Chinese Law: Using the Past to Escape the Present

China’s Legal Reform Looks Back to the Mao Era

Amid the skyscrapers, bullet trains and brio of contemporary China, the Mao era may seem remote. Discussions of Chinese law, for instance, typically consign it to a squib if they acknowledge it at all. But this is a grave mistake. Legal reformers the world over routinely discover that the past does not recede, and China is no exception. The legal history of the Mao era deeply conditions the present, which means that our inattention to it at best deprives us of the background against which to read current legal developments and their dynamics, and at worst leaves us prone to fundamental misjudgments.

This is particularly true right now. In concert with an alarming, targeted crackdown on dissent, the tenor of Chinese legal reform has shifted, most noticeably since Wang Shengjun assumed leadership of the Supreme People’s Court in 2008. Whereas his predecessor was widely credited with advancing the professionalism of the judiciary, raising its stature and technical competence, and promoting an envelope-pushing, more assertive and independent role for the courts, Wang is associated instead with the return to the fore of motifs from the Maoist past. Lately, the CCP is again talking up its traditions of “socialist rule of law” and informal dispute resolution, the latter exemplified by the storied Ma Xiwu model developed during the 1940s in the poor, rural base areas from whence the Party launched its revolution, which, in its idealized form, would have cadres eschew the formalities of conventional adjudication, with its legal and procedural safeguards, in favor of channeling parties towards voluntary, mediated settlements guided by the relevant Party policies of the moment.

These apparent throwbacks are a response to genuine flaws in the capacity and performance of China’s formal legal institutions, but there are undoubtedly other goals in play as well. They include desires to shift social and political conflict from the judicial arena to less visible venues that allow for more flexible resolution, to curb law’s potential to expose, challenge and hold to account the exercise of state power, and to assert a nativist path that borrows judiciously from Western conventions yet remains defiantly apart from them and the alluring tenets of liberalism.

The question is, how to interpret these developments? As a historian, what is most striking to me about this moment is not that the Party is once again harshly repressing its critics or advancing an alternative to Western notions of the rule of law, but rather that the particular themes it has chosen to pair and celebrate are far from natural partners; indeed, they have actually long been antagonists. Thus, while the present marriage of “socialist rule of law” to Ma Xiwu-style mediation does in fact signal a retrenchment for the Chinese legal system, it reads less like a coherent, neo-traditionalist program for the future than an ambivalent, confused compromise among warring legal paradigms. An excursion into the legal history of the Mao era may help to clarify why.

In 1939, much of eastern China was under Japanese military occupation, and savvy communist propaganda was capitalizing on mounting discontent with the autocratic style and wartime performance of the besieged Nationalist government in Chongqing. Thirty years of legal modernization had endowed China with Western-style law schools, legal codes, courts and lawyers, but in the cities these institutions were buckling under the pressures of the war, and in the vast countryside they penetrated unevenly if at all. Their foreign origins and associations with imperialism, and their disconnection from China’s daunting social, political and economic inequities stoked simmering criticism and calls for reform.

Against that background, a law student named Wang Huai’an left his studies at National Sichuan University Law School, where he served as secretary of the university’s Communist Party branch, to escort a group of educated and idealistic youth on a grueling, two-month journey to the CCP’s rural headquarters in Yan’an. There he joined a New Law Society founded by recently arrived lawyers and judicial personnel devoted to promoting a “New Democratic Rule of Law Movement” that would adapt aspects of the Nationalist government’s formal legal system to the populist, revolutionary ideology of the CCP, producing law that was grounded foremost in China’s national conditions and that was far more comprehensible, responsive and accessible to its people.

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The Party wasted little time in tapping the group members’ skills, catapulting them to the top of its judicial hierarchy, where the young Wang improbably served as a judge and then a tribunal president on the High Court of the Shaan-Gan-Ning Border Region, the CCP’s core revolutionary base area. (See map above) Led by Li Mu’an, who was one of China’s earliest modern law graduates and prosecutors, and a pioneer in the organization of the professional bar, they worked for nearly eighteen months to expand and systematize the skeletal infrastructure of the region’s two year-old legal system, raise the rudimentary knowledge and skills of rural CCP legal personnel, standardize judicial practice, introduce elements of judicial independence, and codify substantive and procedural regulations and laws. According to Li’s 1942 Report on the Work of the Court, they strove: “1) to raise the spirit of the rule of law in the Border Region; 2) to conscientiously implement Border Region laws; 3) to enable the people of the Border Region to obtain the safeguards of law; 4) to establish a legal system suitable to the Border Region.” However, the following year, Party rectification—a periodic campaign to stamp out heterodox thought and behavior within the CCP—abruptly ended their experiment, and in the ensuing witch-hunt seventeen of the High Court’s thirty-six cadres were labeled enemy spies, including Wang, who was stripped of his position and imprisoned for more than two years.

In the backlash, the contrasting, emergent Ma Xiwu model of dispute resolution, characterized by muscular Chinese nativism and preferences for ideological purity over legal knowledge and professionalism, informal mediation over adjudication, and fidelity to Party policy over codified law and procedure moved in to fill the void, sparking a long-running dialectic at the heart of PRC law that continues today. Signifying its ascendance, Judge Ma Xiwu himself, a peasant cadre with no formal legal education, was named to lead the Border Region’s High Court in 1946.

After the founding of the PRC in 1949, the Ma Xiwu model proliferated across China. Although many disputants, at least in the cities, seem to have wanted to go to trial, the incapacity of the formal legal system and ideological biases channeled most of them instead to mediation, which adapted more quickly to shifts in policy. Mediation was also faster, cheaper and less demanding to establish and operate, and caused less disruption to the rhythms of their lives and the productivity of their labor, all arguments adduced in its favor today.

Nevertheless, a desire to institute the rule of law lingered among some of the PRC’s judicial architects, particularly those with a Republican legal education. A “socialist rule of law” discourse arose, and from it the Ministry of Justice, which administered the budding courts, promoted many of the professionalizing goals the New Law Society had championed a decade before, this time buoyed by reference to Soviet models. It pushed codification projects and technical training, simplified judicial procedure and access to the courts, probed the boundaries of judicial independence and fought against encroachments upon judicial authority and derogations of judicial process.

The two conflicting paradigms of justice coexisted for a time, and Wang Huai’an sat at the center of their fragile détente and its inevitable breakdown. Exonerated after subsequent shifts in the political winds, he had risen in 1948 to the Presidency of the Harbin People’s Court and, after the founding of the PRC, he led the national Ministry of Justice’s Secretariat for approximately eight years, where he joined Li Mu’an, now Deputy Minister of Justice, as a principal drafter of the 1954 Law on the Organization of the People’s Courts. Pursuant to the Ministry’s jurisdiction over the courts, in 1956, Wang fatefully led an investigation team to Sichuan province that documented and audaciously reported on instances of injustice, torture and usurpation of judicial power by public security personnel. The following year he also led a survey of case files that awkwardly spotlighted the spiraling social costs of the revolution by finding that the laboring masses now accounted for the vast majority of criminality in the countryside, and that, contrary to ideology, their share was actually rising as socialism advanced. This forthrightness earned him powerful enemies, and when the Anti-Rightist Campaign struck he was accused of anti-Party crimes, sent to Manchuria for two perilous years in a labor camp and then to a farm to raise pigs. Furthermore, for its impudent attachment to legality, the Ministry of Justice was accused of “changing color” and then closed in 1959. Nine of its highest ranking cadres were harshly punished as an anti-Party clique, and the CCP once more affirmed the primacy of the more compliant Ma Xiwu model of justice.

Later, when the post-Mao leadership of the CCP moved to reconstitute the legal system after the ravages of the Cultural Revolution, it turned again to the persecuted experts in its midst. After more than twenty years as a rightist, Wang was rehabilitated in 1979. All around him former colleagues from the 1950s similarly resurfaced, tasked with restarting their abortive efforts to build up the courts, legal education, the bar, substantive law and judicial process. In a more congenial political environment, the institutions they re-seeded have matured over the last three decades into the landscape of Chinese law we know today. Unsurprisingly, this turnabout was heralded by a revival of “socialist rule of law” discourse, which, along with the correlative principle of judicial independence, began a winding ascent to constitutional validation. Along the way, Wang helped to rewrite the book on how Chinese judges adjudicate, campaigning to reintroduce professional standards and practices at the expense of Ma Xiwu’s hoary informalism. Not insignificantly, on January 25, 1983, when the Supreme People’s Court commuted the death sentence given to Mao’s widow, Jiang Qing, the most reviled member of the Gang of Four, to life imprisonment, the tightly drafted judgment bore Wang’s signature as Presiding Judge and Court Vice President.

Wang’s story reminds us that the Chinese legal system has a deep biography; the ongoing struggle to reconcile law with an authoritarian party and its taste for untrammeled political power, the flux between formal and informal modes of dispute resolution, the tensions between law as a tool of discipline and of empowerment, and the search for a legal system that is at once modern yet affirms China’s political and cultural sovereignty have coursed powerfully through nearly a century of Chinese history. This is to say nothing of still older traditions, and they have left profound imprints upon structures of power, ideas, behavior and organizations.

The current wave of approving references to “socialist rule of law” and Ma Xiwu-style mediation conforms to this pattern. That the Party is now grasping at two antagonistic traditions hints at how internally divided it may be and how constrained it may feel its choices are. Simply bolting them together is not a practicable way forward. Absent an unprecedented commitment to synthesis, this mash-up amounts to an uninspired muddle suggestive of defensiveness and a poverty of ideas, and it invites instability or conflict. More to the point, it avoids a key question, one the Party has grappled with since the New Law Society flagged it in 1941: “[t]he New Democratic Rule of Law must become a tool for defending national and personal interests that the people themselves genuinely comprehend and use…to have a fine legal system that the people cannot actively use is for that fineness to be in vain, and for the rule of law to become a problem.”

Heeding that caution today poses formidable technical challenges to the Party to be sure, but still more so political ones given the abundance and intensity of popular grievances at every level of society. It would require a singular leap of faith, since in reality the CCP has never fully submitted to law before, even law of its own creation. To do so would be to acknowledge a source of authority outside of itself, and to risk unraveling the monopoly on power and privilege that sustains its supremacy.

In light of past experience and recent setbacks, it is notable that the “rule of law” remains a vital, positive part of the conversation about legal reform in China, an indication perhaps of the concept’s legitimating power and how much the terms of the debate in the PRC have shifted. As we listen to that conversation, and think about what the rule of law, “socialist” or otherwise, means and requires in China, we should remain cognizant of its profound, concrete, localized history. Rather than turn our backs to that history, we would do better to acquaint ourselves with it in detail and consider creatively the possibilities it conditions, constrains and enables, even if these deviate from our own models, normative preferences and categories. To do otherwise diminishes our wisdom about both its present and future.

Courts, Justice, Legal System