusiasm for villagers’ autonomy apparently dates back to hisexperiences in the Jin Cha Ji border area, where village elections were first held in1938. In 1941, Peng delivered a report on village elections in which he advised thatvillage representative congresses should be established to supervise village leaders.Liangjiang Li and Kevin J. O’Brien, The Struggle over Village Elections [hereafter Liand O’Brien (1999)], in THE PARADOX OF CHINA’S POST-MAO REFORMS129–44, esp. note 9 at 383 and sources cited therein (M. Goldman and R. MacFar-quhar, eds., 1999) [hereafter GOLDMAN AND MACFARQUHAR]; and O’Brienand Li (2000), at 468–69.

19. These Regulations provided that the residents committees (RCs) weremass organizations of self-governance, set forth various social service tasks andstipulated that RC members were to be elected by residents’ small groups. RC ex-penses were to be provided by the people’s committees of the provinces or munic-ipalities. Chengshi jumin weiyuanhui zuzhi tiaoli, adopted at the Fourth Session ofthe NPC Standing Committee on December 31, 1954, in 1 COMPLETE COLLEC-TION at 56.

20. VC LEGAL SYSTEM at 18.21. O’Brien and Li (2000), at 472; Robert A. Pastor and Qingshan Tan, The

Meaning of China’s Village Elections, CHINA QUARTERLY, June 2000, 490, 500[hereafter Pastor and Tan].

22. SHIH WEIMIN, GONGXUAN YU ZHIXUAN: XIANGZHEN RENDAXUANJU ZHIDU YANJIU [PUBLIC ELECTIONS AND DIRECT ELECTIONS:RESEARCH ON THE ELECTION SYSTEM FOR TOWNSHIP AND TOWNPEOPLE’S CONGRESSES] 24 (2000) [hereafter SHIH].

23. VC ELECTIONS STUDY at 1.24. Epstein, at 404; Li and O’Brien (1999), at 131–32; preface to CUNMIN

WEIYUANHUI ZUZHIFA XUEXI DUBEN [STUDY READER ON THE OR-GANIC LAW OF VILLAGERS COMMITTEES] (Quanguo Renda ChangweihuiFazhi Gongzuo Weiyuanhui Guojia Xingzhengfashi, Guowuyuan Fazhi Bangong-shi Zhengfa Laodong Shehuibaojiang Fazhisi, and Minzhengbu Jiceng Zhengquanhe Shequ Jianshesi [State and Administrative Law Section of the Legal AffairsCommittee of the National People’s Congress Standing Committee, Departmentof the Legal System for Labor and Social Security of the Legal System Affairs Of-fice of the State Council, and Department of Basic-Level Government and Com-munity Development, Ministry of Civil Affairs], eds., 1998) [hereafter VCREADER]; Daniel Kelliher, The Chinese Debate over Village Self-Government,CHINA JOURNAL, No. 37, January 1997, at 81; and Jude Howell, Prospects forVillage Self-Governance in China, JOURNAL OF PEASANT STUDIES, Vol. 25, No.3, 1998, at 91. For a recent review of the benefits of villager self-rule, as well as anexposition of the arguments against, see Jiang Chunyun, Do Well the Matter of Pri-


mary Importance Which Allows 900 Million Peasants to Become Masters of TheirOwn Affairs, BEIJING RENMIN RIBAO in Chinese, in FBIS, Article ID:FTS19990318000285, March 3, 1999.

25. For a discussion of the drafting process, see VC LEGAL SYSTEM at 18–30,and K. J. O’Brien, Implementing Political Reform in China’s Villages, AUSTRAL. J.OF CHINESE AFFAIRS, Issue 32, 1994, at 33 [hereafter O’Brien (1994)].

26. Chen Yizi at 142–50.27. On Peng’s role in passage of the Trial VC Law, see Li and O’Brien (1999), at

131–33, and O’Brien and Li (2000), at 467–75.28. VC LEGAL SYSTEM at 23.29. An English translation of the Trial VC Law is in VC LEGAL SYSTEM at

33–34, and in LAWS OF THE PEOPLE’S REPUBLIC OF CHINA (1987–89) 63(Legislative Affairs Commission of the People’s Republic of China, ed., 1990)[hereafter LAWS 1987–89]. The Chinese text is in 1 COMPLETE LAWS at 58.

30. O’Brien and Li report that VCs typically replaced production teams inYunnan and Guangdong Provinces, and brigades in all other places. O’Brien andLi (2000), at 470–71. See, also, RESEARCH GROUP ON THE SYSTEM OF VIL-LAGE SELF-GOVERNMENT IN RURAL CHINA AND CHINA RESEARCH SO-CIETY OF BASIC-LEVEL GOVERNANCE, THE REPORT ON VILLAGERS’REPRESENTATIVE ASSEMBLIES IN CHINA 2 (1994) (in English and Chinese)[hereafter VRA REPORT].

31. The Trial VC Law does not contain any detailed stipulations on what anappropriate proportion of women might be. During the 1995 round of VC elec-tions, the number of women elected dropped sharply and some committees hadno female members at all. VC LEGISLATION REPORT at 102. In some parts ofChina, one woman is frequently elected to VC membership to be responsible forso-called women’s issues like family planning, care for the elderly, etc., but veryfew women are elected VC chair due to continued traditional attitudes toward therole of women and the relatively low educational level and community participa-tion of many rural women. VC ELECTION STUDY at 108–11. One small sampletaken in 3,264 villages in nine counties in three provinces between 1996 and 1998revealed that less than 1 percent of elected VC chairs were women. Department ofBasic-Level Government, Ministry of Civil Affairs, Report on the Evaluation of thePilot Project in Nine Counties among Three Provinces, Table 13 (Sex, Political Statusand Incumbent Status of Elected VC Chairs) and commentary thereon, October1999, online at http://www.cartercenter.org/CHINA/dox/reports/pilot.html. Year2000 statistics show that only 15.7 percent of all VC members nationwide are fe-male. Recent Statistics on China’s Basic-Level Governance, report online athttp://www.cartercenter.org/CHINA/dox/reports/statistics.html. During VC elec-tion observations in Hebei Province in January 2000, the author was told by aprovincial official that not only are there cases where women are elected to the VCchairmanship (see, e.g., Direct Election of Township Deputies, BEIJING REVIEW


20, 22, March 17–23, 1997, describing an election in which a female VC chairmanwon election as a Township People’s Congress deputy in December 1996), onsome VCs all the members are women. However, it is also the case that many VCsboast no female representation at all. In none of the three elections the author ob-served in Fujian in August 2000 was a single female nominated, let alone elected tothe VC. Most provincial and lower-level implementing regulations also contain nostipulations on point.

By way of comparison, China’s Election Law for the National People’s Congressand Local People’s Congresses at All Levels (the PC Election Law) in Article 6, alsostipulates there should be an “appropriate number” of women deputies to theNPC and local PCs at all levels, adding that the percentage of women deputiesshould be gradually increased. Interestingly, this provision on women’s participa-tion was not added to the PC Election Law until 1995, eight years after the TrialVC Law was adopted. The English version of the PC Election Law, as amended inFebruary 1995, is found at http://www.cartercenter.org/CHINA/dox/laws/elec-tion.html; the Chinese text is found in ZHONGHUA RENMIN GONGHEGUOFALU QUANSHU [COMPLETE COLLECTION OF THE LAWS OF THE PEO-PLE’S REPUBLIC OF CHINA], Vol. 6, 39 (Wang Huian, Gu Ming, Lin Jun andSun Wanzhong, Tang Dehua and Qiao Xiaoyang, eds., 1995) [hereafter 6 COM-PLETE COLLECTION]. In practice, women’s participation seems to have some-times been required by Party and government policy, as reflected for example in a1992 circular issued jointly by the Sichuan Provincial Women’s Association andCivil Affairs Bureau, pointing out that the Party and government leading body atthe county level must have at least one woman member, and the standing com-mittee of the county people’s congress should in general have one woman vicechairman. Similarly, the circular stipulates that villager (and urban residents)committees should in general have at least one woman member, who, the circularmagnanimously adds, can serve as committee vice chairman if qualified. VCELECTION STUDY at 74 (in Chinese), 109 (in English), Box 7.2. The MCA is-sued some opinions in 1999 on how to protect and strengthen the participation ofwomen in VC work, primarily through propaganda, identification and recruit-ment combined with training and, when appropriate, making clear on ballots anylocally-set quota for the number of women to be elected. Minzhengbu guanyu nulibaozheng nongcun funu zai cunweihui chengyuanzhong you shidang ming’e de yi-jian [MCA Opinions on Making Great Efforts to Ensure an Appropriate Numberof Rural Women among Villager Committee Members], Minfa (1999) No. 14, inXIANGZHEN LUNTAN ZAZHISHE HE MINZHENGBU JICENGZHENGQUAN HE SHEQU JIANSHESI NONGCUNCHU, 1999 NIANDUNONGCUN JICENG MINZHU ZHENGZHI JIANSHE CILIAO HUIBIAN [1999ANNUAL COLLECTION OF MATERIALS ON THE CONSTRUCTION OFRURAL BASIC-LEVEL GOVERNMENT] 470–71 [hereafter 1999 RURAL GOV-ERNANCE].


32. See citations at note 5, supra. Article 34 has stayed virtually the samethrough three revisions, in 1988, 1993 and 1999.

33. VRA REPORT at 2.34. Local people’s congresses are designated as “organs of local government

power” in Article 4 of the Organic Law of the PRC on Local People’s Congressesand Local Governments (hereinafter the Local PC and Government Law), whilelocal governments are the “executive organs” of the PCs at the same level, and ad-ministrative organs of the state at the local levels. Id., Art. 54. The Chinese text ofthe Local PC and Government Law as last amended in 1995 is at 6 COMPLETECOLLECTION at 7, 8; an English translation by FBIS is available online at TheCarter Center website: http://www.cartercenter.org/CHINA/dox/laws/local.html.

35. On these village self-governance documents, see VC LEGISLATION RE-PORT at 68–70, which also reports that approximately 60 percent of the 928,000villages at the end of 1997 had village pledges (cunmin yue) and charters(zhangcheng), although not more than 20 percent of the villages had well- consti-tuted and standard documents. See, also, VC LEGAL SYSTEM, Chapter 5.

36. This delegation of authority to the provincial-level authorities to draft im-plementing legislation for national-level laws in light of local circumstances isconsistent with Article 100 of the Constitution and Articles 7 and 60 of the LocalPC and Government Law, note 34 supra. It is now also formally authorized by Ar-ticles 63 and 64 of the Legislation Law of the People’s Republic of China, adoptedby the Third Session of the Ninth National People’s Congress on March 15, 2000,available online in Chinese at http://www.peopledaily.com.cn/200003/15/C108.html.

37. VC LEGAL SYSTEM, Chapter Four.38. Jorgen Elklit, The Chinese Village Committee Electoral System, in CHINA

INFORMATION 1, 2, 1977; VC LEGAL SYSTEM at 53–56.39. NONGCUN JICENG ZHENGQUAN JIANSHE FAZHI JIAOCHENG

[LECTURES ON THE ESTABLISHMENT OF THE LEGAL SYSTEM FORRURAL BASIC-LEVEL GOVERNANCE] 19 (Minzhengbu Jiceng ZhengquanJianshesi [Department of Basic-Level Governance Construction of the Ministry ofCivil Affairs], eds., 1998) [hereafter LECTURES]. The provincial people’s con-gresses of Fujian, Jiangsu, Liaoning, Guizhou, Hebei and Hunan Provinces alsoadopted separate electoral measures for VC elections, while the provincial civil af-fairs department of Shaanxi Province issued trial electoral measures, which hadthe status of administrative regulations. Id. at 56.

40. VC LEGISLATION REPORT at 55.41. Wang Leiming and Xu Jiangshan, Advance on the Path of Democracy and

Rule of Law—Commentary Commemorating the 80th Anniversary of the MayFourth Movement, BEIJING XINHUA DOMESTIC SERVICE in Chinese, trans-lated in FBIS, Article ID: FTS19990429001324, April 29, 1999 [hereafter Advanceon the Path of Democracy and Rule of Law].


42. VC LEGAL SYSTEM at 3; VC LEGISLATION REPORT at 55.43. VC LEGISLATION REPORT at 72–73; citations for the PC Election law

are at note 31, supra.44. Pastor and Tan, at 491.45. See, e.g., O’Brien (1994), at 41–42; VC ELECTION STUDY at 1, in which

the authors note that the MCA issued in September 1990 a Circular on LaunchingTest-Sites for Villager Self- Governance Demonstration, in which, for example, thepractice of setting up Villager Representative Assemblies in localities where fre-quently convening the entire Villagers Assembly might prove too cumbersome,was authorized for the first time. A second MCA circular issued on December 8,1994, established Provisional Guiding Principles on the Demonstration Activitiesof Self- Governance by Villagers, which emphasized the goal to establish a systemof open management of village affairs under the villagers’ supervision. VC LEGIS-LATION REPORT at 90. The author of the VC LEGISLATION REPORT puts thenumber of demonstration counties with well-established implementing measureson self-governance as of the end of 1997 at around 200, or just under 10 percentof the 2,141, counties (including county-level municipalities) in China. Id. at 64.

46. ZHONGHUA RENMIN GONGEHEGUO CUNMIN WEIYUANHUI XU-ANJU GUICHENG [GUIDELINES FOR VILLAGER COMMITTEE ELECTIONSIN THE PEOPLE’S REPUBLIC OF CHINA] (Minzhengbu Jiceng ZhengquanJianshesi [Department of Basic-Level Governance Construction, Ministry of CivilAffairs], ed., 1996, 2nd rev. ed. 2001) [hereafter MCA Election Guidelines].

47. VC LEGAL SYSTEM at 40. For detailed descriptions of the investigationsand comparisons of local implementing measures and their implementation, seeVC LEGAL SYSTEM, esp. Chapters 3 and 4, and VC ELECTION STUDY. A firstdraft of the revised law apparently was submitted to the State Council as early asJuly 30, 1995, but it took almost three more years before final consideration began.VC LEGISLATION REPORT at 51.

48. An Explanation of the Organic Law on the Village Committee of the People’sRepublic of China (Revision Draft), June 22, 1998, translation on file with theCarter Center.

49. Id.50. PEOPLE’S DAILY, June 29, 1998, page 3, online (in Chinese) at

http://202.99.23.235/9806/29/current/newfiles/c1020.html; and Liu Siyang andWang Leiming, Adoption of Village Election Law Hailed, BEIJING XINHUA DO-MESTIC SERVICE, November 6, 1998, in FBIS, Article ID: drchi1061998000960,November 6, 1998 [hereafter Village Election Law Hailed].

51. Issued on April 18, 1998, the Village Transparency Notice was publishedJune 11, 1998 in the PEOPLE’S DAILY, reprinted in Chinese in VC READER at192 and online at http://202.99.23.245/9806/11/current/newfiles/a1010.html. AnEnglish translation is available through FBIS, Article ID: drchi06111998000658,June 18, 1998.


52. SOUTH CHINA MORNING POST, June 26, 1998; RENMIN RIBAO[PEOPLE’S DAILY], June 26, 1998, at 5.

53. Chronology at 7; PEOPLE’S DAILY, June 26, 199854. Chronology at 7.55. Village Election Law Hailed, note 50 supra.56. The Chinese text of the 1998 Organic Law is available in ZHONGHUA

RENMIN GONGHEGUO FALU QUANSHU (1998) (9) [COMPLETE COLLEC-TION OF THE LAWS OF THE PEOPLE’S REPUBLIC OF CHINA], Vol. 9, 9(Wang Huian, Gu Ming, Zhu Mingshan, Sun Wanzhong, Tang Dehua and QiaoXiaoyang, eds., 1999) [hereafter 9 COMPLETE COLLECTION] and on the web-site of the Ministry of Civil Affairs at http://www.mca.gov.cn/laws/law7.html. Aninformal English translation thereof is available at http://www.cartercenter.org/CHINA/dox/laws/organic.html.

57. Lianjiang Li, The Two-Ballot System in Shanxi Province: Subjecting VillageParty Secretaries to a Popular Vote, CHINA JOURNAL 103, 105, 1999 [hereafterTwo-Ballot System].

58. Pastor and Tan, at 495.59. The so-called “Lishu model” is described in VC LEGISLATION REPORT

at 78–79.60. See, e.g., Article 12 of the Hebei Province Measures for the Election of Vil-

lager Committees, in Chinese at http://www.chinarural.org/fgzz.htm, an Englishtranslation of which is on the Carter Center website at http://www.cartercenter.org/CHINA/dox/laws/hebei.html, calling for direct nomination of candidates atopen, village-wide election meetings or through villager small groups, with the of-ficial candidates determined based on who received the most votes; and Arts.15–16 of the Fujian Province Measures for the Election of Villager Committees, inChinese at http://www.chinarural.org/fgzz.htm, and English translation online athttp://www.cartercenter.org/CHINA/dox/laws/fujian.html, calling for direct nom-ination of VC candidates by voters and a primary using secret ballots if more can-didates are nominated than are stipulated in the Measures (two in the case of thechair and vice chair and one to three more than the number of regular VC mem-ber positions to be elected).

61. See, e.g., Article 18 of the Hebei Province Measures for the Election of Vil-lager Committees, supra note 60.

62. This provision tracks Article 27 of the PC Election Law, supra note 31,which was amended in 1995 to shorten the 30–day period to 20 days for publiciz-ing voter registration lists.

63. By way of comparison, Article 44 of the PC Election Law, supra note 31,calls for 30 or more voters from constituencies that directly elect township andcounty PC deputies jointly to submit a written recall request with reasons in-cluded, and that law also requires more than 50 percent of the voters to vote infavor of recall, by means of secret ballot (Articles 46 and 47).


64. Statistics as of December 2001 in Guangxi banbu cunweihui zuzhifa shishibanfa [Shanxi Issues Measures Implementing the Organic Law on Villager Com-mittees], online at: http://www.chinarural.org/news/newl/news63.htm. Thesepost-1998 provincial implementing and electoral measures (banfa) can be found,in Chinese, on the Rural Governance website sponsored by the MCA jointly withthe Carter Center found at http://www.chinarural.org, under “local legislation” or“current news.” The VC measures of 26 provinces were posted on that website asof January 2002. English translations of some of these are posted at http://www.cartercenter.org/CHINA.

65. On the development of VRAs, see VRA REPORT, supra note 30; SusanLawrence, Democracy Chinese Style, AUSTRAL. J. OF CHINESE AFFAIRS, Issue32, July 1994, 61–68, recounting her fieldwork in Beiwang Village, Zhao County,Hebei Province in 1992 and 1994, and the institutional reforms that reportedlyenhanced political participation and accountability. The Beiwang VRA metmonthly, as opposed to the less frequent meeting schedules reported elsewhere inChina. See, also, Oi and Rozelle, at 515–22, detailing how VRAs replaced VAs inlarge villages during the period 1988–95 and discussing the position of VRAswithin the context of village power, based on information obtained prior to pas-sage and implementation of the 1998 VC Law. For an example of provincial ruleson VRAs, see those adopted by Jiangxi Province in April 2000 at http://www.chi-narural.org/news/2000/2000071401.htm.

66. See citations at note 31, supra. The PRC Constitution, supra note 5, setsforth, in Article 2, the fundamental principle that all power in the PRC belongs tothe people, and that the National People’s Congress (NPC) and the local people’scongresses (LPCs) are the organs through which the people exercise “state power.”Article 3 further stipulates that the NPC and LPCs are to be constituted throughdemocratic elections.

67. For background on China’s election laws see Xiao Weiyun, The SocialistDemocratic Principles of Our Country’s Election Law, CHINESE LAW AND GOV-ERNMENT, Vol. XV, No. 3–4 (1982–83) at 60. For an English translation of the1953 Electoral Law of the PRC for the All-China People’s Congress and Local Peo-ple’s Congresses at All Levels, see LEGAL DOCUMENTS at 191.

68. Xiao Weiyun, supra note 67, at 70.69. The Chinese text of the original 1979 Electoral Law is in ZHONGHUA

RENMIN GONGHEGUO FALU HUIBIAN 1979–84 at 76–80 (Legislative AffairsCommission, ed., 1984).

70. Murray Scott Tanner, The National People’s Congress, in GOLDMAN ANDMACFARQUHAR, at 100, 121 [hereafter Tanner].

71. Id. at 119.72. See, e.g., Six Villagers Jailed for Exposing Election Rigging, HK INFORMA-

TION CENTRE OF HUMAN RIGHTS AND DEMOCRATIC MOVEMENT INCHINA (in Chinese), translated in FBIS, Document ID: FTS19990907000386,


September 4, 1999, reporting on protests by 150 villagers in Changsha over thesentencing of six villagers who, after a local people’s congress deputy election wasaborted due to a villager boycott over the selection of candidates by higher-levelauthorities, then discovered and seized 12 pre-stuffed ballot boxes in a secondelection. The six were sentenced for from one to two years for “hindering normalelections.”

73. See, e.g., Xuan ni jiu yao xiang xuanmin shuzhi wo wei xuanmin zuolexieshenma [We Elected You, Now I Must Report on What Work I Have Done forYou], BEIJING WANBAO [BEIJING EVENING NEWS], July 2, 2000, for a reporton the situation in Beijing’s Dongcheng District on implementation of 1995 regu-lations requiring municipal people’s congress deputies to report to and be evalu-ated by their constituents; Beijing to Improve Registration Process, in the CHINADAILY, April 22, 2000, online at http://www.chinadaily.com.cn/cndy/his-tory/2000/04/d2–1beij.422.ht ml. The Beijing government now carries informa-tion on PC elections on its website, http://www.beijing.gov.cn.

74. Top Legislator Urges to Improve Democracy, Legal System, April 18, 2000, athttp://www.chnlaw.com/news/shownews.asp?news.id=252.

75. The PCs are given supervisory powers over the governments at their corre-sponding levels, whose officials they elect, under Article 104 of the PRC Constitu-tion, supra note 5, as well as the authority to ensure observance of the Constitu-tion, laws and administrative regulations, under Article 99.

76. Wang Dun, Groundswell of Chinese Democracy, TAIPEI TIMES, May 26,2001, online at http://taipeitimes.com/news/2001/05/26/print/0000087357 [here-after Groundswell].

77. Id.78. Julie Chao, Chinese Congresses Refuse to Follow All Party Dictates, WASH-

INGTON TIMES, March 9, 2001, and Bruce Gilley, Power to the People, FAREASTERN ECONOMIC REPORT, November 8, 2001 [hereafter Power to the Peo-ple].

79. Minxin Pei, “Creeping Democratization” in China, J. OF DEMOCRACY,Vol. 6, No. 4, 1995, at 64, 71 [hereafter Creeping Democratization].

80. Groundswell, supra, note 76.81. Li Peng Visits Zhejiang, Comments on Formulating Supervision Law, BEI-

JING XINHUA DOMESTIC SERVICE in Chinese, April 12, 2001, translated inFBIS, Article ID: CPP20010412000147. The article reports that NPC deputies havesubmitted some 33 proposals for a Supervision Law since the Ninth NPC.

82. “We need to expand direct elections as soon as possible,” Wang Xiaolin, aresearcher at the Central Party School in Beijing, wrote in the June issue of Peo-ple’s Congress Research. “There is absolutely no grounds to say conditions are notripe for this.” Quoted in Power to the People, supra, note 78.

83. See examples set forth in Chapter 11 of VC ELECTION STUDY, includingunjustified delay in holding new elections, interference in the nomination process


by “election leading bodies” and the Party, arbitrary changes in election proce-dures, vote-buying and bribery, refusal to recognize the validity of election resultsby township authorities and the like. See, also, examples of election interferenceabout which the most complaints have been received from villagers, in Practice ofRural Democracy, supra note 1.

84. See, e.g., Village Election Frauds Reported, GUANGZHOU YANGCHENGWANBAO Internet version in Chinese, March 1, 1999, in FBIS, Document ID:FTS19990402001590, April 2, 1999; Shandong Arrest 4 Elected Village Cadres,HONG KONG INFORMATION CENTRE OF HUMAN RIGHTS AND DEMOC-RATIC MOVEMENT IN CHINA in Chinese, November 11, 1999, translated inFBIS, Document ID: FTS19991112000098, November 11, 1999; John Pomfret, InRural China, Democracy Not All It Seems, WASHINGTON POST, August 25, 2000,contrasting recent well-run, open elections in Fujian Province with continued in-terference in local elections by higher-level Party and government authorities inHebei Province; Yawei Liu, Consequences of Villager Committee Elections in China:Better Local Governance or More Consolidation of State Power? CHINA PERSPEC-TIVE, No. 31 (Sept.–Oct. 2000), 19 [hereafter Consequences of VC Elections], on-line at http://www.cartercenter.org/CHINA/dox/reports/yaweiarticle.html; andVillagers Have Their Say in Local Election, CHINA DAILY, March 31, 2001, report-ing that a VC election held near the Great Wall outside Beijing was overturnedafter one of the losers complained to the village Party secretary that three relativesof the winner served on the Villager Election Committee in violation of regula-tions.

85. See, e.g., example of recall from Beilian Village in Zhejiang Province inearly 1999, cited in Wang Leiming and Xu Jiangshan, Advance on the Path ofDemocracy and Rule of Law, supra note 41; Zhejiang Farmers Sack Village Chief,BEIJING XINHUA in English, June 11, 1999, in FBIS, Article ID:FTS1999061100388, June 11, 1999 (story of the “sacking” of the VC chairman be-fore the end of his term, for misspending 660,000 yuan (about US$80,000) of vil-lage funds, in Liaodong Village near Wenzhou, Zhejiang Province); Hainan Vil-lagers Recall Officials, HAIKOU HAINAN RIBAO Internet Version in Chinese,May 3, 2000, in FBIS, Document ID: CPP20000503000007, May 3, 2000; WujianVillage Dismisses Village Officials, KUNMING YUNNAN RIBAO Internet Versionin Chinese March 30, 2000, in FBIS, Document ID: CPP2000422000041 [Reportson Village Democracy in PRC Provinces], April 22, 2000; and a case of recall of allfive VC members by a village outside Beijing in January 2002, reported on theChina Rural website, http://www.chinarural.org/news/new1/news76.htm andhttp://chinarural.org/news1/9/news12.htm.

86. Pastor and Tan, Table 2, at 504. That table also shows that roughly 80 per-cent of candidates elected to the VC chairmanship in the areas surveyed wereParty members.

87. On election fraud cases, see the reference (with no details) in David Zweig,


The “Externalities of Development”: Can New Political Institutions Manage RuralConflict? in CONTEMPORARY CHINESE SOCIETY: SOCIAL CONFLICT ANDPOPULAR PROTEST, (Elizabeth J. Perry and Mark Selden, eds., 2000) [hereafterExternalities of Development; citations are to pages of the unpublished paper onfile with the author], at 7; for the prosecution case, see Shanxi Village Official Pros-ecuted for Election Violation, BEIJING XINHUA in English, January 25, 1999, inFBIS, Article ID: drchi01251999001583, January 26, 1999. The official in questionreportedly also illegally appointed VC committee members after his election,rather than going through direct elections as required by law. The article does notsay on what basis he was prosecuted nor what the penalty was.

88. In terms of enforcement of the “democratic management” aspects of theVC Law, Article 22 provides that if a VC fails to promptly or accurately publicizeinformation required by the law to be made public, the villagers have the right toreport the failure to the higher-level government, which is to investigate and pub-licize its findings. If evidence of violation is verified, those involved are to bear un-specified “legal liability” (yifa chengdan ziren).

89. Discussion in Beijing, August 7, 2000.90. See note 31 supra, for citations to the PC Election Law. The full text of Ar-

ticle 52 reads: “In order to safeguard the freedom of voters and deputies to exer-cise their electoral rights and the right to stand for election, administrative orcriminal sanctions shall be taken against a person who commits the followingbreaches of the law: (1) Resorting to violence, intimidation, deception, bribery,and other illegal means to disrupt an election or prevent a voter from freely exer-cising his right to vote and right to stand for election; (2) Fabricating electoraldocuments, making false reports on the number of ballots, or committing otherbreaches of the law; (3) Suppressing or taking reprisals against those who registercomplaints or reports on breaches of the law or against those who demand the re-moval of a deputy.”

91. Criminal Law of the People’s Republic of China, adopted July 1, 1979, andamended March 14, 1997, an English translation of which, by Charles D. Paglee, isavailable online at http://www.qis.net/chinalaw/prclaw60.htm. The Chinese text isat ZHONGHUA RENMIN GONGHEGUO FALU QUANSHU (1996) (7) [COM-PLETE COLLECTION OF THE LAWS OF THE PEOPLE’S REPUBLIC OFCHINA], Vol. 7, at 29 (Wang Huian, Gu Ming, Zhu Mingshan, Sun Wanzhong,Tang Dehua and Qiao Shaoyang, eds., 1997).

92. VC ELECTION STUDY at 15, citing provisions in the laws as in effect in1993. The text of the 1986 Regulations on Public Security Management and Pun-ishment of Violations, as revised in 1994, is in ZHONGHUA RENMINGONGHEGUO FALU QUANSHU (1994) (5) [COMPLETE COLLECTION OFTHE LAWS OF THE PEOPLE’S REPUBLIC OF CHINA], Vol. 5, 830 (WangHuian, Gu Ming, Lin Jun, Sun Wanzhong, Tang Dehua and Qiao Xiaoyang, eds.,1995). The Public Security Bureau issued a notice dated June 28, 1999, on the


proper handling of incidents disrupting the proper exercise of villagers’ rightsunder the VC Law, Gonganbu guanyu tuoshan chuli cunmin weiyuanhui xuan-juzhong fashengde zhi’an wenti de tongzhi [Notice of the Public Security Bureau onHandling Well Public Order Problems Arising in the Course of Villager Commit-tee Elections], Gongtongzi [1999] No. 47, in 1999 RURAL GOVERNANCE 471.

93. Quanguo Renmindaibiao dahui changwu weiyuanhui guanyu “Zhonghuarenmin gongheguo xingfa” dijiushisantiao di’erkuan de jieyi [Interpretation ofClause 2 of Article 93 of the Criminal Law of the People’s Republic of China bythe Standing Committee of the National People’s Congress], adopted April 29,2000, at the Ninth Session of the 15th Meeting of the Standing Committee of theNPC, in Chinese, at http://www.chinalawinfo.com/newlaw/ShowContent.asp?ID=2069; and at http://www.chinarural.org/news/2000/2000062001.htm, with an ex-planation making clear that the intent of the interpretation is not to make mem-bers of VCs and other rural grassroots organizations be treated as state personnelexempt in limited circumstances. Article 93 of the Criminal Law provides that theterm “state personnel” as used in that law refers to all personnel of state organs. Itadds that personnel engaged in public service in state-owned corporations, enter-prises, institutions, and people’s organizations; and personnel which state organs,state-owned corporations, enterprises and institutions assigned to engage in pub-lic service in non-state- owned corporations, enterprises, institutions and socialorganizations; as well as other working personnel engaged in public service accordingto the law, are to be treated as state personnel [emphasis added]. VC members aredeemed to be covered in the limited circumstances described as “other workingpersonnel engaged in public service.”

94. The Chinese texts are found, respectively, at Xingzheng Susong Fa [Admin-istrative Litigation Law], adopted 1989, 1 COMPLETE COLLECTION 2125, andXingzheng Fuyi Fa [Administrative Reconsideration Law], promulgated April 29,1999, ZHONGHUA RENMIN GONGHEGUO FALU QUANSHU (1999) (10)[COMPLETE COLLECTION OF THE LAWS OF THE PEOPLE’S REPUBLIC OFCHINA], Vol. 10, 3043 (Wang Huian, Gu Ming, Zhu Mingshan, Sun Wanzhong,Tang Dehua and Qiao Xiaoyang, eds., 1999).

95. Villagers Call for Self-Rule, CHINA YOUTH DAILY, December 31, 1999;Kevin J. O’Brien and Liangjiang Li, Selective Policy Implementation in Rural China,COMPARATIVE POLITICS, at 167, 178 (1999); and Eric Eckholm, China’s Vil-lagers Vote, but Its Party Rules, NEW YORK TIMES, November 4, 2001, reportingon the mass resignation of 57 VC heads in Shandong Province in protest over con-tinued Party interference in villager affairs, as reported online in Chinese, Cun-guan weihe yao cizhi [Why Do Village Chiefs Want to Resign?”], at http://www.chi-narural.org/news/new/news17.htm.

96. Villagers Call for Self-Rule, supra, note 95, and provincial reports on VCelection related problems and the handling of complaints during 1999 compiledin Chapter 5 on Term Elections in 1999 RURAL GOVERNANCE.


97. The Chinese text is in ZHONGHUA RENMIN GONGHEGUO FALUQUANSHU (ZENGBUBEN) (1989) [COMPLETE COLLECTION OF THE LAWSOF THE PEOPLE’S REPUBLIC OF CHINA (SUPPLEMENT)], at 3 (WangHuian, Gu Ming, Lin Jun and Sun Wanzhong, eds.) and on the MCA website, athttp://www.mca.gov,cn/laws/law3.html. An English translation is in LAWS1987–89 at 329. This law has the dubious honor of being the first law in the NPC’shistory to be formally rejected by the NPC Standing Committee, in October 1989,after less than half its members voted for it. Creeping Democratization at 72.

98. See note 19 supra.99. See note 5 and accompanying text supra.100. See, e.g., the description of the origins and functions of the early Urban

Residents Committees in FRANZ SCHURMANN, IDEOLOGY AND ORGANI-ZATION IN COMMUNIST CHINA at 374–80 (2nd ed. 1971) [hereafter SCHUR-MANN].

101. Ba chengshi jumin weiyuanhui jianshe hao [Effectively Establish UrbanResidents Committees], editorial in PEOPLE’S DAILY, December 28, 1989, at 3.

102. 2000 Niandu minzheng shiye fazhan tongji gongbao [Year 2000 StatisticalReport on Civil Affairs Developments], giving the number of RCs and RC mem-bers, both of which numbers actually decreased from 1999 figures due to consoli-dation, online at http://www.mc.gov.cn/news/news2001041601.html [hereafter2000 MCA Statistical Report]; Information Office of the PRC State Council, Grass-roots-Level Elections in China (1997) [hereafter State Council Paper]; and Infor-mation Office of the PRC State Council, Progress in China’s Human Rights Causein 1996, online at http://www.peopledaily.com.cn/english/whitepaper/17.html(1997).

103. A caption to a picture in the CHINA DAILY of January 17, 2000, accom-panying an article on VC elections in Tangshan, explains the photo is of workersof the Caoyuan Neighborhood [Residents] Committee of Beixinqiao Sub-DistrictOffice of Beijing’s Dongcheng District, where the election for the RC was the “firstin Beijing held in accordance with the ‘Neighbourhood Committee Election Law.’”See, also, Erik Eckholm, China’s Neighborly Snoops Reinvent Themselves, NEWYORK TIMES, April 11, 2000, describing how the old “neighborhood committees”of the early years are being resuscitated in Shenyang and 19 other cities to involveurbanites in providing vital social services to themselves, as the former “workunit” system in which state enterprises and other employers used to provide theso-called “iron ricebowl,” wanes. See, also, John Pomfret, Chinese Tiptoe toward theVote, WASHINGTON POST, February 20, 2000 (also about neighborhood or resi-dents committee elections in Shenyang).

104. State Council Paper, supra note 102, at 2. Shanghai Municipality, for ex-ample, carried out the fifth round of RC elections in 1997, electing some 18,407members for its 3,361 RCs. Shanghai Government website, http://www.shanghai.gov.cn/chinese/k06_c.htm.


105. Discussions with MCA officials, Fujian and Beijing, August 2000. See,also, Committees Cultivate Grassroots Democracy, CHINA DAILY, August 29, 2000,describing progress under the RC Law and investigations by the NPC StandingCommittee to take place in September 2000 in Harbin and Benxi in NortheastChina, Shanghai and Nanjing in East China, Lanzhou and Urumqi in NorthwestChina and Kunming and Guiyang in Southwest China. At the end of 2000, theMCA issued a circular entitled “Opinion of the Ministry of Civil Affairs on Pro-moting the Building of Urban Communities,” in which it generically referred tothe need to expand democracy and promote resident self-management in urbancommunities in accordance with the four democracies of democratic elections,decision-making, management and supervision, as well as called for members ofcommunity Resident Committees to be democratically elected. BEIJING XIN-HUA DOMESTIC SERVICE, December 12, 2000, translated in FBIS, Article ID:CPP20001212000063.

106. Interestingly, neither does the RC Law contain a stipulation that womenshould be proportionately represented on the RCs, possibly because femalestended to dominate urban street committee and RC work. See, e.g., SCHUR-MANN at 377.

107. See Eckholm and Pomfret articles, supra note 103.108. We Choose Them; They Help Us, in CHINA DAILY, May 24, 2000, online

at http://www.chinadaily.com.cn/cndy/history/2000/05/d1–3vote.524.ht ml;Calum Macleod, China Introduces Some Democratic Elections, UPI, May 24, 2000.

109. We Choose Them, supra note 108.110. Macleod, supra note 108.111. Community Self-Governing Emerged, report on the China.org website at

http://www.china.org.cn/wcm/expe?infoid=502&lminfoid=29.112. Eckholm, supra note 103.113. Id.114. PRC’s Nanjing Locality Holds Residents’ Committee Elections, BEIJING

ZHONGGUO XINWEN SHE in Chinese, May 23, 2000, translated in FBIS, ArticleID: CPP20000523000122, May 23, 2000.

115. Articles 8 and 9. The citations for this law are at note 34 supra.116. See note 51 supra.117. Yawei Liu, The Buyun Election and Its Meaning, in The CARTER CEN-

TER, THE CARTER CENTER REPORT ON CHINESE ELECTIONS: OBSERVA-TIONS ON THE TOWNSHIP PEOPLE’S CONGRESS ELECTIONS JANUARY5–15, 1999 AND COOPERATIVE ACTIVITIES WITH THE MINISTRY OFCIVIL AFFAIRS AUGUST 1, 1998–JANUARY 15, 1999, and online athttp://www.cartercenter.org/CHINA/dox/reports/buyun.html [hereafter Buyun].See, also, SHIH, Chapter 15, and the book review by Jasper Becker, Book ShowsRural Election Experiments Catching On, SOUTH CHINA MORNING POST, Au-gust 8, 2000. See, also, LI FAN, SHOU HUIZHENG, PENG ZONGCHAO AND


XIAO LIHUI, CHUANGXIN YU FAZHAN—XIANGZHENZHANG XUANJUZHIDU GAIGE [INNOVATIONS AND DEVELOPMENT: REFORM OF THEELECTION SYSTEM FOR TOWNSHIP AND TOWN MAGISTRATES] 96–103,and Chapter 4 [hereafter INNOVATIONS AND DEVELOPMENT].

118. This account is taken from Buyun and SHIH, Chapter 17.119. The text of the Legal System Daily article is reprinted in 1999 RURAL

GOVERNANCE at 800–801.120. Translated in Buyun.121. Vivien Pik-kwan Chan, Directly Elected Township Chief Gets Thumbs Up,

SOUTH CHINA MORNING POST, June 21, 2000.122. See briefing by Professor Shi Weimin in The CARTER CENTER, THE

CARTER CENTER REPORT ON CHINESE ELECTIONS: OBSERVATIONS OFCHINESE VILLAGE ELECTIONS IN HEBEI PROVINCE JANUARY 4–13, 2000,at 34, 38, online at http://www.cartercenter.org/CHINA/dox/reports/2000.html;Shenzhen to Hold PRC’s First Direct Election of Town Head, GUANGZHOU NAN-FANG RIBAO in Chinese, translated in FBIS, Document ID: FTS19990429000095,April 28, 1999; and Further on First Shenzhen Town Head, HONGKONGZHONGGUO TONGXUN SHE in Chinese, translated in FBIS, Document ID:FTS19990430000665, April 30, 1999. See, also, SHIH, Chapter 16, 411–27, and IN-NOVATIONS AND DEVELOPMENT 91–96.

123. Article 22 of the Local PC and Government Law, supra note 34, providesthere generally should be more than one candidate for township officials but doespermit elections to be held when there is only one nominated candidate.

124. Yawei Liu, Guangxi Experiments with Public Selection of a Deputy Town-ship Magistrate, online at http://www.cartercenter.org/CHINA/dox/reports/guangxi.html.

125. Willy Wo-Lap Lam, Tentative Steps to Expand Elections, SOUTH CHINAMORNING POST, July 6, 2000, citing sources that an adviser to President JiangZemin had proposed upgrading and expanding elections to the township level bythe year 2003. While Jiang objected to the proposal he did not oppose conductingexperiments with elections up to the level of the township. Wei Jianxing, a mem-ber of the Standing Committee of the Politburo of the Communist Party, called inlate July 2000 for increased transparency in township government activities to en-sure the masses can supervise them. Wei Jianxin Urges to Boost Township- LevelDemocracy, CHINA DAILY, July 26, 2000.

126. Conversation with an NPC official responsible for local elections, Beijing,July 31, 2000.

127. Conversations with various officials in Beijing, September 2001; HenryChu, Cultivating Democracy, LOS ANGELES TIMES, January 27, 2002 [hereafterCultivating Democracy].

128. Cultivating Democracy.129. Two-Ballot System, at 107. The author notes the significance of the two-


ballot system is that, although villagers cannot guarantee that the Party memberwho wins the most popular votes will ultimately win election by the Party, at leastthey can prevent people they distrust from being nominated for Party secretary inthe first round. Id. at 109.

130. Li and O’Brien (1999), at 142.131. Josephine Ma, Township Election Hailed as Success, SOUTH CHINA

MORNING POST, June 14, 2000.132. Sichuan Achieves Results in Village Elections, CHENGDU SICHUAN

RIBAO Internet version in Chinese March 1, 1999, in FBIS, Document ID:FTS19990402001590, April 2, 1999, and Sichuansheng gongtui gongxuan cundan-gzhibu shuji [Sichuan Province’s Public Recommendation and Direct Election ofVillage Party Branch Secretaries], August 31, 1999, online at http://www.chi-narural.org/xjfg/dffg/sichuan/200001.htm.

133. Discussions with Fujian officials of the provincial Civil Affairs Bureauduring village election observations in August 2000 as a member of a delegationfrom the Carter Center, report at http://www.cartercenter.org/CHINA/dox/re-ports/2000.html.

134. Election Reform of Village Party Branches, SHANGHAI MINZU YUFAZHI in Chinese, July 21, 1999, at 34–35, translated in FBIS, Document ID:FTS1999119000114, July 21, 1999, reporting on a village “democratic evaluationand recommendation” system adopted by the Party in Fengyang County, AnhuiProvince, for selecting village Party branches in which candidates require the en-dorsement of at least half of the non-Party masses, obtained by having over 80percent of the non-Party villagers fill out anonymous evaluation forms. For exam-ple, in Fengyang County’s Shimin Village, Caodian Township, none of the originalParty branch members were found competent in a poll of the masses. Accordingly,the County Party Committee permitted the Party members to elect new staff di-rectly from among those recommended by the masses and Party members, amethod reported to have then been used in 43 of the 392 villages in the county.See, also, Shenzhen to Reform Grass-Roots Election System, SHENZHEN DAILY(Internet version) in English, in FBIS, Document ID: FTS19990522000042, re-porting on plans to introduce the two-ballot system for village Party branches inShenzhen.

135. Opinions range from a dismissal of Villager Committees as no more than“akin to the powerless tenants associations” in urban buildings, Qu Tao, GrassrootsDemocracy—Not All It Seems, CHINA PERSPECTIVE, No. 13, 1997, at 6, andcharacterizing village elections as little more than a means to increase mass sup-port for the Party and consolidate state control, O’Brien and Li (2000); to morecautiously positive assessments of VC elections and village autonomy as “creepingdemocracy,” Creeping Democratization, or having long-term potential to furtherdemocratic values and ideas in China, Jude Howell, Prospects for Village Self-Gov-ernance in China, J. OF PEASANT STUDIES, Vol. 25, No. 3, 1998, at 86–111, or


constituting an endogenous, incremental change in the nature of political interac-tion in China, Tianjian Shi, Village Committee Elections in China: InstitutionalistTactics for Democracy, WORLD POLITICS 51, 1999, 382–412.

136. L. Diamond and R.H. Myers, Introduction: Elections and Democracy inGreater China, CHINA QUARTERLY, June 2000, 365, 377–79. See, also, L. Chaoand R.H. Myers, How Elections Promoted Democracy in Taiwan under Martial Law,CHINA QUARTERLY, June 2000, 387–409.

137. 2000 MCA Statistical Report, supra note 102.138. MCA Minister Duojie Cairang, speech to the International Symposium

on Villager Self-Government and Rural Social Development in China, Beijing,China, September 3, 2001, summarized in The Carter Center report on the sym-posium carried online at http://wwww.cartercenter.org/CHINA/dox/reports/2001report.html.

139. The first round of elections under the 1998 VC Law were held by three-fourths of VCs throughout the country as of April 2001, with the remaining sixprovinces and municipalities scheduled to complete theirs by year-end. XINHUA,April 3, 2001, online at http://www.cartercenter.org/CHINA/dox/reports/guangxi.html (following the article by Dr. Yawei Liu on the Guangxi experiments, supranote 124.

140. In addition to the Carter Center website frequently referred to herein,materials relating to VC elections can be found in Chinese on the MCA, provincialand municipal government websites, on the joint Carter Center and MCA website,http://www.chinarural.org, and at the website of Beijing-based think tank Uniruleat http://www.univillage.org.

141. Li and O’Brien (1999), at 137–39; Externalities of Development at 9 and25.

142. This case is discussed in Consequences of VC Elections, supra note 84. See,also, the cases cited at note 85, supra.

143. Consequences of VC Elections, citing NANFANG ZHOUMOU [SOUTH-ERN WEEKEND], April 30, 1999.

144. Article 20 of the VC Law gives VAs the authority to formulate these infor-mal local rules. See note 35, supra, for a discussion of such documents under theTrial VC Law. Harold Brockman discusses these documents as a form of “socialcontract” at the local level in Village Compacts (Xiang Gui Min Yue) and Their His-torical Antecedents, COLLECTION OF ENGLISH PAPERS PRESENTED AT THEINTERNATIONAL SYMPOSIUM ON VILLAGER SELF- GOVERNMENT ANDRURAL SOCIAL DEVELOPMENT IN CHINA, BEIJING, SEPTEMBER 2–5,2001, organized by the MCA and the Carter Center.

145. Amy Gadsen and Anne F. Thurston, Elections at the Grassroots: An Assess-ment of Local Elections in Guangxi, Hebei, Henan, Shanxi and Yunnan Provinces,PRC, July 2000, at 14.


146. See the essay in this volume by Natalie Lichtenstein, Law in China’s Eco-nomic Development.

147. Village Election Law Hailed, note 50 supra.148. Zhao Zhimin, How We Should View Village Elections, BEIJING RENMIN

RIBAO in Chinese, translated in FBIS, Article ID: drchi09161998999733, Septem-ber 16, 1998.

149. Li Peng Urges People’s Congresses to Guarantee Villagers’ Autonomy Right,BEIJING XINHUA, May 31, 2001, translated in FBIS, Article ID:CPP20010531000122.

150. Liu Li, Village People in Hainan Run Their Own Show, CHINA DAILY,June 28, 2001. A summary in English of the NPC investigation report is online athttp://www.cartercenter.org/CHINA/dox/reports/npc.html; the Chinese version isonline at http://www.chinarural.org/news/new/minwen.htm.

151. China Enhances Transparency in Decision-Making Process, http://english.peopledaily.com.cn/200010/24/eng20001024_53492.htm l, October 24, 2000; theChinese text of the CommuniquÈ in full is in the October 11, 2000, online People’sDaily at http://www.peopledaily.com.cn/GB/chanell/10/20001011/267361.html.

152. CPC to Strengthen Democratic Legal System, at http://english.peo-pledaily.com.cn/20001016/eng20001018_52960.html , October 18, 2000; the Chi-nese text of the proposals is found at http://www.peopledaily.com.cn/GB/chanell/10/20001018/276781.html.

153. BEIJING XINHUA DOMESTIC SERVICE in Chinese, translated in FBIS,Article ID: CPP2001010500097. The 1998 Village Transparency Notice is at note51, supra, and accompanying text.

154. Report of the Seventh Plenum of the Central Disciplinary Committee ofthe Chinese Communist Party, January 25, 2002, online at http://www.peo-pledaily.com.cn/GB/shizheng/16/656068.html.

155. See, e.g., the arguments for strong enforcement provisions in VillagersCall for Self-Rule, supra note 95.

156. See note 90 supra.157. See note 91 and accompanying text supra.158. See, e.g., The Conference to Revise the National Procedures, August 2000,

report online at http://www.cartercenter.org/CHINA/dox/reports/2000report.html#7.

159. Citations at note 34 supra.160. See, e.g., LECTURES at 22; VC LEGAL SYSTEM at 162; VC LEGISLA-

TION REPORT at 116. Bai Gang also suggests formation of a central inter-agencybody tasked with implementing villager self- governance and composed of repre-sentatives from the State Council, MCA and other ministries and commissionsunder the State Council. VC LEGISLATION REPORT at 114.

161. The MCA Election Guidelines, note 46 supra.


162. Chen Yujie, Villagers’ Self-Rule: China’s Fundamental Project for Democra-tic Politics, BEIJING RENMIN RIBAO in Chinese, in FBIS, Article ID:FTS19990329000572, March 3, 1999; Village Election Law Hailed, note 50 supra.

163. Do Well Matter of Primary Importance Which Allows 900 Million Peasantsto Become Masters of Their Own Affairs, BEIJING RENMIN RIBAO in Chinese,March 3, 1999, translated in FBIS, Article ID: FTS19990318000285.

164. See, e.g., the speech by Li Peng, Chairman of the Standing Committee ofthe National People’s Congress, in which he states: “Implementing the Organic lawon Villagers Committees is a necessary outcome of the deepening of rural reform,and is an important aspect of running the country according to the law and build-ing a socialist country under rule of law,” in Li Peng Urges People’s Congresses toGuarantee Villagers’ Autonomy Right, BEIJING XINHUA, May 31, 2001, translatedin FBIS, Article ID: CPP20010531000122.


9

The Concept of“One Country, Two Systems”

and Its Application to Hong Kong

Albert H. Chen

The People’s Republic of China (PRC) has always insisted that it is a uni-tary state and cannot accept a federal structure.1 The concept of a specialadministrative region (SAR) within the PRC with a high degree of auton-omy, and the related concept of “one country, two systems,” represent asubstantial modification of the original model of a highly centralized uni-tary state, although they do not go so far as to move China into federal-ism. These novel concepts were developed in the early 1980s, originallywith the intention of achieving re-unification with Taiwan, but subse-quently actually implemented in the cases of Hong Kong and Macau.What is the history and substance of these concepts? How have they beeninstitutionalized legally and politically? And how have they actually beenpracticed in Hong Kong after 1997? It is the purpose of this article to ex-plore these questions.

Historical Origins

The Chinese government’s concept of “one country, two systems” wasoriginally developed as a new cornerstone of its policy toward Taiwan, al-though the full elaboration of the concept took place during the Sino-British negotiations in 1982–84 on the constitutional status of the Britishcolony of Hong Kong after 1997. The origin of the concept can be tracedback to the late 1970s, when a fundamental shift in the PRC’s Taiwan

353

policy occurred.2 The original position before the policy change was thatthe objective of the “liberation of Taiwan” should be pursued. “Liberation”refers, of course, to liberation from the evils of capitalism and imperial-ism, and the revolutionary introduction of communism. The logic of suchliberation flows from the very movement of the communist revolution inmainland China in the 20th century. The fundamental purpose and idealpursued by the Chinese Communist Party have been to transform Chinafrom what it perceived to be a semi-feudal and semi-colonial society into amodern socialist nation-state. As Taiwan is considered an integral part ofChina, one of the important missions of the Party was to provide to thepeople of Taiwan the same benefits of liberation as those enjoyed by Chi-nese in mainland China since 1949.

Why then did a policy change occur after 1978 which led to the conceptof the liberation of Taiwan being dropped? Apart from the domestic polit-ical factor of the ascendancy of Deng Xiaoping’s pragmatism, writers andobservers often refer also to the establishment of friendly relations be-tween China and both Japan and the USA during the 1970s.3 It was con-sidered appropriate that China should adopt a less belligerent stance to-ward the Taiwan Straits.

The new Taiwan policy4 was revealed in several official statements pub-lished since 1979, the most important of which was the nine-point pro-posal of Ye Jianying, President of the PRC National People’s Congress,published in September 1981. The proposal envisaged the peaceful re-uni-fication of China, with Taiwan being given the status of a special adminis-trative region of the PRC. As such it would retain its existing social andeconomic systems after unification. It would enjoy a high degree of auton-omy; it could enter into external economic and cultural relations withother countries, and even maintain its own armed forces. Shortly after-ward, in January 1982, elder statesman Deng Xiaoping coined the expres-sion “one country, two systems,” and said that this was the essence of YeJianying’s statement: there was to be one China, but two systems—the so-cialist system on the mainland, and the capitalist system in Taiwan. In De-cember 1982, when a new Constitution of the PRC was enacted, we find init an article which contemplates the establishment of special administra-tive regions of the PRC which may practice social systems different fromother parts of China.5 In a speech delivered in July 1983, Deng elaboratedthe idea further, pointing out that the mainland government would notsend any civilian or military officials to Taiwan after re-unification under

354 a l b e r t h. c h e n

the “one country, two systems” scheme, the government and armed forcesin Taiwan would be entirely managed by local people, and at the sametime Taiwan representatives would be able to serve in leading positions inthe central government of the PRC.

From the PRC’s perspective, this offer to Taiwan was in the most gener-ous terms. It means no longer insisting on the communist liberation ofTaiwan, which would involve the socialization of private capital in Taiwanand direct rule by Communist Party cadres. It marked therefore a substan-tial compromise, a highly significant relaxation and liberalization of thecommunist dogma and gospel of socialist revolution. However, from thepoint of view of the government in Taiwan, “one country, two systems”means Taiwan’s subordination to and control by the Beijing government.For under this scheme, the Taiwan government would be reduced to alocal or provincial government hierarchically under the central govern-ment in Beijing. The title, flag and emblem of the Republic of Chinawould all have to go. From the constitutional point of view, and applying[Hans] Kelsen’s theory, a shift in the grundnorm (basic norm) of Taiwan’sexisting legal system would have to occur.6 The present Constitution ofthe Republic of China in force in Taiwan would have to be abolished, andall governmental operations in Taiwan would have to derive their legiti-macy from the Constitution of the PRC.

The Taipei government’s rejection of the “one country, two systems”model of re-unification was therefore not surprising. However, the PRCwas soon to be given the opportunity to show to the world that the con-cept of “one country, two systems” was sound in theory and workable inpractice. In September 1982, the British Prime Minister MargaretThatcher visited Beijing, seeking a solution to the question of HongKong’s constitutional status after 1997. High-level negotiations betweenthe two governments started after her visit. Two years of hard bargainingand strenuous work finally produced the Sino-British Joint Declarationon the Question of Hong Kong in September 1984.7 From this docu-ment, and by observing the follow-up actions and behavior relating to itsimplementation,8 we can now understand better what the PRC govern-ment meant by “one country, two systems.” The concept has also beenapplied subsequently to the recovery of Macau, a Portuguese colony adja-cent to Hong Kong. The wording of the Sino-Portuguese Joint Declara-tion in 1987 is largely similar to the Sino-British Joint Declaration of1984.9

“One Country, Two Systems” in Hong Kong 355

Autonomy and Federalism

To understand the real nature of the constitutional experiment that goesunder the expressions “one country, two systems” and “the SAR with ahigh degree of autonomy,” it is necessary first to clarify the concept of au-tonomy, and, second, to contrast the “one country, two systems” model ofautonomy with federalism, which is a constitutional arrangement for au-tonomy familiar to us all. The concept of autonomy10 as used in modernpolitical science refers to a particular mode of distribution of governmen-tal power within a sovereign state. Suppose there is a sovereign state X,and a part of its territory is Y. The population of Y can be said to exercise apower of autonomy within the state X if, acting through their representa-tives, they are empowered to govern themselves in respect of certain pub-lic affairs (such as housing, education, transport, social welfare, environ-mental hygiene, medical services, taxation, etc). The more extensive thekinds of affairs over which they are self- governing, the higher is their de-gree of autonomy.

In such a political arrangement, there will be at least two kinds of gov-ernment in state X. The first is the national or central government of stateX, representing and having authority over all the citizens of X. Second,there is a local government of area Y, representing and having authorityover the population of Y. There exists a division of governmental powersbetween the two levels of government. The division is based on the classi-fication of governmental affairs into different types, and the allocation ofpower over certain types of affairs to one government, and of power overother types of affairs to the other. The more extensive the powers of thelocal government, the higher is the degree of autonomy.

The classic model of federalism is exemplified by the constitutional sys-tems of the USA, Canada, Australia and India.11 The federal state is consti-tuted by a union of its member states. There are two levels of government,the federal level and the state level. The people living in a member state arepartly governed by the state government, and partly by the federal govern-ment (and here I use the word “government” in a broad sense, embracingin its meaning not only the executive branch, but also the legislative andjudicial branches). There is an implicit assumption in the federal modelthat their interests are more directly represented by the state governmentthan the federal government, although they also have the right to partici-pate in the formation of the federal government.


So in what domains are they governed by one government and in whatdomains the other? The answer lies in the constitutional formula for thedivision of power between the two levels of government. The federal con-stitution will specify what are the kinds of governmental affairs overwhich the federal government has jurisdiction, and what are those overwhich the state government has jurisdiction. Over some matters, one ofthe two governments will have exclusive jurisdiction. There may be somematters over which both governments have concurrent jurisdiction. Thewider the range of matters within the exclusive jurisdiction of the stategovernment, the higher its degree of autonomy. So the federal model is es-sentially a kind of arrangement that enables local autonomy to be prac-ticed within a sovereign state.

This division of power between the state government and the federalgovernment is entrenched in the federal constitution and can only be al-tered by a constitutional amendment. Constitutional amendment will notbe an easy task, since it normally requires the act not only of the federallegislature but also the support of a large majority of the state legislaturesor even popular support in referendums.

Then we come to the question of how the constitutional division ofpower operates in practice. In practice disputes are bound to occur fromtime to time regarding whether the federal government (particularly itslegislative branch) has exceeded its jurisdiction and trespassed on matterswhich a state government believes to be within its autonomy, or whetherthe state government (particularly its legislative branch) has exceeded itsjurisdiction and infringed upon the federal government’s exclusive juris-diction. In the classic federal model, such disputes will be handled by thecourts, and ultimately by the federal supreme court. Hence the principleof the Rule of Law and of impartial administration of justice according tolaw by the federal supreme court lies at the heart of the federal model.

One Country, Two Systems

It has been necessary to outline the essential characteristics of the federalstructure above because we need to contrast the “one country, two sys-tems” model with it. After the re-unification of Hong Kong and Macauwith China, the structure of the PRC consists of a national or central gov-ernment, and, at the level directly below it, 28 provincial governments (in-cluding the governments of five autonomous regions), 4 governments of


municipalities directly under the central government, and 2 governmentsof SARs. It is not a federal system because there is nothing in the nationalconstitution which provides for a formal division of power between thenational government and the provincial, municipal, and SAR govern-ments.12 There is no constitutional limitation on the capacity of the na-tional government to exercise power with regard to any matter within anyprovince, city, or SAR of the PRC.

The Basic Law

What, then, is the basis of the autonomy of the SAR, which is alleged to bea high degree of autonomy, so high that it can be expressed by the term“one country, two systems?” The basis is the Basic Law for the SAR, whichis a law enacted by the national legislature, the NPC, in pursuance of arti-cle 31 of the PRC Constitution. There are two Basic Laws, one for HongKong, the other for Macau.13

The Basic Law:

(a) provides for the modes of formation and operation of the govern-ment of the SAR,

(b) identifies the sources of law in the SAR,(c) guarantees the human rights of its residents,(d) stipulates the social and economic systems and policies to be prac-

ticed in the SAR, and, most important of all,(e) defines its relationship with the central government and the scope

of its autonomous powers.

All in all, the Basic Law establishes in the SAR political, legal, social, andeconomic systems that are very different from those in force in mainlandChina. Hence the expression “one country, two systems.”14

The Basic Law is not merely a paper constitution. In the case of HongKong, it has come into force since 1 July 1997, and the world has beenable to see how the promises made in the Sino-British Joint Declaration(1984) and the Basic Law of the HKSAR (1990) are being implemented.I believe it would not be controversial to say that the international as-sessment has been generally positive. It has been generally acknowledgedthat the HKSAR government has been given a free hand to govern HongKong on the basis of the Basic Law, and no accusation has been made byany party that the Beijing government has violated the terms of the Joint


Declaration or the Basic Law. Freedoms of the press, association anddemonstrations are alive and well, and we have seen in Hong Kong theannual large-scale vigils to commemorate the 1989 Tiananmen incidentand demonstrations and conferences by Falungong followers.15 Free mul-tiparty elections have been held.16 In the economic domain, the mostcontroversial event was the government intervention in 1998 to preventthe collapse of the stock market and the HK dollar,17 and it is generallyaccepted that this was the decision of the HK government made withoutany pressure or interference from Beijing. In the legal domain, the mostcontroversial act was the reference of some provisions of the Basic Lawon the right of abode to Beijing for interpretation, but this was againentirely the act of the HK government and not a result of Beijing inter-vention.

The “Right of Abode” Controversy

As the “right of abode” incident stands out as the single crisis in the his-tory of the Hong Kong SAR so far in which Hong Kong’s autonomy wasput to the test, it is perhaps appropriate to describe and comment on itbriefly here.18 The controversy arose out of the Hong Kong Court of FinalAppeal’s (CFA) decisions on 29 January 1999 in two related cases, Ng Ka-ling and Others v Director of Immigration19 and Chan Kam-nga and 80Others v Director of Immigration.20 More precisely, there were two contro-versies arising from the decisions which were ultimately resolved in differ-ent ways.

The first issue relates to the CFA’s statement21 in its judgment in Ng Ka-ling that Hong Kong courts have the jurisdiction “to examine whether anylegislative acts of the National People’s Congress or its Standing Commit-tee are consistent with the Basic Law and to declare them to be invalid iffound to be inconsistent.”22 This provoked a strong reaction from themainland Chinese side,23 which led to the SAR Government’s applicationto the CFA on 26 February 1999 requesting it to “clarify” the relevant partof its judgment. The CFA acceded to the request and stated that (1) theHong Kong courts’ power to interpret the Basic Law is derived from theNPC Standing Committee under article 158 of the Basic Law; (2) any in-terpretation made by the Standing Committee under article 158 would bebinding on the Hong Kong courts; and (3) the judgment of 29 January didnot question the authority of the NPC and its Standing Committee “to do


any act which is in accordance with the provisions of the Basic Law andthe procedure therein.”24

It was generally accepted by the legal community and public opinion inHong Kong that the CFA’s “clarification” did not imply any retreat from itsoriginal position as defined in the judgment of 29 January, but only madeexplicit what was implicit in the original judgment. I have elsewhere com-mented that the success of the statement in resolving the crisis was pre-cisely because it was ambiguous enough to sustain different interpreta-tions, and that the jurisprudential problems concerned are actually morecomplicated than as suggested by the text of the “clarification” and haveremained unresolved.25

The second controversy stemmed from the CFA’s interpretation of arti-cles 24(2)(iii) and 22(4), and its decision not to refer the latter to the NPCStanding Committee for interpretation under article 158 of the Basic Law.Article 24(2)(iii) of the Basic Law confers the right of abode in HongKong on children born in mainland China of Hong Kong permanent resi-dents,26 but is ambiguous as regards whether the right is confined to chil-dren of parents who were already Hong Kong permanent residents at thetime of the children’s birth (“the narrow interpretation”), or whether itextends also to children whose parents were not permanent residents atthe time of the children’s birth but subsequently became Hong Kong per-manent residents (“the broad interpretation”). Article 22(4) provides that“people from other parts of China” must apply for approval from themainland authorities in order to enter Hong Kong, but is ambiguous asregards whether this requirement is only applicable to mainland residentswho have no right of abode in Hong Kong under article 24 of the BasicLaw (“the narrow interpretation”), or whether the requirement is also ap-plicable to those mainland residents who have acquired the right of abodein Hong Kong under article 24(2)(iii) of the Basic Law when the Basic Lawcame into operation on 1 July 1997 (“the broad interpretation”). Article158 of the Basic Law requires the CFA, before rendering its final judgment,to refer to the NPC Standing Committee for interpretation any relevantprovisions of the Basic Law “concerning affairs which are the responsibil-ity of the Central People’s Government, or concerning the relationship be-tween the Central Authorities and the Region,” if the Court needs to inter-pret such provisions and their interpretation will affect the judgment.

In the course of this litigation, the Court of First Instance had adoptedthe broad interpretation of article 24(2)(iii) and the broad interpretation


of article 22(4). The Court of Appeal had adopted the narrow interpreta-tion of article 24(2)(iii) and the broad interpretation of article 22(4).When the cases were appealed to the CFA, the CFA adopted the broad in-terpretation of article 24(2)(iii) and the narrow interpretation of article22(4). It also decided that article 22(4) need not be referred to the NPCStanding Committee for interpretation, because it was not the “predomi-nant provision” to be interpreted in this case, and such “predominant pro-vision” was article 24(2), which in the CFA’s opinion did not concern thecentral government’s responsibility or the relationship between the centralgovernment and the SAR.

On the basis of sample surveys and statistical studies conducted afterthe CFA’s decisions were rendered, the SAR Government estimated thatthe implementation of articles 24(2)(iii) and 22(4) as interpreted by theCFA would mean that Hong Kong would need to absorb a migrant popu-lation from mainland China of 1.67 million in the coming decade, whichtask would impose on Hong Kong a social and economic burden so enor-mous that Hong Kong would find it hardly endurable. In the Govern-ment’s opinion, Hong Kong need not bear this burden because the CFA’sinterpretation of the relevant Basic Law provisions was of dubious valid-ity. The Government argued that although the CFA is the court of finaladjudication in Hong Kong, it is not necessarily on all issues the final tri-bunal for the interpretation of the Basic Law, because under article 158(1)of the Basic Law, the NPC Standing Committee has the ultimate authorityto interpret the Basic Law.

Thus on 21 May 1999, the Chief Executive, Mr. Tung Chee-hwa, despitestrong opposition from certain sectors of the community, requested theState Council to refer the relevant Basic Law provisions to the StandingCommittee for interpretation. The request was acceded to, and the Stand-ing Committee issued an interpretation on 26 June 1999.27 The StandingCommittee adopted the narrow interpretation of article 24(2)(iii) and thebroad interpretation of article 22(4). The CFA’s decision on these pointswas effectively overruled, although the parties to the litigation were not tobe affected by the Standing Committee’s decision. In the text of its deci-sion, the Standing Committee also pointed out that the litigation did in-volve Basic Law provisions concerning the central government’s responsi-bility or the central-SAR relationship which ought to have been referred tothe Standing Committee for interpretation by the CFA in accordance witharticle 158(3) of the Basic Law.


Given the circumstances as outlined above, the Standing Committee’sinterpretation of the Basic Law in June 1999 cannot be regarded as an actof interference by the central government with the autonomy of the SAR.The incident can best be interpreted as the result of a major collision ofthe CFA with the executive and legislative branches of the SAR Govern-ment—it should be noted in this regard that the litigation in both Ng Ka-ling and Chan Kam-nga concerned the judicial review of the validity ofimmigration legislation introduced by the Hong Kong legislature definingthe scope of the right of abode of mainland- born children of Hong Kongpermanent residents and regulating the procedures for their migration toHong Kong for settlement, and whether such legislation is inconsistentwith the Basic Law. Another important factor was the failure of the CFA toadhere to the “reference” requirement in article 158(3) of the Basic Law.28

As Professor Jerome Cohen said in his testimony before the Subcommitteeon East Asian and Pacific Affairs of the U.S. Senate Foreign RelationsCommittee on 1 July 1999:

My greatest problem with the Court’s decision is not over its substantive

interpretations regarding the immigration issues but over its refusal to

refer the Article 22 issue for interpretation by the Standing Committee of

the National People’s Congress before the Court rendered its judgment. . .

. It is difficult for me to conclude that the question of whether under Arti-

cle 22(4) the Central Government continues to have the power to require

exit visas for those nationals who have acquired permanent Hong Kong

residence and the power to regulate the number of them who can leave for

Hong Kong is not an affair that is the responsibility of the Central Gov-

ernment or does not concern the relationship between the Central Au-

thorities and Hong Kong. . . . The five able members of the Court of Final

Appeal who unanimously, if astonishingly, decided that there was never-

theless no need to refer the Article 22 issue for interpretation by the

Standing Committee, were taking a bold gamble in the interest of maxi-

mizing Hong Kong’s autonomy. They would have gotten away with it had

not the Hong Kong Government’s preparation for the anticipated immi-

gration influx recently led it to believe that as many as 1.67 million people

might have to be absorbed during the next decade by a population of

merely 6.5 million.


International Assessment

Even in the midst of the controversy surrounding the right of abode, Mr.Stanley Roth, Assistant Secretary of State of the United States, was re-ported to say in July 1999 that

Hong Kong has largely remained autonomous, open and observant of the

Rule of Law—far more so than any had anticipated. . . . In all management

and economic issues, the decisions were made by the SAR government

without reference to Beijing.29

Mr. Robin Cook, the British Foreign Secretary, stated in his report onHong Kong to Parliament in the same month that

With the passing of the second anniversary of the handover, our assessment

is that the Governments of China and of the HKSAR remain committed to

making a success of “One Country, Two Systems” and that on the whole the

system is working well in practice.30

In late 1999, the American Heritage Foundation in its “Index on Eco-nomic Freedom” placed Hong Kong at the top of more than 100 countriesor regions as a place in which the highest degree of economic freedomflourishes.31 And in May 2000, the European Commission issued a reporton Hong Kong stating that the “one country, two systems” principle isgenerally working well, and that “Hong Kong remains one of the freest so-cieties in Asia.”32

The Secret of Success

What, then, is the secret of the success so far of the “one country, two sys-tems” model as applied to Hong Kong? I would like to suggest that the an-swer lies partly in the Basic Law, its provisions and the institutions it es-tablishes. But this is only part of the answer, and probably not the most es-sential part of it. An even more important component of the answerrelates to the unwritten practices and evolving constitutional conventionsadopted by the Beijing government in relation to the HKSAR. I wouldtherefore like to stress that if we want to understand what is the “onecountry, two systems” model, it is extremely inadequate just to look at thetext of the Basic Law, and we must look at the actual behavior, mentality,


and practices of the authorities concerned. Some people say that the BasicLaw looks good on paper but they doubt whether it will be translated intopractice. I would suggest instead that the Basic Law is far from perfect onpaper, but unwritten practices, understandings, and conventions havecontributed much to improve it.

So what are the strengths and weaknesses of the Basic Law? How do in-formal practices and unwritten conventions help to minimize the weak-nesses? What weaknesses still remain? These are questions I would like toexplore in the remainder of this article.

Strengths and Weaknesses

The greatest strength in the “one country, two systems” (OCTS) model asenshrined in the Basic Law of Hong Kong is the very high degree of au-tonomy it confers on the SAR. Both the OCTS model and the federalmodel mentioned above are models of autonomy. The strength of theOCTS model is that the degree of autonomy enjoyed by the SAR is in factmuch higher than that enjoyed by member states of federal states.33 Basi-cally, all governmental affairs in the SAR other than defense and foreignaffairs are within the jurisdiction of the SAR government. Aspects of thishigh degree of autonomy include the following:

(1) More than 99 percent of the laws enacted by the central legislatureare not applicable to the SAR, in which the preexisting commonlaw system is preserved. The only national laws that apply are listedin Annex III to the Basic Law, and there are 11 such laws at the mo-ment, such as the Nationality Law, National Flag Law, Law on theTerritorial Sea, Law on the Garrisoning of the Hong Kong SAR,Regulations on Diplomatic Privileges and Immunities, etc.34

(2) Hong Kong residents do not have to pay any tax to the central gov-ernment, and the tax which they pay to the SAR Government willbe used for the SAR exclusively—no part of it has to be handedover to the central government.

(3) The SAR can continue to have and issue its own currency, the HKdollar.

(4) The SAR can control and regulate entry and exit of persons intoand out of the SAR.

(5) The SAR is a customs territory separate from other parts of China.


(6) The SAR, using the name of “Hong Kong, China,” enters into eco-nomic and cultural relations with other countries and participatesin some international organizations whose membership is not re-stricted to sovereign states. The WTO [World Trade Organization]is a good example here.35

The degree of autonomy which the HKSAR now enjoys is certainly notless than it had under British rule. Indeed, whereas Hong Kong’s auton-omy in the colonial era was largely a product of unwritten practices andconstitutional conventions, the SAR’s autonomy in many domains is nowexpressly guaranteed by the Basic Law.36 This, then, is the strength of theOCTS model of autonomy.

There are, I think, two principal limitations or weaknesses of the OCTSmodel. One is that the constitutional and legal guarantees for autonomyare less secure than in federalism. The other relates to the limited extent ofdemocratization in the SAR. I will show however that the first weaknessdoes not yet have much practical significance, and is also remedied by un-written norms of practice or custom, and the second weakness can, hope-fully, be overcome in the course of time.

Legal Guarantees for Autonomy

Let me elaborate on the first point. In federalism, the division of powerbetween the federal and state governments is written into the constitutionwhich cannot be easily amended, and when jurisdictional disputes arise,the federal supreme court is the final arbiter. In the OCTS model, the divi-sion of power between the central government and the SAR government isprovided for in a Basic Law enacted by the NPC. In the extreme case of theNPC acting unilaterally in changing the Basic Law to curtail substantiallythe SAR’s autonomy, there is no legal or judicial remedy (even if theamendment apparently violates article 159 of the Basic Law).37 Moreover,there is no independent judicial forum for the determination of jurisdic-tional disputes between the central government and the SAR. Under arti-cles 17, 18, and 158 of the Basic Law, it is not a court but the NPC Stand-ing Committee, acting in consultation with the Basic Law Committee,38

which has the power to determine whether an SAR law is ultra vires, toapply a national law to the SAR, and to issue an interpretation of the BasicLaw.


What is the difference between having a federal supreme court and hav-ing the NPC Standing Committee to resolve jurisdictional disputes arisingfrom the practice of autonomy within a sovereign state? The question isultimately a question of trust. If people have confidence that the NPCStanding Committee (advised by the Basic Law Committee) can do asgood a job as the U.S. Supreme Court, then the weakness in the OCTS sys-tem that we are discussing would disappear. But the sad reality is that theNPC Standing Committee [NPCSC] is not able to command respect as animpartial arbiter of constitutional disputes.

There are however two ways in which the practical implications of thisweakness in the system have been and can be minimized. One relates tothe very high degree of autonomy of the SAR which we have identified asthe strength of the system. In federal systems like those in the USA,Canada, Australia, and India, the constitution stipulates a complicated for-mula for dividing up power between the federal and state governments.Both levels of government exercise power over a wide range of govern-mental affairs, and many gray areas exist. The complexity of the formulagives rise to demarcation problems and frequent jurisdictional disputes.By contrast, the formula for division of power in the OCTS model is sim-ple.39 The SAR has jurisdiction over almost all matters other than defenseand foreign affairs. The scope of autonomy of the SAR is so large thatthere are extremely few occasions on which the exercise of power by thecentral government is called for. Indeed, in the last three years, no concretejurisdictional dispute has actually occurred (there was however an “ab-stract” jurisdictional dispute arising from the Court of Final Appeal’sjudgment in January 1999).40

Furthermore, although in theory the powers which the central govern-ment has under articles 17, 18, 158, and 159 of the Basic Law are quitesubstantial and may be exercised in such a way as to threaten the SAR’s au-tonomy, a practice or unwritten norm seems to have been developedwhereby the central government exercises utmost self-restraint so as tominimize its interventions and to maximize the SAR’s autonomy. For ex-ample, under article 17, the NPCSC has the power to nullify SAR laws thatexceed the scope of the SAR’s autonomy. However, the central governmenthas not established any machinery for the systematic scrutiny of each SARlaw when it is passed, and has never queried any SAR law. Under article18, national laws may be applied to the SAR, but after 1 July 1997, onlyone national law has been applied in this way, and that relates to exclusiveeconomic zones and continental shelves under the international law of the


sea.41 Under article 158, the NPCSC may issue an interpretation of theBasic Law, and in June 1999, an interpretation was actually issued on arti-cles 22 and 24 of the Basic Law relating to the right of abode in the SAR ofchildren born in the mainland of HK residents.42 It is important to notethat this interpretation was only issued because the SAR Government sub-mitted to the central government a request for interpretation of the rele-vant provisions.

The Question of Democracy

Finally, let me come to the second limitation of or weakness in the OCTSmodel as practiced in Hong Kong. This relates to the principle that in anyarrangement for autonomy, the scope of autonomy is only one major fac-tor, and another equally important factor relates to whether the au-tonomous regional government can really represent the interests of thepeople of the autonomous unit.43 This in turn depends on the nature ofthe domestic political system of the autonomous unit, and, in particular,whether it is sufficiently democratic.

Here it must be pointed out that the domestic political system of theHKSAR falls short of international standards of democracy.44 The firstChief Executive of the SAR was elected by a 400-member selection com-mittee which was elected, on the basis of occupational and communitygroupings in various social sectors, by the SAR Preparatory Committeeappointed by Beijing.45 The second Chief Executive will be elected by an800-member electoral college itself elected by groups from various socialsectors.46 After the election, the elected candidate is not yet Chief Execu-tive before the central government exercises the power to appoint him orher as the Chief Executive.47 In each of the first three terms of office of thelegislature of the SAR (other than the provisional legislature), not morethan half of the members are directly elected by universal suffrage, theothers being elected on the basis of occupational and other social group-ings.48

On the other hand, the Basic Law does provide for the possibility offurther democratization of the SAR. Indeed, article 45 stipulates that theultimate aim is the selection of the Chief Executive (CE) by universal suf-frage (upon nomination by a broadly representative nominating commit-tee), and article 68 also stipulates that the ultimate aim is the election ofall legislators by universal suffrage. But even here, it can be seen that a


screening stage is introduced for candidates for CE. This, together with thereservation to the central government of the power to appoint the CE andthe strong position of the CE within the SAR’s political system (which hasbeen described by mainland Chinese scholars who participated in thedrafting of the Basic Law as an “executive-led” system),49 is apparently in-tended to ensure that the SAR will not be governed by anyone who is nottrustworthy and acceptable from the central government’s point of view.

Paradoxically, there might be a connection between the limited democ-racy within the SAR’s political system and the huge scope of its autonomy.Precisely because the SAR’s degree of autonomy is so high, the central gov-ernment cannot afford to let the SAR be governed by someone who maybe ideologically opposed to or otherwise unable or unwilling to adopt acooperative attitude toward the central government. This, then, is anotherdifference between the OCTS model and federal systems in liberal democ-ratic constitutional states.

Conclusion

To conclude, the OCTS model is an outgrowth of the political and legalculture of the PRC. If we evaluate it by means of Western notions of feder-alism, autonomy, democracy, and the Rule of Law, it is clearly deficient.But to be fair, it already represents a significant breakthrough for the Chi-nese political and legal system. Even though it is not legally water-tightand has to rely on informal practices and unwritten norms to supplementit, and even though it falls short of the democratic ideal, it has delivered,and, I believe, will continue to deliver to the people of Hong Kong thehuman rights, economic freedoms, open society, pluralistic culture, andfree lifestyle that they cherish.

n o t e s

1. See, e.g., XIANFA [CONSTITUTIONAL LAW], at 118–128 (Xu Chongdeed., 1999).

2. See, e.g., Ying-jeou Ma, Policy towards the Chinese Mainland: Taipei’s View,in IN THE SHADOW OF CHINA: POLITICAL DEVELOPMENTS IN TAIWANSINCE 1949, ch. 8 (Steve Tsang ed., 1993); HSIN-HSING WU, BRIDGING THESTRAIT: TAIWAN, CHINA, AND THE PROSPECTS FOR REUNIFICATION(1994).


3. Ma, id. at 193.4. See generally YIGUO LIANGZHI GAILUN [GENERAL PRINCIPLES OF

“ONE COUNTRY, TWO SYSTEMS”] (Zhao Chunyi ed., 1988); “YIGUOLIANGZHI” YU ZUGUO TONGYI [“ONE COUNTRY, TWO SYSTEMS” ANDCHINA’S REUNIFICATION] (Liaowang zhoukan haiwaiban bianjibu [Editorialdepartment of the overseas edition of Liangwang weekly] eds., 1988); HUANG YI,XIANGGANG WENTI HE YIGUO LIANGZHI [THE QUESTION OF HONGKONG AND “ONE COUNTRY, TWO SYSTEMS”] (1990).

5. Article 31 of the 1982 Constitution provides: “The State may establish spe-cial administrative regions when necessary. The systems to be instituted in specialadministrative regions shall be prescribed by law enacted by the National People’sCongress in the light of specific conditions.” This translation is taken from CON-STITUTION OF THE PEOPLE’S REPUBLIC OF CHINA (Foreign LanguagesPress, 1987).

6. For the application of this theory in the Hong Kong context, see Albert H.Y.Chen, The Provisional Legislative Council of the SAR, 27 HONG KONG LAWJOURNAL 1 at 9–10; and Raymond Wacks, One Country, Two Grundnormen? TheBasic Law and the Basic Norm, in HONG KONG, CHINA AND 1997: ESSAYS INLEGAL THEORY, ch. 6 (Raymond Wacks ed., 1993).

7. For the history of the negotiations, see DAVID BONAVIA, HONG KONG1999 (1983); FELIX PATRIKEEFF, MOULDERING PEARL: HONG KONG ATTHE CROSSROADS (1989). For initial assessments of the Sino-British Joint Dec-laration, see HONG KONG AND 1997: STRATEGIES FOR THE FUTURE (Y.C.Jao et al. eds., 1985); THE FUTURE OF HONG KONG: TOWARD 1997 AND BE-YOND (Hungdah Chiu et al. eds., 1987).

8. For developments in the late 1980s and 1990s, see generally Byron S.J.Weng, The Hong Kong Model of “One Country, Two Systems”: Promises and Prob-lems, in THE BASIC LAW AND HONG KONG’S FUTURE (Peter Wesley-Smithand Albert Chen eds., 1988); Albert H.Y. Chen, From Colony to Special Administra-tive Region: Hong Kong’s Constitutional Journey, in THE FUTURE OF THE LAWIN HONG KONG, ch. 3 (Raymond Wacks ed., 1989); Ambrose Y.C. King, “OneCountry, Two Systems”: An Idea on Trial, in HONG KONG’S TRANSITION: ADECADE AFTER THE DEAL, ch. 7 (Wang Gungwu and Wong Siu-lun eds.,1995); THE HONG KONG READER: PASSAGE TO CHINESE SOVEREIGNTY(Ming K. Chan and G.A. Postiglione eds., 1996); THE CHALLENGE OF HONGKONG’S REINTEGRATION WITH CHINA (Ming K. Chan ed., 1997); HONGKONG’S REUNION WITH CHINA: GLOBAL DIMENSIONS (G.A. Postiglioneand James T.H. Tang eds., 1997); HONG KONG SAR: IN PURSUIT OF DOMES-TIC AND INTERNATIONAL ORDER (Beatrice Leung and Joseph Cheng eds.,1997). For a more up-to-date picture, see Benny Yiu-ting Tai, The Development ofConstitutionalism in Hong Kong, in THE NEW LEGAL ORDER IN HONGKONG, ch. 2 (Raymond Wacks ed., 1999).


9. For the case of Macau, see H.S. Yee and S.H. Lo, Macau in Transition: Politicsof Decolonisation, 31 ASIAN SURVEY 905 (1991); Lo Shiu Hing, Comparative Po-litical Systems: The Cases of Hong Kong and Macau, 25 JOURNAL OF CONTEM-PORARY ASIA 254 (1995); LO SHIU-HING, POLITICAL DEVELOPMENT INMACAU (1995); Yash Ghai, The Basic Law of the Special Administrative Region ofMacau: Some Reflections, 49 INTERNATIONAL AND COMPARATIVE LAWQUARTERLY 183 (2000).

10. See generally MODELS OF AUTONOMY (Yoram Dinstein ed., 1981);HURST HANNUM, AUTONOMY, SOVEREIGNTY AND SELF-DETERMINA-TION (1990). For the application of the concept of autonomy to the case of HongKong, see, e.g., Albert H.Y. Chen, The Relationship between the Central Governmentand the SAR, in Wesley-Smith and Chen, supra note 8, ch. 7; Yash Ghai, A Compar-ative Perspective, in HONG KONG’S BASIC LAW: PROBLEMS AND PROSPECTS1 (Peter Wesley- Smith ed., 1990); Albert H.Y. Chen, Some Reflections on HongKong’s Autonomy, 24 HONG KONG LAW JOURNAL 173 (1994).

11. See generally K.C. WHEARE, FEDERAL GOVERNMENT (4th ed. 1963).12. The new Law on Legislation (Lifa fa) enacted by the National People’s

Congress in March 2000 provides for a list of subject matters which may only beregulated by laws enacted by the national legislature (see article 8 of the Law), andwhich by implication may not be dealt with by local regulations enacted by theprovincial legislatures (see articles 63 and 64 of the Law). This may be regarded asa rudimentary form of the division of legislative power between the central andprovincial legislatures.

13. For works on the Basic Law of the Hong Kong Special Administrative Re-gion of the PRC, see Wesley-Smith and Chen, supra note 8; THE HONG KONGBASIC LAW: BLUEPRINT FOR “STABILITY AND PROSPERITY” UNDER CHI-NESE SOVEREIGNTY? (Ming K. Chan and David J. Clark eds., 1991); YASHGHAI, HONG KONG’S NEW CONSTITUTIONAL ORDER: THE RESUMP-TION OF CHINESE SOVEREIGNTY AND THE BASIC LAW (2nd ed. 1999). Onthe Basic Law of Macau, see Ghai, supra note 9.

14. For the perspectives of mainland Chinese scholars on the Basic Laws ofHong Kong and Macau, see YIGUO LIANGZHI YU XIANGGANG TEBIEX-INGZHENGQU JIBENFA [“ONE COUNTRY, TWO SYSTEMS” AND THEBASIC LAW OF THE HKSAR] (Xiao Weiyun ed., 1990); XIANGGANG TEBIEX-INGZHENGQU JIBENFA DAOLUN [AN INTRODUCTION TO THE BASICLAW OF THE HKSAR] (Wang Shuwen ed., rev. ed. 1997); YANG JINGFEI,AOMEN JIBENFA SHIYI [COMMENTARY ON THE BASIC LAW OF MACAU](1999); YANG JINGFEI and LI XIANGQIN, GANGAO JIBENFA BIJIAO YANJIU[A COMPARATIVE STUDY OF THE BASIC LAWS OF HONG KONG ANDMACAU] (1997).

15. For post-1997 Hong Kong, see generally THE OTHER HONG KONG RE-PORT 1998 (L.C.H. Chow and Y.K. Fan eds., 1999); HONG KONG IN CHINA:


THE CHALLENGES OF TRANSITION (Wang Gungwu and John Wong eds.,1999).

16. See, e.g., POWER TRANSFER AND ELECTORAL POLITICS: THE FIRSTLEGISLATIVE ELECTION IN THE HONG KONG SPECIAL ADMINISTRATIVEREGION (Kuan Hsin-chi et al. eds., 1999).

17. See Katherine Lynch, The Temptation to Intervene: Problems Created byGovernment Intervention in the Hong Kong Stock Market, 29 HONG KONG LAWJOURNAL 123 (1999).

18. For further discussion, see HONG KONG’S CONSTITUTIONAL DE-BATE: CONFLICT OVER INTERPRETATION (Johannes M.M. Chan et al. eds.,2000).

19. [1999] 1 Hong Kong Law Reports and Digest 315.20. [1999] 1 Hong Kong Law Reports and Digest 304.21. The statement may or may not form part of the ratio decidendi of the

Court’s decision, depending on how the reasoning process is to be interpreted.22. [1999] 1 Hong Kong Law Reports and Digest 315, at 337.23. In a highly publicized seminar reported in Hong Kong and mainland

media on 7 February 1999, four leading Chinese law professors, who were alsoformer members of the Drafting Committee for the Basic Law and the Prepara-tory Committee for the establishment of the HKSAR, attacked the statement, sug-gesting that it had the effect of placing Hong Kong courts above the NPC, which isthe supreme organ of state power under the Chinese Constitution, and of turningHong Kong into an “independent political entity.” After the HKSAR’s Secretary forJustice Elsie Leung’s visit to Beijing on 12–13 February to discuss the matter, it wasreported that Chinese officials also criticized the statement as unconstitutionaland called for its “rectification.”

24. [1999] 1 Hong Kong Law Reports and Digest 577.25. See The Court of Final Appeal’s Ruling in the “Illegal Migrant” Chil-

dren Case: Congressional Supremacy and Judicial Review in Chan, supra note18, at 73.

26. Before the Basic Law came into operation on 1 July 1997, such childrenhad no legal entitlement to reside in Hong Kong.

27. For the full bilingual text of this interpretation, see THE GOVERNMENTOF THE HONG KONG SPECIAL ADMINISTRATIVE REGION GAZETTE EX-TRAORDINARY, Legal Supplement No. 2, 28 June 1999, 1577 (L.N. 167 of 1999).

28. For further details, see my chapter The Court of Appeal’s Ruling in the “Ille-gal Migrant” Children Case: A Critical Commentary on the Application of Article158 of the Basic Law, in Chan, supra note 18, at 113.

29. HONG KONG STANDARD, 3 July 1999.30. SIX-MONTHLY REPORT ON HONG KONG, JANUARY–JUNE 1999

(presented to Parliament by the Secretary of State for Foreign and Common-wealth Affairs, Cm 4415), at 3.


31. G.P. O’DRISCOLL, JR. et al., 2000 INDEX OF ECONOMIC FREEDOM(2000).

32. SOUTH CHINA MORNING POST, 19 May 2000, at 6.33. The extremely high degree of autonomy (in terms of the range of subject-

matters over which the autonomous government has control) in the case of theHong Kong SAR has been recognized by authors both inside and outside main-land China. See, e.g., Wang Shuwen, supra note 14, at 40–52, 131–142; Ghai, supranote 10, at 9; Hannum, supra note 10, at 149.

34. Annex III has been amended twice after the Basic Law was enacted in1990. First, on 1 July 1997, the NPC Standing Committee added to it five new lawsenacted between 1990 and 1997: the Law on the Garrisoning of the HKSAR, theNational Flag Law, the National Emblem Law, and two other laws on the territor-ial sea and consular privileges. Secondly, the Law on the Exclusive Economic Zoneand the Continental Shelf was added to Annex III in December 1998 (see GOV-ERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGIONGAZETTE No. 52/1998, Legal Supplement No. 2, L.N. 393 of 1998 [24 December1998]). Article 18 of the Basic Law provides that Annex III laws should be appliedin Hong Kong “by way of promulgation or legislation by the Region.” In practice,only the National Flag Law and the National Emblem Law have been applied inHong Kong by local legislation (the National Flag and National Emblem Ordi-nance, which adapts the national laws to local circumstances), whereas all theother Annex III laws have been directly applied to Hong Kong by promulgation.

35. See generally RODA MUSHKAT, ONE COUNTRY, TWO INTERNA-TIONAL LEGAL PERSONALITIES: THE CASE OF HONG KONG (1997).

36. See, e.g. the discussion in Chen, supra note 8, at 112–115; Robert Allcock,Application of Article 158 of the Basic Law, paper presented at CONSTITUTIONALLAW CONFERENCE ON IMPLEMENTATION OF THE BASIC LAW: A COM-PARATIVE PERSPECTIVE jointly organized by the Faculty of Law, University ofHong Kong, and the Department of Justice, HKSAR, and held in Hong Kong on28–29 April 2000.

37. This might be arguable, and the answer depends on the extent of the sov-ereignty and supremacy of the NPC under the constitutional law of the PRC andthe HKSAR, and, in particular, to what extent the NPC can bind its successors (i.e.future sessions of the NPC). See Bing Ling, Can Hong Kong Courts Review andNullify Acts of the National People’s Congress? 29 HONG KONG LAW JOURNAL 8(1999); Albert Chen, Constitutional Crisis in Hong Kong: Congressional Supremacyand Judicial Review, 33 INTERNATIONAL LAWYER 1025 (1999).

38. The Basic Law Committee was formed in pursuance of a decision of theNPC made on 4 April 1990, the same day as the date of the enactment of the BasicLaw. According to the decision, the Basic Law Committee shall consist of 12 mem-bers, including 6 mainland members and 6 Hong Kong members, each appointedfor a five-year term. The Hong Kong members are to be appointed by the NPC


Standing Committee on the basis of joint nominations made by the Chief Execu-tive of the HKSAR, the Chief Justice of the Court of Final Appeal of the HKSAR,and the President of the Legislative Council of the HKSAR. At the moment, the sixmainland members include three officials of the NPC Standing Committee (twoof whom are involved in legislative work), a vice-director of the Hong Kong andMacau Affairs Office of the State Council, a vice-Foreign Minister, and a law pro-fessor. The six Hong Kong members include three members of the legal profession(including a law professor), a businessman, a doctor, and an educator.

39. Thus Mr. Robert Allcock, Acting Solicitor General of the HKSAR, pointsout that “many of the demarcation issues that arise elsewhere are unlikely to arisein respect of Hong Kong”: see Allcock, supra note 36, at 4.

40. See Chen, supra note 37.41. See supra note 34.42. See the above section of this article on the “right of abode” controversy.43. I have also discussed this issue in Some Reflections on Hong Kong’s Auton-

omy, supra note 10.44. See generally Yash Ghai, Hong Kong and Macau in Transition (I): Debating

Democracy, 2 DEMOCRATIZATION 270 (1995); Yash Ghai, Hong Kong andMacau in Transition (II): Exploring the New Political Order, 2 DEMOCRATIZA-TION 291 (1995); LO SHIU-HING, THE POLITICS OF DEMOCRATIZATIONIN HONG KONG (1997); KUAN HSIN-CHI et al., THE 1995 LEGISLATIVECOUNCIL ELECTIONS IN HONG KONG (1996).

45. The basic principles governing the selection of the first Chief Executive ofthe HKSAR were set out in the NPC’s Decision on the Method for the Formationof the First Government and the First Legislative Council of the HKSAR, a deci-sion made by the NPC on 4 April 1990, the date of the enactment of the BasicLaw. For further details, see Albert H.Y. Chen, Legal Preparation for the Establish-ment of the Hong Kong SAR: Chronology and Selected Documents, 27 HONGKONG LAW JOURNAL 405 (1997).

46. This is provided for in Annex I to the Basic Law.47. See article 45 of the Basic Law.48. See Annex II to the Basic Law. On the first election to the Legislative Coun-

cil of the HKSAR held in 1998, see Kuan, supra note 16.49. Wang Shuwen, supra note 14, at 207–209.


10

The Rule of Law in TaiwanCulture, Ideology, and Social Change

Tsung-fu Chen

The English jurist A. V. Dicey once formulated a famous definition of theRule of Law that included three principles: first, the law has absolute su-premacy over arbitrary power, including the wide discretionary powers ofgovernment; second, all classes of people are equally subject to the ordi-nary law of the nation administered in the ordinary courts; and third,constitutional law is not the source but the consequence of the rights ofindividuals, as defined and enforced by the courts.1

In a modern welfare state, the discretionary powers of government areinevitable. As a result, the crucial issue is the extent to which the govern-ment is entitled to exercise this power. Although in a continental law sys-tem an administrative court is established in addition to ordinary courts,it can follow the principle of the Rule of Law by carrying out the dueprocess of law. Even if a constitution is the result of legislation, constitu-tional rights must be “the fruit of contests carried on in the courts on be-half of the rights of individuals.”2 Therefore, Dicey’s concept of the Rule ofLaw means in modern society that (1) no arbitrary exercise of govern-mental power in excess of its authorization is permitted, (2) both the gov-ernment and private citizens are subject to the law, with all classes of peo-ple entitled to a fair and equal procedure in any court of law, and (3) thecourts shall be strengthened to enforce constitutional rights; otherwise ab-stract constitutional statements are merely a bill of rights in a book.

The American historian Franz Michael provides a Western notion ofthe Rule of Law which we may use to compare to the Chinese concept oflegality, stating:

374

Rule of law is the very foundation of human rights. In the Western legal tra-

dition, law is applied equally to all; it is binding on the lawgiver and is

meant to prevent arbitrary action by the ruler. Law guarantees a realm of

freedom for the members of a political community that is essential to the

protection of life and human dignity against tyrannical oppression and to

the regulation of human relations within the community.3

In traditional Chinese society, however, the emperor possessed absolutepower over his people. He was able to “put his people to die and separatechildren (from their parents)”4 at his will. Under the despotic government,no balances and checks were designed to restrict the emperor’s power.5

Law was merely a tool of ruling, employed to protect the ruling class andpunish common people if necessary. According to Confucianism, in prin-ciple criminal punishments should not be imposed on government offi-cials, but only on common people. The enforcement of law was not equalfor all.6 No independent courts were established apart from the executivebranch, and lawsuits were tried by county magistrates, or xian-tai-ye, whohad charge of both administrative and judicial affairs. In the trial system,no specific rules concerning trial procedure were available because allcases were decided by these “parent judges” (fu-mu guan) who were sup-posedly able to find the facts and make correct decisions, torturing the ac-cused if necessary to elicit his confession.7 In other words, in traditionalChinese society, the power of the emperor was absolute and the highest;the law was primarily focused on ruling the common people; legal proce-dures for preventing public officials, including judges, from abusing theirpowers were secondary and insufficient; the law was merely a tool of theruling class; and the idea of human rights did not exist at all.

These traditional Chinese legal concepts are far from Western ideas ofthe Rule of Law that were gradually imported into China at the end of theManchu dynasty and the beginning of the Republic of China that was es-tablished in 1912. The Nationalist Government (Kuomintang, or KMT)that came to power in 1928 consistently gave lip service to the Rule of Lawand sought to erect a formal European-style legal system. Even after theKMT regime failed in 1949 and moved its capital to Taiwan, Chiang Kai-shek declared his determination to carry out the Rule of Law and democ-racy as a weapon to defeat the Communists. Under the state ideology de-rived from Sun Yat-sen, the Three Principles of the People (san-min chu-i)in Taiwan, Chiang claimed to pursue nationalism and socialism, as well asdemocracy, under the Rule of Law. This meant the KMT under Chiang

The Rule of Law in Taiwan 375

was ideologically committed to building a political system “of the people,by the people, and for the people.” Indeed, when addressing the people atevery National Birthday ceremony, in Taiwan, Chiang did not hesitate toemphasize his supposed steadfastness in implementing the Rule of Law.Thus, he purported to respect the Constitution, resorted to statutes andregulations to set in motion his policies, and brought disputes to thecourts for decision.

Nonetheless, Chiang’s alleged commitment to the Rule of Law did notguarantee that his regime would respect it in practice. For example, underhis authoritarian rule, Taiwan’s courts were not politically independent,human rights were rarely protected, and equal justice under law remaineda remote dream.

Meanwhile, traditional Chinese legal culture did not cease to influenceordinary Taiwanese people even while the Western concept of the Rule ofLaw, first brought to Taiwan by Japanese colonialism (1895–1945), contin-ued to be transplanted by the intellectual elite. It is essential to investigatethe legal culture issue when exploring the Rule of Law in Taiwan.

This paper demonstrates that a regime’s ideological commitment to theRule of Law is far from enough. The crucial ferment contributing to theRule of Law in Taiwan is rooted in its socio-economic change and theawakening people that change has produced. Nonetheless, although socialchange has forced the state to implement the Rule of Law, it has not yetequipped common people with the Rule of Law idea. Traditional legal ide-ology continues to dominate the people’s mind. In Taiwan, a double two-tier system has developed with respect to the evolution of the Rule of Law.The first two-tier system refers to the Constitutional Court’s determina-tion to carry out the Rule of Law despite insufficient legal services in thelower court system and in legal aid to society. The second two-tier systemrefers to the Western concept of the Rule of Law prevalent among intellec-tual elite in government despite the continuing strong impact of tradi-tional legal culture on common people.

After depicting Taiwan’s recent political transition, this paper examinesthe state of Rule of Law under the KMT authoritarian rule, where itsvague ideology masked the regime’s absolute power over the law and thepeople. The paper then discusses the Rule of Law after Taiwan’s democra-tization, focusing on how the Taiwanese judiciary exercises its authority tobring the government under its control so as to curtail the state’s wide dis-cretionary powers. It also investigates the extent to which individual rightsare reinforced through court decisions. Finally, the paper explores the

376 t s u n g - f u c h e n

meanings of the Rule of Law for the people, which includes the public’sperception of the courts and the law, as well as the public’s access to thelegal system. It demonstrates that, while the Western concept of the Ruleof Law has been sincerely adopted and even improved by the state, tradi-tional Chinese legal culture still dominates common people. Moreover,equal access to the justice system in Taiwan has not been fully realized.

I. Taiwan’s Transition

Prior to exploring the current state of the Rule of Law in Taiwan, it is de-sirable to review Taiwan’s political and legal transformation from an au-thoritarian regime to a liberal democratic country. The Kuomintang tookover Taiwan following the Japanese defeat marking the conclusion ofWorld War II in 1945. After his ruling system had “crumbled like soil col-lapsing and a tile being shattered” in China in 1949, Chiang Kai-shek at-tempted to revitalize the KMT on Taiwan through launching a campaignto reform the party between 1949 and 1952. By this reform Chiang in-tended to enable the KMT to fight successfully his deadly rival, the Chi-nese Communist Party (CCP). In order to “use the Communist methodsand their techniques to overcome them,” the KMT reformed itself into aLeninist-style party state, under which its Central Standing Committee re-sembled the Communist Politburo and state administrative organizationswere shadowed by party apparatus. The security agencies were reorga-nized into a security apparatus similar to the Soviet KGB, and even theYoung Chinese Anti-Communist National Salvation Corps imitated theCommunist Youth League.8

To carry out its authoritarian rule in Taiwan, in May 1949 the KMT im-posed martial law on the pretext of national security and economic sur-vival. Martial law prohibited people from organizing political parties anddeprived them of freedom of speech, assembly, association, and commu-nication. Numerous special criminal laws with severe punishments werepromulgated to eliminate rebellion, sedition, and other crimes. In spite ofChiang Kai-shek’s constant declaration of the Rule of Law, these speciallaws invariably infringed upon the rights of the people in the name ofpublic security, rendering the protection of individual rights under theConstitution nothing more than words on paper.

During the 1980s, the political situation in Taiwan changed. TheKMT regime lost its status in the international arena as the legitimate


government of China. Since retreating to Taiwan, the KMT had faced theconstant threat of invasion from the PRC. Its ultimate dependence on theUnited States to ward off a full-scale invasion from the PRC appeared tomake it extremely vulnerable when the United States switched recognitionfrom the ROC to the PRC on January 1, 1979. This virtually completedTaiwan’s diplomatic isolation from the international community. TheKMT then had to turn to the people of Taiwan to establish its legitimacy.This led the regime to adopt a new policy of Taiwanization, namely, re-cruiting Taiwanese elite into its power structure.9

Moreover, the KMT encountered a forceful resurgence of domestic po-litical opposition. After a temporary setback in the wake of the FormosaIncident of 1979, which led to more than 100 opposition leaders being ar-rested and sentenced to prison, the opposition forces regrouped, regainedtheir momentum, and united under various forms of quasi-party organi-zations. Beginning in 1984, they began to challenge the regime on the sen-sitive issues of constitutional reform, Taiwanese identity, self-determina-tion, martial law, and the full election of central representative bodies.10 Inthe face of the opposition’s intensified challenge, the KMT regime lost itsresolve to use coercive measures against the opposition. In 1985, ChiangKai-shek’s son and successor, Chiang Ching-kuo, proclaimed that Taiwancould no longer be ruled by the military but instead should be ruled underthe Constitution. In 1986, a formal opposition party, the Democratic Pro-gressive Party (DPP), was allowed to be formed, and in 1987 martial lawwas lifted. For constitutional reform, Chiang announced that “only theConstitution was our fa-tong, or constitutional continuity, and reformingthe central representative bodies was the sole correct way to be consistentwith the Constitution.”11

The KMT could not ignore the sustained economic growth and thesocio-economic changes unleashed by growth that forced the state tochange its orientation. The remarkable economic growth meant that percapita GNP rose from US $167 in 1953 to US $3,784 in 1986, the yearwhen democratization began, and to US $10,566 in 1993.12 Such gains inincome were accompanied by relatively equal income distribution, so thatthe middle class expanded to about one-third of the total adult populationby the 1980s. The middle class favored political reform and democratiza-tion and helped to fuel Taiwan’s growing social movements.13 Moreover,the decline of the regime’s ability to control interest groups and workersalso contributed to the formation of radical social movements. Manygroups and their leaders derived income and resources from the private


sector of the economy, thus reducing the patronage and control of the au-thorities. Although laborers accounted for 41.3 percent of workers by1981, the KMT could not keep tight rein on them because most workerswere prohibited from establishing labor unions. Meanwhile, the regimecould not grasp self-employed workers, workers in the “informal” econ-omy, and most of the small and mid-sized business people who accountedfor 85 percent of Taiwan’s businesses.14

As the regime’s control loosened and the middle class emerged, a strongcivil society formed to fight for the people’s civil rights and welfare,demonstrated by the upsurge of protest activities from the early 1980s on.These social protest activities exploded across the island in the form of cit-izen petitions, demonstrations, wildcat strikes, civil disobedience, andriots. Between 1983 and 1988, 2,894 protest activities took place. Of these,734 took place in 1987 and 1,172 in 1988.15 They included seventeen typesof social movements such as consumer movements, environmental pro-tection movements, women’s movements, aborigine human rights move-ments, and labor movements.16 These new, diversified social movementsforced the KMT to gradually shift its agenda to build a democratic state.

Once the train began running, there was no chance to stop it. Rather, itaccelerated. After an opposition party was formed and martial law waslifted, the KMT initiated a series of political and constitutional reformstransforming Taiwan into a democratic country. In 1990, President LeeTeng-hui, who had succeeded the late Chiang Ching-kuo, convened a Na-tional Affairs Conference to consolidate the support for constitutional re-form.17 After this conference, the “Temporary Provisions for the Period ofMobilization to Suppress the Communist Rebellion” were repealed, imply-ing that the KMT gave up military struggle with the PRC. Article 100 ofthe Criminal Code was abolished, freeing dissidents from the threat of ar-rest and imprisonment for “seizing the state territory” when they advo-cated Taiwanese independence. The Constitution of 1947 was repeatedlyand extensively amended in 1991, 1992, 1994, 1997, 1999, and 2000, effec-tively resulting in a new Constitution. The power to dissolve political par-ties was transferred from the executive branch to the ConstitutionalCourt. Most of the legal obstacles that hindered the normal functioning ofrepresentative democracy were removed with all life-long mainlander rep-resentatives in the National Assembly being forced to step down at the endof 1991.18 In 1996, the President of Taiwan was elected through popularelection for the first time, and in 2000 the former opposition party, theDPP, won the presidential election and became Taiwan’s ruling party.


Recently, along with the political democratization, legal reform hasbeen taking place and individual rights are being improved. While theConstitution of 1947 provided extensive political, economic, and socialfreedoms, the newly passed constitutional amendments have further en-hanced other civil rights such as the elimination of gender discriminationand the promotion of aboriginal interests.19 It should be emphasized againthat abstract constitutional provisions are not a real guarantee of individ-ual rights. The old Constitution purported to protect a large number ofindividual rights, but in reality the KMT regime issued numerous statutesand regulations that oppressed individual rights in the name of anti-Com-munism.

In Taiwan’s past, the KMT ruling group had omnipotent powerthroughout all corners of society. The lawmakers in the National Assembly,mostly mainlanders, were not subject to re-election prior to 1992, and theLegislative Yuan, exercising general legislative power, was taunted as “a leg-islative bureau of the Executive Yuan,” the executive branch that exercisespower with respect to the administration of the state, in that it was entirelycontrolled by the KMT. As a result, any statutes proposed by the executivewere rubber stamped by lawmakers. With respect to the judiciary, a high-ranking KMT official once publicly asserted that “the courts belong to theKMT.” The separation of powers delineated under the Constitution wasnonsense. There was no Rule of Law, but rather rule of the KMT.

These regrettable experiences, nonetheless, have been changed to alarge degree through Taiwanese political democratization and social plu-ralization. Taiwan is no longer under the “rule of men,” but rather the“rule of law.” In Taiwan today, the judiciary is able to exercise independentauthority; the political power is subordinate to the law; and human rightsare proclaimed to be the ultimate value of Taiwanese society. Meanwhile,the government endeavors to devise a court system convenient for thepeople and to recruit more attorneys to provide legal services, with the in-tent to expand common access to the law. Nevertheless, some problemsstill remain, particularly with respect to the quality of legal services avail-able to common citizens.

It is worth noting the dynamics of political and legal change during thelast two decades in Taiwan. From the mid-1980s on, the opposition party,DPP, successfully instigated a large number of social and political move-ments, which functioned as an outside force to push the KMT to graduallychange its role into that of a reformer. Within the KMT party, however, adivision formed between old, conservative members and new reformers,


rendering the KMT unable to undertake a full-fledged reform scheme. Inthe course of acting as a reformer, the KMT could not fully relinquish thepower of its old members.20 Consequently, as it initiated its reform pro-gram, some old KMT ideology remained in the statutes and regulations,which were constantly challenged by the Constitutional Court. The Con-stitutional Court was established by the KMT regime and was once a toolof the KMT party. Nonetheless, the Court built itself into a powerful judi-cial organ that has used the law to eradicate KMT ideology. This develop-ment was accompanied by recent fierce social change in Taiwan.

II. The Rule of Law under KMT Authoritarianism (1945–1985)

As Chiang devoted himself to mainland recovery from his base in Taiwan,he engaged in an ideological war against the Communists. In Chiang’sopinion, Mao’s Communists were violent bandits who killed people at willand were the most horrible evil in the world. In the struggle with theCommunists, ideological war was necessary in addition to military war.His mainland recovery strategy depended on military actions thirty per-cent and “political war” seventy percent. For the political war, the ThreePrinciples of the People was set as the official ideology of the party and thestate.21 As we have seen, this ideology required the KMT to pursue nation-alism and socialism, as well as democracy, and Chiang organized the KMTinto a “democratic revolutionary party.” Under the “democratic” element,the state had to abide by the normal rules of democratic politics, eventhough the “revolutionary” element indicated a mission to recover Main-land China by any possible means.22 As a result, while Chiang organizeddictatorial power for himself in the name of revolution, he still felt obligedto invoke the Rule of Law on paper.

Chiang stated: “The communists were inclined to abuse common peo-ple. Our mainland comrades were eagerly hoping to be saved so as to re-store their freedoms and human rights and to enjoy democratic livesbased on the Rule of Law. Our legal reform aimed to develop the Rule ofLaw enshrined in the Three Principles of the People, which was an essentialtask for destroying the communist tyranny in terms of political war.”23 Inother words, implementation of the Rule of Law was a tactic to defeat theCommunists. He insisted that “the democratic constitutionalism based onthe protection of human rights and freedoms was the foundation to defeatMao’s bandits who lost humanity and enslaved (people) with violence.”24


Chiang’s Rule of Law and democratic constitutionalism was not thesame as that of the West. Although he asserted that both the people andthe government were bound by the law, and everyone was equal before thelaw,25 what he really meant was that the government ruled according tothe law. He asked public officials to “do research on the statutes” and toflexibly enforce the law. He asserted that high-ranking officials had tostrictly supervise their subordinates with clear rewards and punish-ments.26 But his Rule of Law was nothing more than a government run ac-cording to the law, rather than a government governed by law and underit. Hence, the law was merely an instrument for public officials to run thegovernment.

Although Chiang enthusiastically advocated individual liberty, his ver-sion suggested a kind of freedom that is “organized and disciplined,”where individuals had to sacrifice their freedoms for the sake of the free-dom of a society as a whole.27 He claimed constantly that, while the peoplein the free area (that is, Taiwan) enjoyed fundamental rights, the mainlandcomrades had lost them and those rights had to be restored. Rescuing themainland comrades from deprivation of their human rights was the mostimportant mission. Anything else would be secondary.28 That is, it wouldbe desirable to restrict the human rights of the Taiwanese if necessary inorder to emancipate the mainland comrades.

In the same vein, while Chiang declared the independence of the judi-ciary as the root of the Rule of Law, he did not forget to remind judgesthat they had to do their duty because they could thereby contribute toerasing potential worries of the army in the frontline. Thus, “for the stateand the nation, there was no difference between judicial staff and soldiers,for both were fighters for the revolution.”29 It seems quite clear that allChiang’s efforts including military and legal actions taken by him were in-tended to recover Mainland China and to save mainland comrades even atthe expense of the rights of the Taiwanese.

Constitutionalism in Chiang’s mind really had nothing to do with theWestern style Rule of Law. According to him, taking the Constitution of1947 back to Mainland China was the main goal of his regime because thisConstitution had been established by the representatives elected by main-land comrades, who would enjoy the benefits of the Constitution after themainland’s recovery. Accordingly, for the integrity of the Constitution, theConstitution had to be maintained intact and subject to no revision.30

Preserving the Constitution as the basis for the regime’s legitimacy to ruleChina was then called fa-tong, or constitutional continuity.


In order to assure the fa-tong and Chiang’s urgent need to collect allpowers in his hand, however, as early as 1948, just four months after theConstitution took effect, his regime passed the “Temporary Provisions forthe Period of Mobilization to Suppress the Communist Rebellion.” Thisexpanded his power and “justified” non-implementation of the democra-tic procedures stipulated in the Constitution. These provisions postponedparliamentary elections until China as a whole (both the mainland andTaiwan) could have nation-wide free elections. Consequently, all the exist-ing legislators, mainly mainlanders, retained their seats indefinitely.31

Another salient example of Chiang’s lip service to the Rule of Law washis third-term presidency. Chiang was required to retire in 1960 for he hadby then served two terms, the maximum permitted in the Constitution. Touphold the Constitution and to prolong his presidency legally, the Tempo-rary Provisions needed to be amended so that the original constitutionallimit would not apply during the “period of the Communist rebellion.”32

When amendment of the Temporary Provisions was chosen as a way toovercome the constitutional barrier, it required a two- thirds quorum ofNational Assembly delegates, that is, 2,030 persons, to endorse the amend-ment. It was an impossible number of delegates to assemble at that timebecause most delegates had remained on the mainland or gone abroadrather than to Taiwan. The Constitutional Court was invoked to resolvethis problem. In response, the Court decided that for quorum purposesthe total number of National Assembly delegates should be counted onthe basis of the number of delegates who were duly elected under the lawand were able to answer summons to attend the meetings of the Assem-bly.33 Based on the reduced number of delegates, the Temporary Provi-sions were revised, and Chiang was smoothly re-elected and served histhird-term presidency and more.34 Basically, the Court was no more thana rubber stamp of the KMT regime at that time.

The Constitutional Court performed as a tool of the regime in anothercase relating to the National Assembly representatives. To maintain fa-tong,preserving both the 1947 Constitution and the continued service by theNational Assembly representatives elected in China was politically indis-pensable. Not only was the Constitution unavailable to be amended inspite of its inadequacy for Taiwan, the central representatives were also toremain free from re-election. The thorny issue was that all the terms ofthese parliamentary representatives should have terminated in 1954 ac-cording to the Constitution. Since maintaining the Constitution intact wasa state policy, the Court was relied on to interpret the Constitution in a


way that would keep the central representatives continually in their seats.The Court asserted that, because of national catastrophes, elections fortheir second term could not take place, and thus the first- term parliamen-tary representatives were allowed to continuously exercise their authorityuntil the second-term representatives were duly elected and convenedunder the law.35 This decision in effect created life-long representatives,and the continuing power of the mainland-dominated National Assemblyover Taiwan acquired constitutional legitimacy.

In the face of the Communist threat, the KMT coercively centralized itspower in the name of building a strong base from which to recover themainland. It first imposed a legalized system of national mobilization tosuppress Communist insurgency, including the implementation of martiallaw and the enforcement of a variety of statutes aimed at suppressing re-bellion and maintaining a stable economy.

The world’s longest-lived martial law was imposed on Taiwan between1949 and 1987. The Taiwan Garrison Command headquarters was createdin 1950 to take charge of all matters concerning the implementation ofmartial law, which established ten categories of criminal offenses by civil-ians to be disposed of by military tribunals. According to a prosecutor,military tribunals decided 29,407 cases involving civilians, including 150political cases, in which approximately 1,000 political offenders were jailedand 265 civilians sentenced to death.36 Many political offenders werewrongfully charged, and in the 1950s they were all secretly arrested andtried, leaving their families without knowledge of their whereabouts forone or two years. During that period, “everyone had a small GarrisonCommand in his or her mind,” and the society was filled with a sense of“white horror.”37

Pursuant to the martial law, from 1949 to 1970, the Defense Ministryand the Garrison Command issued numerous decrees restraining suchcivil rights as the right to publish, the right to privacy, the rights to the freeexercise of religion, speech, and assembly, the right to petition, and theright to give academic lectures.38 The freedom of speech, for instance, wasseriously curtailed. Any statements or publications unfavorable to theregime could be deemed seditious. Because broadcast media and newspa-pers fell completely under KMT control, magazines provided the onlyavailable and effective tools for the opposition to promote dissent. Theimportance of the magazine to the opposition was not merely as an in-strument for propaganda, but also as an organizational network and a tool


to be used for recruitment. That is to say, a large and well-financed maga-zine might be a substitute for the core of a political party.39

The first notorious suppression of a magazine was the Free China Fort-nightly incident in 1960. This magazine severely criticized the KMT andadvocated freedom and democracy in Taiwan. It challenged the state poli-cies and Chiang’s presidency tenure, and in the end sought to establish anopposition party. The Free China Fortnightly movement was suffocatedwith the arrest of its editor, who was charged with attempted treason andfailure to inform the authorities that one of his employees was a “commu-nist spy.”40 The most well-known suppression of a magazine was the For-mosa incident in 1979, the product of a landmark opposition movement.Formosa was published as the dissidents’ political forum, but its offices ranlike party organizations. They sponsored mass rallies leading to high ten-sion between the dissidents and the government. The final crackdowncame in “the Kaohsiung incident” when almost all the leaders of the oppo-sition movement were arrested and sentenced to long prison terms forsedition or inciting the crowd to riot.41

As the publication of magazines was so important to the opposition,the Publication Act was frequently invoked to hamper it. Under this act,any publication could be banned or suspended for one year if involved inrebellion or the crimes of destroying social order or instigating others todo so. This Act raised a constitutional issue because it enabled the execu-tive branch instead of the judiciary to determine whether the publicationin question had to be banned. The Constitutional Court endorsed theregime’s stance by asserting in 1964 that limitations on individual rightswere permissible as long as they were imposed to maintain the social orderor to protect the public interests.42 As a result, the state continued to con-fiscate any publications that might “mislead the public and discourage thepublic morale.” According to an American report, in 1985 seventy- fivepercent of the publications that opposed the government were banned,and in 1986 almost all opposition magazines were confiscated.43

III. The Rule of Law after Democratization (1986–present)

As noted above, Taiwan underwent rapid political change after 1986.When martial law was lifted in 1987, many social movements took place.It seemed that suddenly everyone woke up to claim his or her rights.


Meanwhile, after phenomenal economic growth during the previous threedecades, many side effects such as environmental pollution and labor-management problems emerged. People were no longer willing to sacrificetheir own interests for social, common benefits. As authoritarian rulebegan to decline, the public started to view the government as an institu-tion able to be challenged. The public officials were no longer viewed assuperior to the common people, and it was becoming a common idea thatthe government had to be governed by the law as were the people. A greatnumber of disputes between the government and the people came about,making it necessary to rely on courts to settle them. However, the justicesystem had been stigmatized as the tool of the KMT regime and withoutindependence. The judiciary, therefore, had to establish its power and itscredibility.

The Powerful Judiciary

In Taiwan, the highest judicial organ of the state is the Judicial Yuan, com-prised of fifteen Grand Justices with a President and a Vice-President ap-pointed among them. The Grand Justices constitute the Council of GrandJustices, as well as the Constitutional Court.44 The Constitutional Court isthe sole organ with judicial review power in Taiwan. It is entrusted to pro-tect the rights of the people and is theoretically “the guarantor of the Con-stitution.” This Court, however, like other courts, was once the tool of theparty-state regime as indicated above.45 Yet, in the course of Taiwan’s de-mocratization, the Constitutional Court has become the most importantorgan for carrying out the Rule of Law. For example, it has established re-quirements for the administrative agencies to issue regulations, demandedthat the legislature implement Court decisions, and even declared certainconstitutional amendments of 1999 unconstitutional! The people havecome to admire the Court’s prowess as the defender of the law and itsclear message that the government itself is subject to the law.

The German principle of legality (Rechtsstaatsprinzip) requires that ad-ministrative power be exercised in accordance with laws enacted by thelegislature. This principle is embodied in the Republic of China’s 1947Constitution. Chapter II of the Constitution provides for comprehensiverights and freedoms which Taiwan’s citizens theoretically enjoy. Article 23of this chapter further insists that all these rights and freedoms may be re-stricted only by statute laws “to prevent infringement upon the freedom


of other persons, to avert an imminent crisis, to maintain social order,and to advance public welfare.” That is, the power to restrict individualfreedoms is solely entrusted to the legislature based on constitutional re-quirements.

The principle of legality, however, was not enforced by the KMTregime. Because most lawmakers were KMT members, the legislature usu-ally endorsed the executive’s proposed laws. Further, the legislature mostlyvested a large amount of its power in the executive through the delegationof power to the administrative agencies. This broad delegation of powerwas emphasized by Chiang Kai-shek, saying that “the legislators had tounderstand the party’s and the government’s resolution. . . . They did nothave to be strictly restricted by statutes and regulations, but should takeinto account what was beneficial to national politics, economy, and soci-ety. They should delegate anything that can be delegated [to the executivebranch].”46 In the same vein, for most legal scholars in Taiwan’s past, theRule of Law was interpreted to mean rule by “statute laws and regula-tions.” That is, the executive was allowed to curtail individual rights notonly under statute laws but also under regulations or executive orders.47

As a result, laws enacted by the legislature typically included such provi-sions as “the promulgation of an enforcement rule is entrusted to (spe-cific agencies),” and the executive branch enjoyed wide discretionarypower, empowered to issue any regulations it preferred. The net result isthat individual rights were infringed upon whenever it was deemed neces-sary.

In 1963, for instance, under an executive order, the Keelung Bureau ofHarbor Affairs confiscated a sailor’s pamphlet certifying the sailor’s identi-fication and his sailing record. Possessing the sailor’s pamphlet was a re-quirement to be a sailor, and thus any sailor losing the sailor’s pamphletwould be deprived of his job. Such confiscation restrained the sailor’s rightto work protected by the Constitution, but the Administrative Court heldthat “the sailor’s pamphlet could be confiscated through an executiveorder since it was issued under the executive power.”48 It is evident that theexecutive branch was able to govern the people at its will.

Some three decades later, the Constitutional Court became determinedto curtail the broad discretion of administrative actions through demand-ing clear legislative delegation. In the 1995 case of The Factory Closing-Down, for instance, the petitioner and his family produced bean productsat their home. The local government decided that their setup was equiva-lent to a factory, which was required to apply for registration under an ad-


ministrative rule. The local government thus ordered the petitioner toclose down his business because of his failure to register. The Constitu-tional Court declared the administrative rule null and void, observing thatunder the Constitution, the administrative act of closing down a factoryconstituted a limitation on civil rights, which could be governed only bystatutes. The Court found further that an executive order would be valid“only if it was delegated by a statute that provided clear and specific pur-poses, contents, and scope. Without such clear legislative delegation, any ex-ecutive order shall be void.”49

The Court not only put the executive branch under its control, but alsodemanded that the legislature follow its decisions. The most salient exam-ple is provided by the cases of the Educators. Under the Constitution, noone can serve as a public official without passing a public competitive ex-amination. The Statute for the Employment of Educators provided, how-ever, that incumbent school personnel who did not pass public examina-tion could continuously serve in office. The Court held in 1991 that thestatute was intended to protect the vested interests of incumbent schoolpersonnel, but they could only work for the schools they already wereserving unless they passed specific examinations.50

The holding, however, was overruled by the legislature, which revisedthe challenged statute in 1994. The revised statute provided that incum-bent school personnel were permitted to transfer among different schools,a provision apparently in contravention of the Court’s decision. TheCourt did not hesitate in 1996 to insist that the legislative power could nottransgress the Constitution and the Court’s decisions. According to theCourt, the legislative revision of this statute would have conferred specialstatus on incumbent personnel without requiring them to pass specific ex-aminations and to demonstrate the same qualifications as other appli-cants. Such a distinction violated the principle of equality enunciated inthe Constitution and ran afoul of the tenor of the Court’s prior decision.The article of the challenged statute was thus held void.51

The Court instigated a fierce controversy over its authority when de-claring certain constitutional amendments of 1999 unconstitutional. Be-fore that time, under the Constitution, the National Assembly was the soleparliamentary organ entrusted with the power to amend the Constitution.In 1999, the National Assembly voted anonymously to amend the Consti-tution in order to prolong the terms of its members, as well as to changethe election procedure for its members. These amendments provokedstrong opposition in society because the members of the National Assem-


bly had amended the Constitution for their own benefit. On the petitionof certain legislators, in 2000, the Court held these amendments unconsti-tutional and null and void. The Court asserted that the procedure toamend the Constitution shall be publicly known, and that the principle ofa republic, the principle of citizens’ sovereign powers, and the principlesconcerning the protection of individual rights and the separation of pow-ers were all of essential importance. These essential principles constitutedthe basis for the constitutional order of a liberal republic, without possi-bility of amendment, otherwise the constitutional order could be de-stroyed.52

Given that constitutional amendments become incorporated in theConstitution, the Court’s decision raised the issue as to whether the inter-preters of the Constitution had the power to review these amendments.53

In spite of intensive debates, the National Assembly re-amended the Con-stitution accordingly one month after the decision, with the result thatmost of its powers were rescinded, reducing the National Assembly to ameaningless organ.

Since the Court was able to declare constitutional amendments uncon-stitutional, it was hard to identify any governmental actions not subject tojudicial review. The Court’s brave decisions to fight the executive, the leg-islature, and the National Assembly demonstrated the judiciary’s powerfulauthority and its independence. Political power in no way retained influ-ence on the judiciary.

As the Constitutional Court was seeking to expand its power overother government branches, the independence of the justice system wasgradually reinforced. In imperial Chinese history, no judges were inde-pendent of government administration. The executive and the judiciarywere combined. Therefore, the independence of the judiciary was absentin the traditional Chinese legal system. A formally separated court systemwas set up only after China underwent legal-political reforms at the veryend of the Manchu Dynasty. In principle, the KMT regime accepted theWestern type of legal system, including its court system. Nonetheless, itput the district courts and high courts, as well as prosecution agenciesunder the supervision of the Ministry of Justice. Accordingly, the execu-tive, ruled by the KMT, was able to effectively interfere with the courts. Toestablish the independence of the judiciary, the Constitutional Court heldas early as 1960 that high courts and their lower courts had to be underthe jurisdiction of the Judicial Yuan, instead of the executive branch.54 Infact, however, the lower courts did not get rid of the supervision of the


executive in terms of their organizations until 1980, when the KMTregime began to initiate legal-political reforms under international pres-sure.

In addition, the military court was subordinate to the executive branch.Under the Military Trial Act, the Ministry of Defense was the highestorgan over military trials, and its high-ranking officers had power to ap-prove or remand military court decisions. In other words, soldiers werenot allowed to appeal to the civil courts, and the executive branch haddominant power over military courts, rendering judges in military courtsnot independent at all. These provisions distinctly violated the Constitu-tion, which authorizes the Judicial Yuan as the highest judiciary organ andguarantees the independence of judges without any interference.55 TheConstitutional Court thus held in 1997 that such provisions of the Mili-tary Trial Act violated the constitutional judiciary system and had to ceasetheir binding effects in two years.56

Not only were the lower courts and military courts long subordinate tothe executive, but the judiciary’s expenditures were also subject to the ex-ecutive’s review. Since the executive branch had final say on the judicialexpenditures, it was inevitable for the executive to step into judicial affairs.The independence of the judiciary from the KMT was thus unthinkable.Due to social change, some reform-minded judges launched a campaignfor an independent judiciary budget in the early 1990s. Finally, the Consti-tutional Amendment of 1997 provided that “the Executive Yuan was notallowed to eliminate or reduce the judiciary budgets initiated by the Judi-cial Yuan, but could add its opinions about the national total budget forthe Legislative Yuan’s review.”57 This amendment extensively expanded thejudiciary’s power over its own budget.

The Protection of Individual Rights

To consolidate power and to maintain social order the KMT regime de-prived people of their individual rights. Its measures included arrestingany potential dissidents and criminals, as well as undertaking so-called“mind-control” activities. Those measures had a substantial impact on thepeople’s lives and property and greatly inhibited social progress. TheKMT’s power to manipulate social activities, however, has been strictlyconfined by the Constitutional Court since the late 1980s, therebystrengthening Taiwanese human rights.


(1) The Rights of the Accused

The then Premier, Chiang Ching-kuo, once stated in 1977: “The state ad-ministration was focused on maintaining social stability through the Ruleof Law. . . . For dealing with criminal cases, the principle was ‘rapid trialand rapid decision with heavy punishments and heavy fines.’”58 Many dic-tatorial regimes believe that the best way to maintain social order is to ar-rest, without regard for reasonable legal procedure, any potential or actualcriminals even if only misdemeanors are involved and that the most effec-tive method to deter crime is to severely and immediately punish the ac-cused, with no chance of appeal. And, if left to their own devices, law en-forcement officials throughout the world believe that the best way to ob-tain a confession is to detain the accused as soon as he is arrested and keephim in detention until he gives in. These strategies were widely employedby the KMT state during its authoritarian rule.

Article 8 of the Constitution guarantees individual freedom, and no tri-als or punishments are allowed except by a court after due process of law.Nonetheless, a police law enacted in the 1950s to punish misdemeanorsauthorized police officers to arrest, prosecute, and punish offenders with-out judicial participation. Punishment included detention for up to twoweeks, forced labor up to sixteen hours, and reformatory education. Themisdemeanors punishable under this police law included 136 ambiguousoffenses, rendering people vulnerable to arbitrary arrests and punish-ments. While the Constitution required that the accused in a serious crim-inal case be sent to a court within twenty-four hours of arrest, the policeusually charged the accused with an offense under the police law insteadin case they were unable to investigate the charge within the regular crim-inal timeframe. With this maneuver, the police could easily detain the ac-cused for seven days. About eighteen percent of Taiwan’s population waspunished under this police law, and, from 1969 on, over fifteen percent ofall offenders were given detention under this law.59

Although the KMT state effectively used the police law to fight gang-sters in order to maintain social order, nevertheless in 1990 the sanctionsof detention, forced labor, and reformatory education dispensed under thepolice law were declared null and void because they imposed confinementin violation of the Constitution.60

While the intent of the police law was to punish minor offenders, theAnti-Hoodlum Law of 1985 was designed to incarcerate violent hoodlumsin “reformatory education,” where they were forced to work and deprived


of nearly all civil rights. In practice, the decision to charge an individual asa hoodlum depended solely upon police discretion, because the magis-trates who were formally responsible for imposing reformatory educationserved as mere rubber stamps for the police. The accused under this lawwere often subject to double jeopardy—sentenced to prison as criminalsafter a criminal trial in addition to receiving reformatory education.Moreover, the decision to incarcerate most suspects accused of beinghoodlums was based on confidential testimony of three secret witnesses,thereby offering police a chance to “produce” fake witnesses. In practice,therefore, many suspects were confined because of the police’s unfetteredadministrative maneuvers.

To invalidate the Anti-Hoodlum Law, the Constitutional Court invokedthe American doctrine of due process of law. According to the Court, itwas unconstitutional for the law under challenge to empower the police toarrest an accused without warrant, to use secret witnesses without right ofcross-examination, to impose reformatory education without a priorhearing, and to impose both reformatory education and imprisonmentwhere an individual was convicted of a crime. All these provisions of thelaw were inconsistent with the constitutional guarantees of physical free-dom and due process of law.61

After the Court delimited the powers of the police, it turned its atten-tion to the protection of the rights of the accused who were detained byprosecutors. Under the Code of Criminal Procedure, prosecutors had theauthority to detain an accused for up to four months during the investiga-tion phase prior to filing a formal indictment. Since prosecutors were re-sponsible for investigating and indicting criminal defendants, they wereinclined to detain first and seek evidence later. Detention became a tool tocoerce the accused into confession. Further, while the prosecutor and thedefendant ideally should carry equal weight before a court, the prosecu-tor’s power of detention resulted in substantial inequalities between theprosecutor and the accused.

Taiwanese prosecutors were viewed by both the government and thepublic as equivalent to judges. When the prosecutor’s power was chal-lenged, the government was shocked and embarrassed. Article 8 of theConstitution provides that individuals may be tried and punished solelyby a court of law in accordance with legal procedure, and that any individ-ual arrested or detained for committing a crime has to be transferred to acourt for trial within twenty-four hours. The prosecutor’s power of deten-tion was declared unconstitutional under this article, even though the


government strongly argued that for the prosecutor to share these twenty-four hours with the police was insufficient to investigate a criminal case,and that to deprive a prosecutor of the power of detention would impairsocial order.

In this case, the Court concluded that “the protection of human rightsis the highest standard of our contemporary cultural system and the com-mon principle of advanced civilized societies. . . . Physical freedom is thebasis of all freedoms, and other freedoms will be destroyed if physical free-dom cannot be rigidly protected.”62

Although crime rates were still high and maintaining social order re-mained the government’s main objective, for the Court the due process oflaw took precedence over all other concerns. Human rights have been de-clared to be a part of Taiwan’s cultural system. Arguably, any new law in-fringing upon individual physical freedom without requiring the usualcriminal process protections will be declared unconstitutional regardlessof any grounds to support that law. Indeed, while the Taiwanese militaryfell furthest from the judiciary’s jurisdiction because of the special statusof soldiers, the military court system was brought under the judiciary’s ju-risdiction in 1997 to assure the protection of an individual’s physical free-dom. That is, even a soldier is entitled to appeal his case to the civil courtsafter his military trial.63

(2) The Freedom of Expression

In addition to rigid control over people’s physical freedom, the KMT statesought to control people’s thoughts and to hinder all discourse that chal-lenged its ideology. According to the 1947 Constitution, freedoms ofspeech, teaching, writing, publishing, assembly, and association are allgiven to citizens, subject to restriction for the sake of public welfare andsocial order. To fully allow these rights, however, would have precluded theKMT regime’s ideological dominance.

After relocating to Taiwan, the KMT still claimed sovereignty overMainland China and was determined to restore its rule there. Thus, anti-Communism was a national policy, and Taiwan independence was a for-bidden idea. Any support for either Communism or Taiwanese indepen-dence was banned. Those who defied these policies were arrested. To rein-force the KMT’s ideology, the Assembly and Parade Act of 1988 decreedthat people were not allowed to proclaim support for Communism or ter-ritorial division when assembling or parading in public. Meanwhile, under


an executive order, any nation-wide associations were required to put“China” ahead of their names. That is, the word “Taiwan” was not permit-ted to form any part of a national association’s name.

Both the law and the executive order were challenged in the Constitu-tional Court. In 1998, the Court, based on the “clear and present danger”test of American constitutional law, declared the legislation an unconstitu-tional prior restraint on expression, saying:

Both article 14 of the Constitution providing freedom of assembly and arti-

cle 11 providing freedom of speech, teaching, writing and publishing are

freedoms of expression, which are the most important fundamental rights

in carrying out democratic politics. . . . To restrict the rights of assembly

and parade, the law has to conform to the principle of clarity and meet the

requirements of article 23 of the Constitution. . . . The Assembly and Parade

Law . . . that bans [public assembly and parade] based on [public] dis-

courses about supporting communism or territorial division empowers the

authority to investigate people’s political opinions prior to assembly and

parade. This infringes upon the freedom of expression provided for under

the Constitution.64

The Assembly and Parade Act contained two additional restrictions:that “it can be recognized from the fact that [the assembly or parade] mayendanger national security, social order, or public welfare,” and that “itmay endanger [others’] lives, bodies or liberty, or severely impair [others’]property.” The Court overruled these two restrictions because of their am-biguity, stating that it is unconstitutional for the governing authority toforbid assembly or parade merely based on possible occurrence of riskswith no clear and present danger.65

This case took account only of the protection of freedom to expressoneself, disregarding the government’s interests. It makes clear that theprotection of individual rights is preferable to imposition of a politicalideology. In the same vein, when the Taiwan Law Society (Taiwan FaxueHui) challenged the constitutionality of the executive order requiring“China” instead of “Taiwan” in its name, the Court found the order un-constitutional, arguing that the selection of a name for an association wasprotected as freedom of assembly, and that restrictions on this selectionhad to meet the requirements of article 23 of the Constitution, which al-lowed statute law alone to make such restrictions.66 Since then, a variety ofnation-wide associations have used “Taiwan” in their names, suggestingthat “Taiwan” is increasingly becoming identified as a nation.


To socialize the people of Taiwan with the KMT ideology, the party-state regime assumed tight control over the education system. Under KMTparty-style education, main educational objectives included instilling Chi-nese nationalism, patriotism, and morality. Political issues comprised themajor contents of textbooks in primary and secondary schools. Accordingto research, the subject of loyalty and obedience occupied 35 percent oftextbooks from the 1950s through the 1970s and 24.6 percent in the1980s. The topic of mainland recovery occupied 21.5 percent in the 1950s,over 15 percent between the 1960s and 1970s. Tributes to political leadersmaintained over 11 percent between the 1950s and the 1980s.67 Coursessuch as the “Three Principles of the People” and “Thoughts of Our Na-tional Father (Dr. Sun Yat-sen)” that dealt only with KMT political ideol-ogy were included in the upper grade school curricula. These subjectswere covered in the entrance examinations to colleges and in any selectionexaminations for public officials. Moreover, a military training programwas incorporated into the national curriculum and military officialsserved as staff in senior high schools and colleges from 1952 on. The mainpurpose of military training was not to teach military skills, but to educatestudents in KMT ideology and maintain campus security. Among thirteendeclared purposes of the military training course, only three were relatedto “military training,” while the others were all concerned with the KMT’sparty curriculum such as learning Sun Yat-sen’s and Chiang Kai-shek’s in-structions.68

With Taiwan’s democratization, the KMT began moving its offices outof university campuses in 1987. A new University Act was enacted to im-plement academic freedom and school self-governance. Nonetheless, theuse of education as a mechanism for ideological control did not diminishwith the promulgation of the new law. The KMT government maintainedthose political ideology courses as requirements for college students underan enforcement rule of the University Act. This requirement was evidentlydevised to maintain the KMT’s ideological hegemony. On the ground ofprotecting academic freedom, this enforcement rule was held unconstitu-tional. The Court ruled that freedoms of academic research, teaching, andlearning were guaranteed by the Constitution and the University Law.Government restrictions on the college’s self-governance had to conformto the principle of legality provided by article 23 of the Constitution. Theenforcement rule imposed a limitation on the college’s self-governancenot addressed by the University Act, thereby unduly interfering with free-dom of teaching, and therefore rendering it unconstitutional.69


The enforcement rule of the University Act also required that collegeshad to institute military training offices staffed by military officers. Thesemilitary training offices were to carry out KMT ideology and maintaincampus security, but would not be concerned with academics. Based onthe freedom of teaching guaranteed under the Constitution, the Courtheld the enforcement rule void because it ran afoul of the principle of col-lege self-governance.70

Where the KMT government made every effort to facilitate ideologicalsocialization among the people and students through restricting individ-ual rights, these relevant statutes and regulations have been constantly re-pealed because of their unconstitutionality. The KMT ideology no longerprevails over individual rights. People are allowed to air their opinions onCommunism or territorial division through assembly and parade. Theterm “China” is no longer symbolic of Taiwan as a nation. School coursesfor the sole purpose of education in political ideology are not required forcollege students; and military officers for KMT ideological training arebanned. The “mind- cleaning” measures initiated by the KMT governmenthave gradually been eliminated through court decisions. These develop-ments make clear that human rights prevail over government policy, andthat the government has to exercise its power under the Rule of Law.

IV. The People and the Rule of Law

Taiwan was ruled by Manchu China for more than two hundred years andtraditional Chinese legal culture had become prevalent throughout the is-land by the end of its rule.71 During Japanese colonial rule for fifty years,traditional customs and imperial Chinese law maintained their influenceon the people to a considerable degree.72 During the first four decades ofKMT control of the island, despite the KMT’s ostensible commitment tothe Rule of Law, traditional Chinese legal culture was still dominantamong public officials and judges. In the aftermath of Taiwan’s intense so-cial change, however, the courts and the government began to pay their re-spects to a genuine Rule of Law and took steps to realize it. Indeed, follow-ing the Constitutional Court’s decisions on the limitation of governmentalactions and on the protection of human rights, the basic principles of theRule of Law have prevailed in Taiwan. Nonetheless, traditional legal cul-ture seems not yet to cease its influence on the people. Their faith injudges and courts, which is significant to support for the Rule of Law, is


open to question. The protection of human rights has not been en-trenched in people’s minds. Moreover, access to the courts is still limited,given that litigation costs are high and legal procedures are time-consum-ing. Without further steps to improve the public perception of judges andcourts, to educate the people about human rights, and to facilitate citizens’access to the courts, the government’s determination to carry out the Ruleof Law will be extensively frustrated.

The Public Perception of the Court and the Law:Traditional Legal Culture Today

As Barry Hager puts it, “For the Rule of Law to prevail in a society, theremust be a general perception that law is fairly applied to all, without polit-ical, religious, or ethnic favoritism or corrupt inducements. The goal ofequal and fair application of the law is itself one of the core necessarycomponents of the Rule of Law.”73 He further indicates that the largerRule of Law objective is that “individuals should have particular faith inthe impartiality, objectivity and independence of judges and courts. If thatfaith is brought into question, then the underlying public support for theRule of Law is instantly and significantly damaged.”74 In other words, thepublic perception of judges and courts as just and independent is crucialto its support for the Rule of Law.

In the traditional Confucian legal system, the law was not equal for all.The aristocrats and common people were treated differently. Law was atool for the aristocrats to govern common people, and the former werenot bound or punished by the law to the same extent as the latter. Withoutpermission of the emperor, the judiciary was not allowed to arrest aristo-crats or public officials, not to mention to put them to trial. Even whenthey were sentenced to punishment under the emperor’s order, paymentof a fine or termination of their official position was often sufficient tosubstitute for their original sentences. Because of common interestsamong officials and their class ideology, most judges would favor aristo-crats and public officials over common people in lawsuits.75 That is to say,aristocrats and public officials were endowed with legal privileges thatcommon people did not enjoy. This tradition conveyed to the people thatthe law was not fair to them because of favoritism.

During the early period of Japanese rule, some colonial statutes in Tai-wan treated resident Japanese and Taiwanese differently. Low-rankingJapanese officials often favored resident Japanese in their disputes with


Taiwanese. The police often used illegal means of investigation, torturedTaiwanese at their will, and detained them arbitrarily.76 In the meantime,although Japanese colonial judges were considered honest, they had diffi-culty in remaining impartial when deciding criminal cases because of thespecial attention paid by the executive authority.77 In other words, tradi-tional Chinese legal culture, including unequal treatment by the legal sys-tems, was basically retained through Japanese colonial rule due to Japan-ese half- hearted implementation of Western law in Taiwan.

This unfavorable public perception of courts and law did not vanishwhen the KMT regime ruled Taiwan. On the contrary, Taiwanese judgesbecame notorious for their corruption after the Chinese government re-gained Taiwan, indicating that the wealthy had influence on the result ofcourt decisions. Although the corruption in the judiciary was well knownin society, the state never made efforts to erase this stigma, for the corrup-tion of the judges made them easily controlled by the KMT regime. Thatis, the regime could threaten judges with criminal charges if they failed tomake decisions following its instruction. The equal treatment under lawwas further impaired as judges’ rankings and salaries depended on a pro-motion scheme, which was in the hands of the KMT leaders. Althoughjudges enjoyed life tenure under the Constitution,78 the promotionscheme enabled high-ranking officials to exercise influence over judges,damaging the independence of the judiciary and the principle of equality.Further, government expenditures for the judiciary were subject to execu-tive branch review. Due to their final say on expenditures for the judiciary,KMT leaders were able to demand that the courts follow their instructionswhen making decisions. As a matter of fact, when public officials were in-dicted for corruption, most, if not all, of them were released in the endafter lengthy procedures. In Taiwan, there was a popular saying, “The ac-cused was always severely sentenced in the district court, while he or shecould eat pork and noodles (at home) after trial in the high court.” Thisimplied the corruption of judges and indicated that powerful accused, es-pecially public officials and the wealthy, were able to alter the result ofcourt decisions in the long run. Consequently, the public in Taiwan didnot trust the courts at all, and still does not today even though the Tai-wanese judiciary has become independent from political interference re-cently. This perception of distrust of judges is illuminated in the followingsurvey of Taiwanese people. Figure 1 reveals that, on an average, only fifty-two percent of Taiwanese people believed in judges and court decisionsfrom 1985 to 1999.


the public perception of judges

Do you believe that court decisions will be just if you get involved in criminal cases?

Year Area Strongly Slightly Slightly Strongly No Opinion Believe Believe Not Believe Not Believe

1985 Taipei city 14.9% 32.6% 22.9% 3.4% 21.7%Taipei county 22.5% 40.3% 17.1% 2.7% 17.4%

1995 Taiwan 7.2% 33.3% 34.1% 10.6% 14.7%

Do you believe that judges conduct just trials?

Area Strongly Slightly Slightly Strongly No Opinion Believe Believe Not Believe Not Believe

1999 Taiwan 3.2% 51.8% 28.6% 5.5% 10.9%

Sources: Yung-chin Su, Fazhi Renzhi Yu Taiwan Diqu De Zhengzhi Minzhuhua: Cung Renmin De Zhifa Xing-wei Tantao [Cognition of Rule of Law and Political Democratization on Taiwan: A Study on the Law-enforce-ment Behavior of People], 37, figure 2.3–1 (1997); Chung-wei Lee, Guoren Fazhi Guannian Renzhi ChengduZhi Diaocha Yanjiou [Investigation and Research on the Citizen’s Cognition of the Rule of Law], 71 (2000).

Traditional Chinese legal culture in Taiwan can be shown not only bythe distrust of judges and courts, but also by the disrespect for humanrights. For example, during China’s long imperial history, the punish-ments imposed by traditional Chinese officials in one era or another wereextremely cruel. The notorious “five penalties” included not only the deathpenalty but tattooing the face or cutting off the nose, leg, or penis of con-victed criminals. There were many horrible methods for the enforcementof the death penalty.79 These cruel methods of punishment derived from athinking that severe punishments had strong deterrence, which could beused as an effective instrument to consolidate the emperor’s power and toreinforce social stability. The belief in severe punishments as effective todeter offenders also existed in the people’s minds and practices. For in-stance, during the Manchu rule over Taiwan, a man frequently engaged instealing and gambling. His father consulted other relatives and then incar-cerated him in irons. His food was gradually reduced until he died in ahalf year. In another case, a man who committed adultery or rape mightbe tied down with stones and tossed into the water to drown, or be buriedwith his head above the ground for the people to spit on him and teasehim. The government did not ban these punishments.80 An old Chinesesaying emphasized, “severe punishments had to be imposed when ruling achaotic society.”

Although the Constitutional Court has endeavored to promote humanrights in Taiwan, most people may not think it desirable. In effect, Tai-


wanese people are still in favor of severe punishments. In a survey of 1991,fifty-eight percent of the respondents approved of executing criminals inpublic, sixty-eight percent endorsed enacting special laws to rigidly dis-pose of crimes, sixty-nine percent opposed eliminating the death penalty,and fifty-nine percent stated that the punishment of criminals was moreimportant than compensation for the injured.81 In a 1999 survey, sixty-eight percent of respondents stated that the law’s punishment of crimeswas too lenient, while slightly over one percent thought it too harsh. In thesame vein, fifty- two percent of those respondents opined that the sen-tences passed by judges were too merciful, while merely one percent feltthem harsh. More interestingly, over forty-two percent of those respon-dents did not agree that the accused had to be released if there was insuffi-cient evidence to prove them guilty of serious crime so long as there wassubstantial basis for suspicion.82

As far as freedom of speech is concerned, a 1985 survey revealed thatalmost fifty-nine percent of respondents supported restriction on free-dom of speech for the sake of social stability, and ninety-one percent dis-agreed that the people were entitled to assemble or parade without per-mission.83

Evidently, traditional Chinese legal culture still tremendously influ-ences Taiwanese people in terms of ignoring the protection of individualrights, despite the Constitutional Court’s reinforcement of human rights.Indeed, since the concept of human rights is transplanted from the Westinstead of cultivated from Taiwanese society, it seems reasonable thatcourt decisions alone are not enough to alter the people’s minds in astroke. Without popular support for the protection of human rights, how-ever, it is doubtful that the Rule of Law can be realized in Taiwan.

Access to the Law: An Ideology That Has Not Come True

One meaning of the Rule of Law is that our relations and actions are gov-erned by codified, impersonal, and impartial procedures and rules that areapplied equally and fairly to all people.84 Nonetheless, laws are written sothat they can be interpreted only by lawyers; judicial decisions are craftedso as to be fully intelligible only to the legally trained. Court regulationsand court schedules, even courthouse architecture, are designed aroundthe needs of the legal profession. The denial of legal services is in reality adenial of access to the legal system.85 By the same token, without compe-tent courts any justice system would be futile.


Legal reforms continue to be a constant undertaking for every head ofthe judiciary in Taiwan. To encourage the people to bring their cases be-fore courts, the Code of Civil Procedure was revised several times, makingit easier for citizens to use the courts and expanding the scope of smallclaims cases. Small claims courts have been set up in almost every townsince 1991. Judges in small claims courts even work at night, prepared toserve citizens at any time.86 The presence of so many small claims courtsmakes civil procedure expeditious, economical, and convenient. The peo-ple are encouraged to resolve their disputes in courts. In this regard, thegovernment has demonstrated its determination to carry out the Rule ofLaw.

Nonetheless, Taiwanese court caseloads are tremendously heavy. In1999, every district court judge had to deal with an average of 545 litiga-tion cases.87 There were fewer than six judges per 100,000 persons in1998.88 As a result, the quality of court decisions is declining, delays inprocessing cases are multiplying, and the cost of bringing a lawsuit is in-creasing. In a 1999 survey, fifty percent of Taiwanese respondents claimedthey would not file cases in court because the process was too time-con-suming, and thirty-six percent complained of high costs in using a court.89

Litigants with little knowledge or wealth may be overlooked by the courtsystem.

Even worse, it is expensive to hire a lawyer in Taiwan, making it difficultto obtain competent legal aid. In Taiwan, the bar examination is notoriousfor the difficulty of passing. Although the government endeavored to raisethe passing rate, only six percent, or 231 applicants, passed the bar exami-nation in 1998.90 According to a rough estimate, about 3,200 attorneyswere practicing in Taiwan in the same year, reflecting a ratio of 14.6 attor-neys per 100,000 persons.91 Overall, the service of an attorney is still a rareproduct in the Taiwanese legal market. According to a 1999 survey, sixty-eight percent of those who would not hire a lawyer said it was due to thehigh attorney fees.92

High attorney fees in Taiwan result in the low rate of attorney represen-tation in courts. In December 1999, for instance, the percentage of all civillawsuits in which both parties had attorney representation was only 4.6percent, and in 19.1 percent of the cases only one party was represented indistrict courts. In high courts, however, the ratios increased to 40 percentand 26 percent, respectively. The attorney representation rates were evenlower in criminal courts, with 12.5 percent in district courts and 32.9 per-cent in high courts, respectively.93 That is, the parties were inclined not to


hire attorneys until their cases were appealed to the high courts, and eventhere we find a low rate of attorney representation. With such meager at-torney assistance, the rights of the people are hardly adequately ensured.Due to expensive legal services, those litigants with the greatest resourcesof knowledge, wealth, and influence are most likely to be able to make useof the courts. In this way, the Rule of Law is available to the “haves” to a fargreater extent than to the “have-nots.”94

Although attorney services are scarce in courts, Taiwanese legal aid issurprisingly in short supply. Compulsory legal aid is rarely required, de-spite the government’s 1999 policy decision to support a legal aid system.No specific legal aid organizations, like the Legal Services Corporation inthe United States, have ever been established. Legal aid in Taiwanese soci-ety is offered by law schools, charity organizations, and social activistgroups. Their legal services, however, are not comprehensive. By and large,they provide only consultation, with no further paper work or legal ser-vices in the courts, which citizens need most. In the end, citizens have tofind and hire lawyers, which many cannot afford.

Conclusion

The evolution of the Rule of Law in Taiwan has been deeply influenced byboth Chinese traditional legal culture and political ideology. As far as po-litical ideology is concerned, in the Chiang Kai-shek era the ruling partyused the Rule of Law as propaganda to enhance its legitimacy and to at-tract the people’s support for the regime. Nonetheless, its version of theRule of Law was merely an illusion. Chiang’s Rule of Law was completelyinconsistent with that in Western countries. Spurred by uprooting socialchange, the Taiwanese people employed the Rule of Law to challenge Chi-ang’s regime. Since the regime always declared that it was pursuing theRule of Law, it was extremely difficult for it to reject claims made toachieve the Rule of Law, although it never sincerely carried out this policy.

As a matter of fact, the Rule of Law has now been realized to a large ex-tent in today’s Taiwan. The judiciary has become active in reviewing de-crees, regulations, statutes, and even constitutional amendments. Govern-ment power is strictly checked by the principles of legality and constitu-tionalism. Individual rights such as physical freedom and freedom ofexpression are preferred to any other concerns. In this respect, the falseideology of the Rule of Law of the past has recently become a real one inTaiwan. Government has determined to carry out the Rule of Law. The


state has even tried to encourage the people to use the courts to resolvetheir disputes. However, legal services, in terms both of their quality andquantity, are not yet efficient and available. Courts, lawyers, and otherlegal institutions have not been well prepared for the establishment of theRule of Law among the “have-nots” as well as the “haves.”

The major Taiwanese issue concerning the Rule of Law today is thatthere is in effect a two-tier legal system; there is a high standard of theRule of Law today at the highest court, the Constitutional Court, with in-sufficient support for access to the law at lower levels. This two-tier systemmay amount to a systematic denial of justice to the poor. It is thereforeimperative for Taiwan to develop a legal aid system that enables the poorto use the courts, so that the Rule of Law is equally available to all.

The other major problem concerning the Rule of Law in Taiwan’s cur-rent political situation is that the common people do not necessarily en-dorse it due to the continuing influence of traditional legal culture. TheRule of Law realized on the government level has not trickled down intothe popular mind. Here we see another two-tier system. That is, on thegovernment level, the Constitutional Court has comprehensively acceptedthe concepts of the Rule of Law and wholeheartedly enforced them. Thepeople, however, still adhere to traditional legal culture, distrust the judi-cial system, and prefer social stability to the protection of human rights.

In the circumstances of this double two-tier system, to establish asound justice system and to provide effective legal aid and to educate thepeople about the value of human rights are all arduous tasks the state hasto undertake. We can expect that the institutional tasks can be dealt withmore readily than the task of transforming the legal culture. To improvethe justice system and legal services will depend on the state’s determina-tion, but to change the popular mind will require long-term educationand unceasing social development.

n o t e s

1. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 184–203(London: MacMillan & Co., 10th ed., 1959), in J.C. Smith and David N. Weisstub(eds.), The Western Idea of Law, 446–452 (London: Butterworths, 1983). Dicey’sconception of the Rule of Law is widely discussed. E.g., Roger Cotterrell, The Soci-ology of Law, 157 (London: Butterworths, 2nd ed., 1992); Masami Ito, The Rule ofLaw: Constitutional Development, in Arthur Taylor von Mehren (ed.), Law inJapan, 203 (Cambridge: Harvard University Press, 1963).


2. Dicey, supra note 1, at 450.3. Franz Michael, “Law: A Tool of Power”: Human Rights in the People’s Re-

public of China, 33 (Boulder & London: Westview Press, 1988).4. “Tudu Tianxia zhi Gannao, Lisan Tianxia zhi Zhinu.” See Zhung-xi Huang,

Minyi Daifang Lu: Yuanjun.5. De-sheng Zhang, Rujia Lunli Yu Zhixu Qinjie [Confucian Ethics and Order

Complex], 134 (Taipei: Juliou Publisher, 1989).6. “Xin bu shang Daifu.” See Tong-zu Qu, Zhongguo Falu Yu Zhongguo She-

hui [Chinese Law and Chinese Society], 261–263 (Taipei: Liren Publisher, 1984).7. Tai-seng Wang, Chuan-tong Zhuongguo Falu Wenmin De Shengxing [The

Prevalence of Traditional Chinese Legal Civilization], 63 Yuedan L. J. 128–135(2000). [Hereafter cited as Chinese Legal Civilization.]

8. Steve Tsang, Transforming a Party State into a Democracy, in Steve Tsang andHung-mao Tien (eds.), Democratization in Taiwan: Implications for China, 1–3(Hong Kong: Hong Kong University Press, 1999).

9. Bruce J. Dickson, The Kuomintang before Democratization: OrganizationalChange and the Role of Elections, in Hung-mao Tien (ed.), Taiwan’s Electoral Poli-tics and Democratic Transition: Riding the Third Wave, 49 (New York: M. E.Sharpe, 1996); Hung- mao Tien, Transformation of an Authoritarian Party State:Taiwan’s Development Experience, in Tun-jen Cheng and Stephan Haggard (eds.),Political Change in Taiwan, 40 (Boulder & London: Lynne Rienner Publishers,1992).

10. Yun-han Chu, Social Protests and Political Democratization in Taiwan, inMurray Rubinstein (ed.), The Other Taiwan: 1945 to the Present, 105 (New York:M. E. Sharpe, 1994).

11. See Tsung-fu Chen, Judicial Review and Social Change in Post-War Tai-wan, 116 (unpublished JSD diss., New York University School of Law, 1997).

12. Tsang, supra note 8, at 10.13. Tien, supra note 9, at 36.14. Tien, supra note 9, at 36; Chen, supra note 11, at 119.15. Jie-Min Wu, Zhengzhi Zhuanxinqi De Shehui Kangyi: Taiwan 1980

Niandai [The Social Protests in the Political Transition Period: The 1980s in Tai-wan], 57 (unpublished Phil. M. thesis, Taiwan University, Taipei, 1990).

16. Hsin-Huang Michael Hsiao, The Rise of Social Movements and CivilProtests, in Tun-jen Cheng et al. (eds.), supra note 9, at 57–72; Hsin-HuangMichael Hsiao, The Changing State-Society Relation in the ROC: Economic Change,the Transformation of the Class Structure, and the Rise of Social Movements, inRamon H. Myers (ed.), The Republic of China and the People’s Republic of Chinaafter Forty Years, 136–140 (Stanford: Hoover Institution Press, 1991). See alsoChyuan-jenq Shiau, Civil Society and Democratization, in Steve Tsang et al. (eds.),supra note 8, at 105–109.

17. For the meaning and results of the National Affairs Conference, see Harvey


J. Feldman (ed.), Constitutional Reform and the Future of the Republic of China,22–47 (New York: M. E. Sharpe, 1991).

18. Yun-han Chu and Tse-min Lin, The Process of Democratic Consolidation inTaiwan: Social Cleavage, Electoral Competition, and the Emerging Party System, inTien (ed.), supra note 9, at 85; Yun-han Chu, The Challenges of Democratic Consol-idation, in Tsang et al. (eds.), supra note 8, at 149.

19. Xianfa Zengxiou Tiaowen [Constitutional Amendments 2000] art. 10.20. For the power struggle between the “mainstream” and the “non-main-

tream” factions within the KMT and their policy disputes, see Yun-han Chu et al.,The Process of Democratic Consolidation in Taiwan, in Tien (ed.), supra note 9, at84–85.

21. Zhongyang Wenwu Guongyingshe, Chiang Zongtong Minzhu XiangzhengJiangci Ji [A Compilation of President Chiang’s Address on Democratic Constitu-tionalism], Vol. 1, 43–47 (Taipei: Zhengzhong Bookstore, 1971) [hereafter cited asChiang’s Address].

22. Tsang, supra note 8, at 4.23. Cited in Yi-ming Tao, Zongtong Jianggung Fazhi Sixiang Zhi Yanjiou [Re-

search on President Chang’s Ideology of the Rule of Law], 121 (Taipei: unpub-lished Ph. L., Zhongguo Wenhua Xueyuan, 1978).

24. Cited in Tao, supra note 23, at 84.25. Tao, supra note 23, at 248.26. Tao, supra note 23, at 106–108.27. Tao, supra note 23, at 84–85, 102; Chiang’s Address, supra note 21, at 31.28. Tao, supra note 23, at 82–83.29. Tao, supra note 23, at 109, 113.30. Chiang’s Address, supra note 21, at 41–42; Tao, supra note 23, at 78–79.31. Shiau, supra note 16, at 104.32. Tsang, supra note 8, at 8; Teh-Hou Jen, The Constitutional Development of

the Republic of China, 1949–1975: Law and Politics in Taiwan, 236–238 (unpub-lished Ph.D. diss., New School for Social Research, 1978); Jia-Shu Huang, Guo-mindang zai Taiwan: 1945–1988 [The Kuomintang in Taiwan: 1945–1988],385–387 (Taipei: Daqing Publisher, 1994).

33. Dafaguan Jieshe [The Constitutional Court’s Interpretation] No. 85(1960).

34. See Chen, supra note 11, 89–93.35. Dafaguan Jieshe [The Constitutional Court’s Interpretation] No. 31

(1954).36. Shan-tien Lin, Wushi Nian Lai De Fazhi: 1945–1995 [The Taiwan Legal

System during the Past Five Decades], 36, n. 40 (Taipei: Taida Bookstore, 1995).37. Ro-lin Zhengzhang, Taiwan: Fenlie Guojia Yu Minzhuhua [Taiwan: Di-

vided Country and Democratization], 116–118 (Taipei: Yuedan Publisher,1994).


38. Hung-mao Tien, The Great Transition: Political and Social Change in theRepublic of China, 111 (Stanford: Hoover Institution Press, 1989).

39. Alexander Ya-li Lu, Political Opposition in Taiwan: The Development of theDemocratic Progressive Party, in Tun-jen Cheng et al. (eds.), supra note 9, 124.

40. I-chou Liu, The Development of the Opposition, in Steve Tsang et al. (eds.),supra note 8, at 68. For the function of political magazines in the process of Tai-wan’s opposition movement, see Chin-Chuan Lee, Sparking a Faire: The Press andthe Ferment of Democratic Change in Taiwan (Austin: The Association for Educa-tion in Journalism and Mass Communication, 1993); Daniel Berman, Words likeColored Glass: The Role of the Press in Taiwan’s Democratization Process (Boul-der: Westview Press, 1992).

41. Lu, supra note 39, at 125.42. Dafaguan Jieshe [The Constitutional Court’s Interpretation] No. 105

(1964).43. Chi-bin Fa, Jinnianlai Zhonghuaminguo Falu Gaige Yu Xianfa Jieshi [Legal

Reform and Constitutional Interpretation in the Republic of China Recently], in Jin-Yu Zhang (ed.), Zhonghuaminguo Minzhuhua [The Democratization in the Re-public of China], 339 (Taipei: Chengchi University International Affairs Center,1992).

44. For the Taiwanese legal system, see Tay-sheng Wang, Taiwan, in Poh-LingTan (ed.), Asian Legal Systems: Law, Society and Pluralism in East Asia, 124–161(Sydney: Butterworth, 1997).

45. See supra, text accompanied by notes 33–42.46. Cited in Tao, supra note 23, at 110.47. Gen Wu, Xingzhengfa Zhi Lilun Yu Shiyong [The Theory and Practice of

the Administrative Law], 76, n. 8 (Taipei: Sang-min Bookstore, 1995).48. Judgment of Administrative Court, 1963, Pan No. 312. Cited in Ai-o Chen,

Woguo Weiren Lifa Xiangzhuang zhi Jangtao [Review of the Current Delegated Leg-islation in Our Country], 14 (1) Xiang zheng Shidai [Const’l Rev.] 58, 58 (1988).





53. See Tzong-li Hsu, Xianfa Weixian Hu? Ping Shezhi Di Se Jiou Jiou HaoJieshe [Is the Constitution Unconstitutional? Comments on Interpretation No. 499],60 Yuedan L. J. 141–154 (2000).



55. Xianfa [Constitution] arts. 79, 80.56. Dafaguan Jieshe [The Constitutional Court’s Interpretation] No. 436

(1997).57. Xianfa Zengxiou Tiaowen [Constitutional Amendments 1997] art. 5

(6).58. Ching-kuo Chiang, Xingxian Sanshi Nian lai de Xingzheng [The Adminis-

tration of Thirty Years after the Implementation of the Constitution], in XingxianSanshi Nian Jinian Zhuankan Bianji Weiyuanhui [The Committee of Editing theCommemoration Book for the Thirty-Year Implementation of the Constitution],Zhonghua Mingguo Xingxian Sanshi Nian [The Thirty-Year Implementation ofthe Constitution in the Republic of China], 63 (1977).

59. See Rui-Zhi Xie, Weijing Fafa Xiuzheng Fangxiang Zhi Tantao [A Researchon the Revision Approach of the Law Governing Offenses Punished by the Police],in Vol. 8. No. 8 Zhongguo Luntan [China Tribune] 18, 19 (1979); Rui-Tong Chen,Weijing Fafa zhi Yanju [A Research on the Law Governing Offenses Punished bythe Police], 87–88, figure 2 (1975).








67. Yi-Rong Yang, Jiaoyu Yu Guojia Fazhan: Tiwan Jingyan [Education andNational Development: Taiwan’s Experiences], 82–83, 280–282 (Taipei: GuanguanPublishers, 1994).

68. Yu-ti Lin, Taiwan Jiaoyu Mianmao Shishi Nian [The Appearance of Tai-wanese Education during Forty Years], 41–42 (Taipei: Zhili Wanbao, 1987).



71. Wang, Chinese Legal Civilization, supra note 7, at 129.72. For Taiwanese customary law adopted in Japanese courts in Taiwan, see

Tay-sheng Wang, Legal Reform in Taiwan under Japanese Colonial Rule,


1895–1945: The Reception of Western Law, chapter 4 (Seattle: University of Wash-ington Press, 2000). [Hereafter cited as Legal Reform in Taiwan.]

73. Barry M. Hager, The Rule of Law: A Lexicon for Policy Makers, 25 (Wash-ington, D.C.: Mansfield Center for Pacific Affairs, 1999).

74. Hager, supra note 73, at 35.75. Qu, supra note 6, at 261–262, 275–282.76. Wang, Legal Reform in Taiwan, supra note 72, at 130–132. Nonetheless,

Wang argued that the discrimination against Taiwanese seemed not serious in thelater period of Japanese rule. See id.

77. Wang, Legal Reform in Taiwan, supra note 72, at 86–87. On the otherhand, colonial judges had a favorable chance to decide civil and commercial caseswith impartiality. See id.

78. Xianfa [Constitution] art. 81.79. Yan-hui Dai, Zhongguo Fazhishi [Chinese Legal History], 90 (Taipei: San-

min Bookstore, 9th ed., 1991).80. Tay-sheng Wang, Taiwan Falushi De Jianli [The Establishment of Taiwan’s

Legal History], 362 (Taipei: Sanmin Bookstore, 1997).81. Jiun-rong Yeh, Minzhong De Falu Taidu [The Public’s Attitude towards the

Law], in National Science Council Research Report, Taiwan Dequ Shehuei YixiangDiaocha [The Social Image Survey: General Survey of Social Attitudes in Taiwan],183 (1991).

82. Chung-wei Lee, Guoren Fazhi Guannian Renzhi Chengdu Zhi DiaochaYanjiou [Investigation and Research on the Citizen’s cognition of the rule of law],73, figures 4–2–31, 4–2–32, 4–2–33 (2000).

83. Yung-chin Su, Fazhi Renzhi Yu Taiwan Diqu De Zhengzhi Minzhuhua:Cung Renmin De Zhifa Xingwei Tantao [Cognition of Rule of Law and PoliticalDemocratization on Taiwan: A Study on the Law-Enforcement Behavior of Peo-ple], appendix page 27, figure Q.34 (1997).

84. Gerald Turkel, Law and Society: Critical Approaches, 46 (Boston: Allynand Bacon, 1996).

85. David Luban, Lawyers and Justice: An Ethical Study, 244 (Princeton:Princeton University Press, 1988).

86. This night court service has been dropped in a year because rare casesreached the courts at night.

87. See Judicial Yuan’s network service, address: http://www.judicial.gov.tw/juds/1–source5.htm.

88. In 1998, Taiwan, with a population of almost 22 million, had only 1,275judges.

89. Lee, supra note 82, at 67, figure 4–2–23.90. See Examination Yuan network service, address: http://www.exam.gov

.tw/stad.doc/66.xls.


91. The estimated number of attorneys in Taiwan was provided by Taiwan’sNational Bar Association.

92. Lee, supra note 82, at 66, figure 4–2–22.93. See Judicial Yuan’s network service, address: http://www.judicial.gov.tw

/juds/1–source5.htm.94. Cotterrell, supra note 1, at 159. See also Marc Galanter, Why the “Haves”

Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law and SocietyRev. 95–160 (1974).


About the Contributors

William P. Alford is Henry L. Stimson Professor of Law and Director ofthe East Asian Legal Studies Program at Harvard Law School. His researchinterests include Chinese Law and Legal History and Legal Aspects of In-ternational Trade and Technology Transfer. His published works include:To Steal a Book Is an Elegant Offense: Intellectual Property Law in ChineseCivilization (Stanford University Press, 1995); “The Limits of Law—Ad-dressing China’s Environmental Dilemma,” 16 Stanford EnvironmentalLaw Journal 125 (1997); and “Tasselled Loafers for Barefoot Lawyers:Transformation and Tension in the World of Chinese Legal Workers,” 141China Quarterly 23 (1995).

Albert H. Chen is Dean and Professor of Law at Hong Kong University.His research interests include Comparative Law (Chinese and socialistlaws), Law and Development, and Law and Society. In addition to overseventy articles published in various English- and Chinese-language jour-nals, he has written numerous books, including: Human Rights and theRule of Law: The Challenges of Hong Kong’s Transition (Hong Kong: WideAngle Press, 1987) (in Chinese, with Professor Johannes Chan); An Intro-duction to the Legal System of the People’s Republic of China (Singapore:Butterworths Asia, rev. ed. 1998); and The Rule of Law, Enlightenment andthe Spirit of Modern Law (Beijing: China University of Politics and LawPress, 1998) (in Chinese). Professor Chen is currently a member of theCommittee for the Basic Law of the Hong Kong Special AdministrativeRegion under the Standing Committee of the National People’s Congressof the People’s Republic of China and an associate member of the Interna-tional Academy of Comparative Law.

411

Tsung-fu Chen is Associate Professor of Law at the National Taiwan Uni-versity School of Law. In 1997 he served as a clerk in the ConstitutionalCourt of Taiwan. His recent publications include: Judicial Review and So-cial Change in Post-War Taiwan (Stanford University Press, forthcoming);“Litigation and Social Development,” Proceedings of the National ScienceCouncil, Part C: Humanities and Social Sciences, vol. 10, no. 44 (October2000): 435–469 (in Chinese); and “Max Weber on the Formality and Ra-tionality of the Law,” in Taiwanese Legal History Association (ed.), The Re-search Methods of Taiwanese Legal History (Taipei: Xueling Publishers,2000), 211–255 (in Chinese).

Donald C. Clarke is Professor of Law at the University of WashingtonSchool of Law, Seattle, and is a member of the Council on Foreign Rela-tions. He has published numerous articles and monographs on Chinesecriminal law and human rights, China and the international trading sys-tem, Chinese legal institutions, and law and economic reform in China,including: “China and the World Trade Organization,” in Freshfields (ed.),Doing Business in China (Yonkers, N.Y.: Juris Publishing, 1999), I–11.1 toI–11.30; Wrongs and Rights: A Human Rights Analysis of China’s RevisedCriminal Code (New York: Lawyers Committee for Human Rights, De-cember 1998); “Power and Politics in the Chinese Court System: The Exe-cution of Civil Judgments,” Columbia Journal of Asian Law, vol. 10, no. 1(Spring 1996): 1–125; and “What’s Law Got to Do with It? Legal Institu-tions and Economic Reform in China,” UCLA Pacific Basin Law Journal,vol. 10, no. 1 (Fall 1991): 1–76.

Alison W. Conner is Professor of Law at the William S. Richardson Schoolof Law, University of Hawaii. After a year as Fulbright Professor of Law atNanjing University in China (1983–84), she served as senior lecturer inlaw at the National University of Singapore (1984–86) and lecturer in lawat the University of Hong Kong (1986–95) before assuming her presentposition. She is the author of articles on Chinese legal history (Qing andRepublican periods) as well as on modern Chinese law. A fellow at theWoodrow Wilson International Center for Scholars in Washington, D.C.,and recipient of a Chiang Ching-kuo Senior Scholar Grant (1999–2000),her current project is a history of Shanghai’s Soochow Law School and therole its graduates played in the development of a modern Chinese legalprofession.

412 About the Contributors

R. Randle Edwards is Walter Gellhorn Professor of Law and Director ofthe Center for Chinese Legal Studies at Columbia Law School, as well as afaculty member of Columbia University’s East Asian Institute. From 1983to 1991, he served as Chairman of the Committee on Legal EducationExchange with China, and from 1987 to 1996 he was editor-in-chief ofthe Journal of Chinese Law (now the Columbia Journal of Asian Law). Inaddition to articles on China’s criminal law, its practice of internationallaw, and Chinese legal history, his publications include Human Rights inContemporary China (with Louis Henkin and Andrew J. Nathan, 1986)and Essays on China’s Legal Tradition (co-editor, with Jerome A. Cohen,1980).

Jamie P. Horsley is an independent scholar and consultant to the CarterCenter China Village Election Project since December 1999. After fouryears as a partner in the law firm of Paul, Weiss, Rifkind, Wharton & Gar-rison, Hong Kong, he joined the Foreign Commercial Service and servedas Commercial Attaché at the U.S. Embassy in Manila (1991–93) and atthe U.S. Embassy in Beijing (1993–95), before becoming director of Gov-ernment Relations for China for Motorola, Inc., and Vice President of Mo-torola International, Inc. (1995–98) (focusing on monitoring, analyzing,and influencing developments in the regulatory environment for doingbusiness in China). Among his recent major publications are: “Erecting aBody of Construction Law in the People’s Republic of China,” Journal ofChinese Law, Vol. 7, No. 1 (Spring 1993) at 35; “Labor Law and Practice,”in Streng and Wilcox, eds., Doing Business in China (Matthew Bender1990); and “The Chinese Business Environment,” with Sue-Jean Lee, inBusiness Opportunities in the Far East (Coopers & Lybrand, 1990).

William C. Jones is Charles F. Nagel Professor Emeritus of Internationaland Comparative Law at Washington University School of Law, St. Louis,Louisiana. He has worked in the area of Chinese and comparative law formore than thirty-five years, and his translation of the Great Qing Codewas recently published by Oxford University Press. He is also the author ofBasic Principles of Civil Law in China (Sharpe, 1989), among other publi-cations. Professor Jones has been a lecturer for the International Associa-tion for Teaching Comparative Law, a visiting professor at the Universityof Freiburg at Bresigau and National Taiwan University, and a visiting re-search scholar at Tokyo University. In addition, he was at the Institute of

About the Contributors 413

Developing Economies in Tokyo, and he was a Fulbright Lecturer atWuhan University in China.

Natalie G. Lichtenstein has been adviser to the Vice President and GeneralCounsel at the World Bank since 1999. She previously served as counsel atthe World Bank (1980–94), advising on lending operations in numerouscountries, including China and Vietnam), and as Chief Counsel for theEast Asia and Pacific Region (1994–99), managing the Legal Departmentdivision, which handles the Bank’s legal work in countries extending geo-graphically from Korea to Myanmar. Her recent publications include “En-terprise Reform in China: The Evolving Legal Framework,” Policy Re-search Working Paper WPS 1198, The World Bank (1993); “Current De-velopments in the Legal System of China,” in Current Legal Issues AffectingCentral Banks, Vol. 4, Robert C. Effros (ed.) (International MonetaryFund, 1997); and “China and the World Bank,” in Proceedings of the 90thAnnual Meeting, the American Society of International Law (1996).

Susan Roosevelt Weld is a Research Fellow in the East Asian Legal StudiesProgram at Harvard Law School. She has also been recipient of the UnitedNations Lifetime Achievement Award and the International Institute’sGolden Door Award. Her publications include: The Art of the Covenant:Calligraphy from the Era of Confucius (in preparation for publication inconjunction with the Henan Provincial Institute of Cultural and Archaeo-logical Research in 2001); Blood Oath in Early China (1990 dissertation, inpreparation for publication as revised, based on field research in 1993,1994, 1998, and 1999); and “Chu Law in Action: Legal Documents fromTomb #2 at Baoshan,” in Constance A. Cook and John S. Major, eds.,Defining Chu: Image and Reality in Ancient China (University of HawaiiPress: Honolulu, 1999).

414 About the Contributors

About the Editor

Dr. C. Stephen Hsu (a.k.a. Chuanxi Xu) is a Fellow at the China Law Cen-ter, Yale Law School, and an attorney-at-law at the international law firmof Paul, Weiss, Rifkind, Wharton & Garrison. He has written in both Eng-lish and Chinese on a variety of Chinese legal and social issues. His repre-sentative publications include “Fundamental Principles of China’s Con-tract Law” (with Professor Wang Liming), Columbia Journal of Asian Law,vol. 13, no. 1 (Spring 1999): 1–34; Contemporary Chinese Legal Develop-ment (general editor) (Beijing: The Publishing House of Law, forthcoming2002)(in Chinese); and “Face:” An Ethnographic Study of Chinese SocialBehavior (doctoral dissertation, in preparation for publication as revised).Dr. Hsu is a former Articles and Symposium Editor of Harvard Interna-tional Law Journal and Editor-in-Chief of the Yale Journal of Anthropology.He currently serves as President of the Chinese Law Society of America, adirector of the American Society of Comparative Law, and a member ofthe editorial board of the American Journal of Comparative Law.

415

“Abnormal phenomenon” (bu zhengchang dexianxiang), 108

Addendum to the Standards for LimitedShare Companies, 286

Administration of Industry and Commerce(AIC), 276

Administrative law, 14; Chinese, 109Administrative Litigation Law, 315, 326Administrative Reconsideration Law, 315Age, 157American Heritage Foundation, 363Ames, Roger, 154Analects, 123Anger, 139Anglo-American common law system, 182,

210, 213, 230–234; courses, 219–220, 228,229, 233

Anglo-Saxon law, 218Anti-Rightist Campaign of 1957, 39Anti-traitor movement, 29–31Armenia, 53Arts, 134. See also shuAurora University (Zhendan Daxue), 222Austinian law, 145Australia, 356“Axial age,” 169

ban (pertaining to the world of butchery andsacrifice), 159

ban qi zhong xin yi shi qi zhu (split open myvitals in serving my Lord), 142, 158

Baoshan, 122–123, 126, 128–129, 136, 138,144–145, 149, 152, 157, 162–163,166–168; materials, 164

Baoshan #2, 129–130

Basic Law Committee, 365–366Basic Law of the HKSAR, 358–368Becker Commission, 236–238Benevolence, 134, 147, 149, 151, 155; Benevo-

lent, 150“Benign violations” (liangxing weixian), 108Bequeath, 155bi offering, 158Bible, 141Blume, W.W., 213–214, 225, 235Board of Civil Appointments, 206Board of Punishments, 181, 184–186,

188–196, 200–202, 204Board of Rites, 193, 206Board of War, 206Bohannan, Paul, 115Bourgeoisie, 25Bourgeois, legal system, 26; rights, 26; social

analysis, 28Brazil, 73Britain, 18, 53bufa (unjust, contrary to a broader model or

standard of justice), 152buxin (not personally), 160

Cai, 160Cambodia, 53Canada, 115, 356Carter administration, 50Case of the Kidnapped Laborers, 152Case of the Murdered Brother, The, 149, 161,

167Censor for the Jiangsi Circuit, 193, 206Central Authorities and the Region, 360Central People’s Government, 360

417

Index

changwu (factory affairs), 327Chan, Hugh, 225Chan Kam-nga and 80 Others v Director of

Immigration, 359, 362Chen, 144Chen Wei, 125, 145–146, 151, 161, 163chengan, 182Chengzhi wenzhi, 141–142, 148, 153–154Chiang Ching-kuo, 378–379, 391Chiang Kai-shek, 19, 33, 375–378, 381–382,

387, 395, 402Chile, 50, 53China Law Review (CLR), 224–226China Youth Daily, 316China statutes, 225; Civil Code, 225; Code of

Civil Procedure, 225; Company Law, 225,279, 282, 285–286; Criminal Code, 225,315, 326, 328; Law on Enterprise Bank-ruptcy (Enterprise Bankruptcy Law), 279;Negotiable Instruments Law, 225; StateIndustrial Enterprise Law (State Enter-prise Law), 279–280; Unified ContractLaw, 279

Chinese Marxism, 23, 27, 40Chinese National Party, 19. See also Kuom-

intang (KMT)Chinese Supreme Court, 225Chinese University of Politics and Law

(Zhongguo Zhengfa Daxue), 242Ch’ing shih kao (Draft history of the Ch’ing

dynasty), 16Christianity, 46, 154Chiu, Henry H. P., 225chu (expression), 133Chu, 122–130, 134, 136, 138, 142, 144–145,

147–148, 151, 153, 157, 161–164, 166–168CIA, 64Circular Issued by the General Office under

the CCP Central Committee and StateCouncil General Office on Implementingin an All-Around Manner the System ofOpening Government Affairs to the Pub-lic by Organs of State Power in Townsand Townships throughout the Nation,327–328

Circumstance, 133. See also shi“Civil society,” 58Civil war, between Nationalists and Commu-

nists, 20, 29Classics, the, 135, 139

Clinton administration, 68, 128Code, 17–18Code Civile, 149Cohen, Jerome A., 7, 76–77, 289, 331, 362Cold War, 47, 50, 54Collected Sayings, No. 1 (Yucong 1), 134Collectivization, 26Communist Party, Chinese (CCP), 19, 22–23,

27, 29, 71, 111, 295–297, 299–300, 306,309, 318, 322, 330, 353, 377, 381; CentralCommittee, 305

Communist Youth League, 317, 377Company Registration Rules, 277Comparative law, 210Comparative Law School of China (CLS),

210–215, 217–218, 220, 227–238,240–241, 243. See also Soochow Univer-sity Law School

Conduct, 148–149. See also xingConfucius, 7, 163, 166; Confucian legal sys-

tem, 397; Confucian philosophy, 123;Confucianism, 180, 182–183, 375

Congress, United States, 110–111Constitution, People’s Republic of China, 93,

103, 105, 225, 306–307, 319, 321, 326;1982 Constitution, 277, 296–298, 302,323, 325; 1993 Constitution, 280–281. Seealso xianfa

Constitution, Republic of China, 355, 376,378–379, 387–389, 391–392, 394–395,398; 1947 Constitution, 380, 386, 393;Constitutional Amendment of 1997, 390

Constitutional Court, Republic of China,376, 379, 381–383, 385–390, 392, 394,396, 399–400, 403

Continental law, 218Contracts, 13, 18; Chinese contract law, 93,

102–103Cook, Robin, 363Copernicus, 113Corpus Juris, 12Council of Grand Justices, 386Court of Final Appeal, Hong Kong (CFA),

359–362, 366Cultural Revolution, 38–40, 70, 297–298cunwu (village affairs), 327Czech Republic, 53

da chang (great norm), 141. See also GreatNorm; Norm

418 Index

da lushi (big lawyer), 240dao (the Way), 124, 132–134, 137, 140. See also

Way, thede (virtue), 124, 135, 137. See also VirtueDeclaration of Independence, 105–107Defeat, 152Democratic Progressive Party (DPP), 378, 380“Democracy Wall” movement, 297deng (warrant), 163–164Deng Xiaoping, 38–39, 354Desire,152. See also yudian (institution resembling mortgage), 13dian registers, 147Dicey, A. V., 374ding vessels, 129diqu (prefectural), 303“Disciplinary model,” 101–102Discrimination, 148–149. See also jianDispositions, 132–133, 135–137. See also

Emotions; qingDocuments, 135dong (moves), 133Doubt, 152“Doubting antiquity” movement, 122. See

also yiguDraft Agrarian Law of 1947, 30, 32“Dual track” program, 214, 231duan (to judge or adjudicate), 151–152Duojie Cairang, 304–305

Earth, 143, 155Educators, 388Election Law for the NPC and LPC, 303, 309.

See also PC Election LawElectoral Law for Villager Committees, 329Emotions, 132. See also Dispositions; qingEmperor, 8–9; interests of, 13, 15England, 232, 238Enterprise Legal Person Registration Regula-

tions, 283Enterprise Registration Regulations, 276–277,

281Escarra, Jean, 238European Commission, 363Examinations, 8, 16; system, 9Excellence, 148. See also Way of Man“Expressive individualism,” 137Expropriation, 26Extra-territoriality, 18–20, 240Executive Yuan, 390

Factory Closing Down, The, 387Faith,137; Faithful,150. See also Good FaithFa Lun Gong, 38, 359Family, 141Family Feeling, 150fali (legal principles), 217fanfa (breach of a particular law), 152Fan Gui, 189, 200Fanshen, 28, 32Father, 141, 151, 155fa-tong (constitutional continuity), 378,

382–383faxue tonglun (elementary law), 219Faxue Zazhi (Law Magazine), 224, 226–227Federalism, 353, 356, 365, 368Feng Dacheng, 191, 203Feng Kaiku, 190, 202fentian (divide fields), 146“fermentation,” 304, 307, 31015th Chinese Communist Party Congress, 296Filial Piety, 151, 155–156, 187. See also xiaoFirmness, 149Firm Stance, 152. See also Stance“Five penalties,” 399Five-Year Plan, 10th, 327Flexibility, 149Formosa Incident, 378“Foundational natural law,” 143“Four democracies,” 309France, 48, 238Fraternal Love, 156Free China Fortnightly incident, 385French Civil Code, 11French Concession, Shanghai, 222French law, 222Fukuyama, Francis, 48fu-mu guan (parent judges), 375Fu Quan, 161, 165

Gaius, 12Galanter, Marc, 53, 56, 69, 73“Gang of Four,” 37gaocheng (resolve differences), 147Gao Daxian, 192, 204Gaozi, 131“Gate,” 30, 33General Principles of Civil Law, 276,

278–280, 283General Program for Political Reform, 300German Civil Code, 212

Index 419

Germany, 48, 53, 217, 238Gluckman, Max, 115gongkai (openness or transparency), 327gongkai zhengwu (system of openness in

government affairs), 328gongxuan (public election), 319Good Faith, 134, 138, 143, 151. See also Faith“Grassroots democracy,” 296Great Ming Code, 9Great Norm, 141–142, 154. See also da

chang; NormGreat Principle, 154, 156Great Qing Code, 9–11Great Yu, 141grundnorm, 154, 355gu (purpose), 133. See also Precedent; Pur-

poseGuatemala, 53–54, 57, 59Guarantor, 146. See also shouguicheng (best practices, guidelines), 304, 330guo (kingdoms), 138Guodian, 122–124, 128–132, 134, 136, 139,

140, 147, 150–151, 154; texts, 162–163Guodian #1, 128–130guojia guiding (state regulations), 278

Hager, Barry, 397Haiti, 50haixuan (sea election), 307. See also “sea

election”Hall, David, 154Han, 136, 138, 159, 164; early, 145Harper, Dan, 162Heart, 136–138, 141, 148Heaven, 131, 134, 141, 143, 148, 153,

155–156, 163; cycles of, 144heng (constancy, moral predictability), 159.

See also jiHinton, William, 28, 30–31Holmes, Stephen, 46“Home rule,” 295, 298Ho Min, 181Hong Kong (HKSAR), 94, 353, 355,

357–365, 366, 368; Stock Exchange Lim-ited, 286

Houma, 158Hou Santing, 191, 202“Huang Lao,” 137–138Hudson, Manley O., 210, 214, 227Hu Jintao, 305

Humanity, 156; Human, 157Human rights, 48, 64, 67Humours,132. See also qiHusband, 141, 151, 155

“Ideal Western Legal Order” (IWLO), 95–99,101–102, 104, 106, 109–110, 112

I-Lu-Le-Tu, 188, 199Index on Economic Freedom, 363India, 356Indonesia, 53, 70Indulgence, 139Inspection Team on the Enforcement of the

Organic Law on Villagers Committees,326

International Court of Justice, 212International Covenant on Civil and Political

Rights (ICCPR), 99International Settlement, Shanghai, 211, 228Islam, 154

Japan, 8–9, 48, 53, 217, 238, 242; colonialrule of Taiwan, 396–397; invasion, 19–20;occupation, 31; surrender, 29; western in-fluence of law, 19–20;

ji (constancy or moral predictability), 159.See also heng

jian (discrimination), 148–149. See also Dis-crimination

jiang (sending down), 154Jiang Chunyun, 330Jiangling, 124jiangyi (mimeographed or printed materi-

als), 219Jiang Zemin, 128, 295, 305jiao (engages), 133jiaowuzhang (dean), 215jichu (political base), 306Jie, 139–140jie (formally), 162Jin, 125, 158–160Jinancheng, 124Judgment, 152Judicial Process among the Barotse of North-

ern Rhodesia, The, 115Judicial Yuan, 386, 389–390junzi, 124, 138–139, 141–142, 150–151, 153Justice, 132, 136. See also Righteousness; yiJustinian, 12J.W. Hampton, Jr. & Co. v. United States, 110

420 Index

Kanggao, 154Kaohsiung incident, 385Kazakhstan, 53Keelung Bureau of Harbor Affairs, 387Kelsen, Hans, 355Kennedy administration, 49keyao (dependable, may be demanded), 144KGB, 377King Huai, 127–128, 135King Wei, 128King Wen, 154–155Kolakowski, Leszek, 23–24Korea, 8–9, 242ko qin (worthy of compassion), 204Kunkel, W., 11Kuomintang (KMT), 19, 33, 323, 375–381,

383–384, 386–387, 389–391, 393,395–396, 398. See also Chinese NationalParty

Land leasing, 105–106Laozi, 128, 141–142Law and Economics, 145Laws, 150Lee Teng-hui, 379“Legalist” texts, 125Legal Services Corporation, 402Legal System Daily, 320Legislative competence, 109Legislative Yuan, 380, 390Lenience, 149. See also niLeninism, 23Lewis, Mark, 138li (sub-statute), 10li (sharpens), 133li (principles), 135. See also PrinciplesLiao, 145Liberation, 21–22, 27, 35, 38“Liberation of Taiwan,” 354Liji, 128, 162Li Ming, 192, 205lingdao (leadership), 300, 305lingdao hexin (leadership core), 306Li Peng, 305, 312–313Li Shimin, 13Li Xueqin, 129Liu Bang, 138Liu de (The Six Virtues), 150. See also Six

Virtues, TheLiu Erh, 185, 197

Liu, Francis (Liu Shifang), 217Li Zhong, 186–187, 198Lobingier, Charles S., 212, 214, 225“localism,” 51Local PC and Government Law, 319–320,

329. See also Organic Law of the PRC forLocal People’s Congresses and Local Gov-ernments at All Levels

Local people’s congress (LPC), 297, 303Lord, 139, 151, 156Lowell, Robert, 40Loyalty, 134, 151; Loyal, 150Lunyu, 166

Macau, 355, 357Magistrate, 9, 16–17Manchu Dynasty, 375, 389, 396, 399Mandate, 131, 153Mao Zedong, 33; years, 22, 32;Maoism, 23, 27. See also Chinese MarxismMarx, Karl, 24, 108Marxism, 23, 25, 40; teaching of, 31“Massachusetts Miracle,” 128Material Things, 131–133. See also Things;

wuMawangdui, 147May 4 Directive on Land Reform, 29Mayers, W. F., 180MCA Department of Basic-Level Gover-

nance, 304MCA Election Guidelines, 304McCarthy, Joseph, 73Measures on Enterprises’ Shareholding Sys-

tem Experiment, 285Men, 139Mencius, 125Mencius, 131meng (blood oaths), 142, 157–158, 160, 167mengzu (miserable sprite), 160Mexico, 53Michael, Franz, 374Ming Dynasty, 180ming (the sacred blessing of human ruler-

ship), 156mingji (sacredly, instantly), 159Minister, 151Ministry of Civil Affairs (MCA), 299–300,

304, 307–308, 316, 318, 328, 330minxuan (people’s nomination), 320. See also

“Three-ballot” system

Index 421

minyi ceping (public opinion poll), 321minzhu yishi (democratic consciousness),

320Missionaries, 8, 18; institutions, 20Mixed Court, 226moao (chamberlain), 144–145Music, 135, 150Music, 134–135Mutilating Punishments, 134–135, 155Myanmar, 53

Nanking government, 20; decade, 227. Seealso Nationalist government; Republicangovernment

National Affairs Conference, 379National Assembly, 379–380, 383–384,

388–389National Birthday ceremony, 376National Central University (Guoli

Zhongyang Daxue), 222National Declaration, 105–106Nationalist government, 21, 215, 235–236,

375; education authorities, 235; party,222. See also Nanking government; Re-publican government.

National People’s Congress (NPC), 110,278–279, 296–298, 300, 300, 306, 313,321, 325–326, 354, 365; Internal and Ju-dicial Affairs Committee, 305, 326;Standing Committee (NPCSC), 111,299–300, 304, 315, 326, 330, 359–362,366–367

Nature, 131–135, 137–140, 143, 148,152–153, 157. See also xing

Nepal, 54–56, 59New York Times, 46Ng Ka-ling and Others v Director of Immigra-

tion, 359, 362ni (encourages), 133ni (lenience), 148. See also Lenienceni (shield), 148. See also ShieldNigeria, 53Norm, 141. See also da chang; Great NormNorthwestern University, 216–217Notice on Universally Carrying Out Open-

ness in Village Affairs, 305. See also Sys-tem of Democratic Management in Vil-lages

nu (family members), 161

Ode of Yu, 156Odes, 135O’Donnell, Guillermo, 53“One country, two systems” (OCTS),

353–358, 363–368100 Flowers Campaign, 39Opium Wars, 18Order and Discipline in China, 101Organic Law of the PRC for Local People’s

Congresses and Local Governments at AllLevels, 319. See also Local PC and Gov-ernment Law

Organic Law of the PRC on Villager Com-mittees, 300–301, 305. See also VC Law

Organic Law on Urban Residents Commit-tees, 316. See also RC Law

pao-chia, 16Paraguay, 50Parliament, 363Party Central Organization Department, 322Party Departments of Organization, 319PC Election Law, 303, 307, 309–312, 314,

329. See also Election Law for the NPCand LPC

PC Electoral Law, 308, 328–329Peerenboom, Randal, 143Peiyang University, 212Peng Chuke, 188, 199–200Peng Zhen, 295, 298–300People, 136–137, 139–140, 142–143, 150, 153,

155–156People’s Daily, 305“Persons,” 11–12, 15Peru, 53Philippines, 50, 63, 212Pleasure, 133. See also yuePolitical Reform Research Group, 300Posner, Richard, 66Pound, Roscoe, 73, 76, 238–239Practice, 133–134. See also xiPrecedent, 133. See also gu; PurposePrinciples, 135. See also liPrivate property rights, 26Proletariat, 25Propriety, 148Provisional Regulations on Registration and

Control of Companies (Company Regis-tration Regulations), 281–283

422 Index

“proxy voting,” 311Przeworski, Adam, 69Punishments, 142, 150, 154Purpose, 133. See also gu; Precedent

qi (deadlines), 144–145qi (human feelings, humours, vapors),

131–132. See also HumoursQin, 125, 128, 136, 169; pre-, 129qinke (enforcer), 162qing (disposition), 124, 132. See also Emo-

tions; DispositionsQing, 164, 181–182; administrative system,

180; criminal law, 180, 183; Dynasty, 9,19, 183, 187, 194, 221; judges, 182–183;legal secretaries, 182; legal system, 180,182

Qing code: Article 18, 187; Article 22,184–186; Article 23, 184–186

qing shi (request instruction), 184Qin Shi Huang-di, 8Qiong da yi shi (Misery and Success Depend

on the Age), 156Qiu Xigui, 151–152quandeng (contract-warrant), 162–163Qu Yuan, 135

Rankin, Charles W., 211–213RC Law, 316–318. See also Organic Law on

Urban Residents CommitteesReagan administration, 50Rechtsstaatsprinzip, 386Rectitude, 148Regulations on Public Security Management

and Punishment of Violations, 315Regulations on Transforming the Manage-

ment Mechanisms of State-Owned In-dustrial Enterprises, 280

ren (benevolence), 124ren (person of commoner status), 152Republic of China (ROC), 22, 323, 355, 375,

386. See also TaiwanRepublican government, 20, 210; persistence

of legal system, 38. See also Nanking gov-ernment; Nationalist government

Residents Assemblies, 317Residents Committees (RC), 316–318, 326 Respect, 138, 153Retire, 155; Retiring, 155

Reverence, 138Righteousness, 132–134, 136, 139, 141, 147,

149, 155; Righteous, 150. See also Justice;yi

“Right of abode,” 359Rites, 134–135, 150Rivers, 141Romania, 53–55, 57–59Roman law, 9, 11–12, 212, 214, 221–222, 228,

245, 247, 249Rostow, Walt Whitman, 50Roth, Stanley, 363“roving” ballot boxes, 311“rule by man,” 143Rule of law, 7, 39, 48, 52, 70, 73, 90n79, 116,

145, 149–150, 275, 287–288, 323, 330,357, 363, 368, 374–377, 380–383, 386,391, 396–397, 400, 402–403; assistance,56; norms 143; programs, 56, 69

Ruler, 141–142, 150, 153, 155Russia, 53, 70

Sage, 135, 140–142, 155–156Sageliness, 148, 151; Sagely, 150Schmitter, Phillipe, 53“sea election,” 321. See also haixuanSeas, 141Seasons, 143Security Administration, 35–36, 39Sen, Amartya, 66, 74 Settling Accounts movement, 29, 31 Shanghai College of Politics and Law (Shang-

hai Fazheng Xueyuan), 221Shanghai College of Law (Shanghai Fax-

ueyuan), 222Shang oracle inscriptions, 157Shao Tuo, 122, 125–126, 129–130, 135, 138,

144–145, 147, 152, 157–161, 163, 167Shareholding experiment, 283Shegong, 166Sheng, Robert C. W. (Sheng Zhenwei),

216–217, 220, 229, 239shenming (spirit luminaries), 155shenpanyuan, 98,shi (lower nobility or gentleman), 130shi (circumstance), 133. See also Circum-

stanceShield, 149. See also niShiji, 127, 135, 138

Index 423

Shijing, 129Shi Quan, 125shitian (salary fief), 147shou (institution resembling guaranty), 146.

See also GuarantorShouqi (Assigned Deadlines), 144shu (arts), 134. See also ArtsShu Cheng, 163–166Shuihudi, 162Shujing, 129Shun, 155–156Shu Qing, 162–165Shuyu (A Record of Accusations), 145sibai (supervisor of harms), 146, 164Sino-British Joint Declaration, 355, 358–359Sino-Japanese War, 228, 240Sino-Portuguese Joint Declaration, 355Six Laws, 20–21Six Virtues, The (Liu de), 132, 152. See also

Liu deSnyder, Jack, 46Solidarity, 153Son, 141, 151, 155Soochow Comparative Law Advanced Stud-

ies Institute, 242–243Soochow University Law School (dongwu

daxue fake), 210–211, 216, 225–240,242–243; Chongqing and Shanghaibranches, 228, 237. See also Compara-tive Law School of China

Soros, George, 46, 49, 64, 68Sorrow, 138South Africa, 53“Southern barbarians” (the Man), 125South Korea, 50, 53, 87n58Soviet Union, 36, 38, 47, 50, 56, 64–65, 68,

84n45Special administrative region (SAR), 353,

356, 358, 362–368; chief executive (CE),367–368; government, 361–362,366–367; Preparatory Committee, 367

Spring and Autumn, 145, 158, 160Stance, 152. See also Firm StanceState Commission for Restructuring the

Economic System (SRC), 285State Council, 111–112, 285–286, 304, 319,

330, 361State Council General Office, 305State Council Legislative Affairs Bureau,

299

State Council of the Provisional Rules forState Industrial Enterprises (State Enter-prise Rules), 277–278, 280, 282

Statutes Commission, 181–182Stephens, Thomas, 101Strength, 152Subcommittee on East Asian and Pacific Af-

fairs of the U.S. Senate Foreign RelationsCommittee, 362

Subject, 141, 151, 155Sun, Shelley (Sun Xiaolou), 217, 235Sun Yat-sen, 19, 75, 92n96, 375, 395Suzhou University Law School, 243System of Democratic Management in Vil-

lages, 305. See also Notice on UniversallyCarrying Out Openness in Village Affairs

Taiwan, 53, 323, 353, 355, 375–387, 391,393–399, 401–403. See also Republic ofChina

Taiwanese legal aid, 402Taiwan Garrison Command, 384Taiwan Law Society (Taiwan Faxue Hui), 394Taiwan statutes; Anti-Hoodlum Law,

391–392; Assembly and Parade Act,393–394; Code of Criminal Procedure,392, 401; Military Trial Act, 390; Publica-tion Act, 385; Statute for the Employmentof Educators, 388; University Act, 395

tai zai (general manager or feudal “chancel-lor”), 152

Tamanaha, Brian, 69Tang, 140Tang Dynasty, 8–9, 221Tang Gong, 163–165Tang, Yu zhi dao (The Way of Tang and Yu),

155Temple University, 242Temporary Provisions for the Period of Mobi-

lization to Suppress the Communist Rebel-lion, 379, 383

Ten Thousand Things, The, 156Thatcher, Margaret, 255Things, 134. See also Material Things; wu13th Chinese Communist Party Congress, 300Thoughts of Our National Father, 395Thought reform, 28, 37. See also yundong“Three-ballot” system, 320. See also minxuanThree Principles of the People (san-min chu-

i), 375, 381, 395

424 Index

tian (Heaven). See also HeavenTiananmen Square Massacre, 26, 82n34, 303,

359tiaoli (regulations), 299, 329Townships People’s Congress (TPC), 310,

321Trial VC Law, 301–305, 306–308, 314–315,

317, 323–325Trubek, David, 53, 56, 69, 73, 76Tsinghua University (Qinghua Daxue), 242tuixuan (selected), 306Tung Chee-hwa, 361“Two-ballot” system, 322

Uniform Commercial Code (UCC), 14Universal Declaration of Human Rights, 65University of Hong Kong, 243University of Michigan, 242United Kingdom, 105, 240United States, 96, 104, 217, 226, 232, 238,

240–241, 356, 378, 402; administrativelaw, 110–111; Chinese legal studies, 94;comparative law, 210; Constitutionalism,105–106; Supreme Court, 366

United States Agency for International De-velopment (USAID), 49–52, 55, 57, 59,61–62, 65–66, 73

Upright, 148

VC Law, 306–309, 311, 313–316, 318–319,323–325, 328–330. See also Organic Lawof the PRC on Villager Committees

Vietnam, 9, 53, 278Views on Standards for Limited Share Com-

panies, 285–286Views on Standards for Limited Liability

Companies, 285–286Village Transparency Notice, 319, 327Villager Assembly (VA), 301–302, 306,

308–309, 312, 324Villager Committee (VC), 296, 298–303, 306,

308–309, 314, 317–318, 322, 324–328Villager Election Committee (VEC), 306Villager Representative Assemblies (VRA),

308–309, 324Virtue, 135–137, 139–142, 148, 155. See also

de

Wang Da, 191, 203Wang Chung-hui, 212

Wang Huitsu, 182War, 142Warring States, 129–130, 157, 164Watson, Alan, 70Way, the, 124, 132–133, 137, 140, 149, 153,

155; greater, 148; lesser, 148. See also daoWay of Heaven, 148Way of Humans, 148Way of Man, 148. See also ExcellenceWeakness, 152Wei, 127–128Wherry, Kenneth, 69Wife, 141, 151, 155Wigmore, John Henry, 216, 220Will, 138Wilson, Woodrow, 49Wisdom, 148, 150, 151Wolcher, Louis, 94World Trade Organization (WTO), 241, 328,

365Worthy, 157Writing and Authority in Early China, 138wu (material things), 131, 133. See also Mate-

rial Things; ThingsWu, John C. H. (Wu Jingxiong), 216,

224–225, 239Wu Rupan, 185–186, 196Wuxingpian, 147, 149

xi (practice), 131, 133. See also Practicexian (administrative district), 166xian (county), 297xianfa, 103–109. See also Constitution, Peo-

ple’s Republic of Chinaxiang (township), 297–298, 309xianling (some form of written laws), 135Xiangling, 127–128xian-tai-ye (county magistrates), 375xiao (filial piety), 151. See also Filial Pietyxiaoren (mean man),124xiaoren (little ones),124xin (good faith), 124, 143–144, 147, 150xin (heart), 124, 131xing (conduct), 148. See also Conductxing (mutilation punishments), 134xing (nature), 124, 131, 152. See also NatureXingan Huilan (Conspectus of Criminal

Cases), 181, 183, 187Xing zi ming chu (The Nature Derives from

the Mandate), 131–135, 138–140, 148

Index 425

xinrenpiao (confidence vote), 322Xi Zhong, 108Xu Chaosheng, 184, 195xunyin (chief interrogator), 152Xunzi, 131Xu Shaohua, 125, 129Xu Xing, 125

yang (nurtures), 133Yang Cheng, 193, 205Yang Shengsi, 186–187, 198yanjiusuo (graduate school), 223Yao, 155–156Ye Jianying, 354yi (righteousness), 124, 132. See also Justice;

Righteousnessyigu (“doubting antiquity” movement), 122Yin Dynasty, 154Ying, capitol of Chu, 123–124, 126, 128,

161Young Chinese Anti-Communist National

Salvation Corps, 377“You’re Too Narrow” (YTN), 115–116you sikou zheng (right assistant prefect in

charge of prison guards), 152youwei (accomplished, great, heroic), 136yu (case for official adjudication), 146yu (desire), 152. See also DesireYu, 139–140yuanzhang (principal), 215Yucong No. 2, 151yue (pleasure), 131, 133yujun (Our Lords), 159yundong (campaign or movement), 28. See

also Thought reform

yunniang (fermentation), 304. See also “fer-mentation”

Zakaria, Fareed, 74Zambia, 53–59zhang (extends), 133Zhangjiashan, 162Zhang Zhengming, 128Zhao Yang, 127Zhao Ziyang, 300zhen (town), 303zheng (murder case), 167zheng (prefect), 152Zheng Qin, 182zhengwu (government affairs), 327zhi (will), 131 zhidao (direction), 300zhiming (report back), 163zhishiren (delegate in charge), 160, 163zhong (loyalty), 124, 142–145, 147, 150zhong xin (inner heart), 142Zhong xin zhi dao (The Way of zhong and

xin), 142, 150Zhou, 125, 128, 144–145, 154; Western, 157Zhou Enlai, 69Zhou Tianming, 186, 198Zhuguo (Pillar of the State), 127Zhu Rongji, 296zizhi (self-government, self-management, au-

tonomy), 301, 317 zu (sections), 222Zun de yi (Respect Virtue and Righteous-

ness), 139, 142, 148Zuo Ma, 163zuoyin, 128, 135, 152, 163–166

426 Index