Starr Chapter 12 The Rule of Law

1. Starr Chapter 12The Rule of Law

2. Rule of Law vs Rule by Law (Rule of Men) Rule of law • Law stands above all • All equal in the eyes of the law • Neutral arbiter • Enshrined as above men/women

3. Rule by Law (men) • Individual officeholder stands above the law • Use the law to accomplish own goals • Office holder is the arbiter to settle disputes

4. US Legal System • Protect the individual and their rights & freedom • All are equal before the law

5. Chinese Culture • Primacy of the family and society • Individual obligations & duties • Social stability trumps individual rights

6. The Greater China Journal https://china-journal.org/2016/05/16/mao-zedong-legalism-confucianism-similarities-differences/

7. Three antacedants of PRC’s Current 1982 Constitution • Legalism • Confucianism • Maoism/Leninism

8. Legalism • People are inherently evil • Good behavior requires carefully drafted laws • Backed by strict punishments & generous rewards • “As a matter of fact, the main purpose of the entire Chinese legal system was to protect the emperor and the dynasty…” Teon, 2016a • “Legalist traditions suited Marxist-Leninist emphasis on [protecting] dictatorial power [of the CCP], a strong centralised state, suppression of intellectual opposition and rule by law (instead of rule of law).” Teon, 2016a

9. Confucianism • Humans fundamentally good • Good behavior elicited by example of ruler • Subordinate obliged to obey • Superior to provide a moral example & benevolence • Inferiors have an obligation to remonstrate but not a right • Performance of the ruler not the written law is the key • “Legalism sought to establish a powerful, autocratic, centralised state in which the king ruled through a system of laws. Confucianism, by contrast, stressed the importance of morality and “rule by virtue” rather than “rule by law”.” Teon, 2016a

10. After Mao’s Death – Confucianism Rediscovered Teon,2016a • tool of moral and social control • analysis of the current Constitution (1982) reveals principles of three ideologies: • Legalism • Confucianism • and Leninism • By contrast, it has almost entirely discarded Marxism;

11. Mao • Overthrows traditional Confucian system • But maintains the hierarchical system for himself & the Party • Has a “lawless” state regarding Civil law • Instituted Soviet style Criminal law had three parts • Police – find criminals • Prosecutors – prosecute them • Judges – sentence them (no assumption of innocence) • Rules by ideology – correct thinking linked to his “instructions” • Marxism-Leninism stated – “law” was a tool of the old oppressing class against the masses -- therefore “rule of law” scoffed at but “rule by law” very useful for rulers

12. Lingering reflection of Maoist era • Crime to be “counter revolutionary” (now “endangering state security”) • Who decides what this is • Vague ideololgical concept • Thought reform through coercive indoctrination/presuation and hard labor • Back to the village (at best) • Gulag of sorts (at worst) • Presumption of guilt • Defendant needs to prove innocence

13. Opening to Global Economy • Need for legal system to assure foreign investors • Regulate transactions • Protect/Encourage Foreign Investment • Result remains vague & overly generalized • Unfortunate practice of “slaughtering the chickens to scare the monkeys” & role of foreign joint ventures • Environmental regulations • Labor regulations

14. Nytimes.com

15. Question on quality of new laws & legal system • Vagueness leaves law open to individual interpretation • No constitutional courts – only political/CCP bodies • Improvement in training judges, but still subservient to state • Lawyers kept on a short leash – main task to temper a sentence not suggest innocence

16. Human Rights Excellent area to understand the vagueness of Chinese legal system and primacy of the party not the law • Economic • Social • Political • Civil

17. Economic • First right is to a job & full stomach • No more famines in China • Guaranteed job until the opening to Global Economy • In past housing was also provided

18. Economic • What it isn’t clear • Private Property, Environmental enforcement, rights of labor • Unclear what control (rights) people have to their own housing – seizure of land without just compensation has led to thousands of demonstrations

19. Social • Free education • Subsidized health care – but recent strains • In past guaranteed pension, no longer so but system slowly coming into play • Danwei & Floating Population denied participation

20. Political • More but still limited • Some contested positions • Those proposing an opposition party received harsh jail terms • Elections limited to villages not higher levels

21. Civil • Freer but only if not seen as threat to the state • “counter revolutionary” ideas seen as threat to State/CPP

22. Civil… • Freedom of Religion example • Free to join a state sponsored and sanctioned religion • Environmental NGOs • Must be highly localized • Must have a Government sponsor (“babysitter” to watch over)

23. Current: Xi’s return to authoritarianism • Cult of personality – connect with the masses • More rewards & punishments • Anti-Corruption Campaign • Re-education camps • Even less interest in rule by law https://www.youtube.com/watch?v=41BsnHIMlFs

24. https://www.youtube.com/watch?v=ydPqKhgh9Mg

25. Take away • Different cultures lead to different legal systesm • Primary focus is Stability under the rule of the CCP • Main changes approaching “rule of law” are for international economic and trade purposes • Human Rights are interpreted differently under the “rule of law” and the “rule by law” • Confucian hierarchical relationships, duties and obligations are still central to Chinese governance • Current Constitution draws on Confucianism, Legalism, & Leninism