Legal reforms in twentieth-century China

Few areas of research in China studies pose more difficulties than that of the Chinese legal system, primarily because of its unique position in Chinese society and relationship to the legitimacy of the nation's Communist authority. The Chinese Communist Party (CCP) is still the state's dominant political party and controls the executive, legislative, and judicial systems. Since 1978 the CCP's leaders have launched the reform movement, and China has experienced a tremendous wave of change. The shifting nature of the ongoing reform, however, is plagued by contradiction, uncertainty, and the clash of tradition and modernity. The reform movement has produced three major problems confronting students of Chinese legal practice: continuing Party influence, frequent changes of laws, and a gap between the government's promise and the courtroom reality. That gap between the promise of legal reform and the reality of legal practice makes understanding Chinese law and order very difficult for Westerners. This book examines the country's legal system and major judicial problems; it also introduces and explores the history and practice of constitutional rights by identifying key issues in Chinese ideology, government, and society. Using an analytical approach through new perspectives, this volume identifies some of the contradictions and even confrontations in Chinese policy making, explains the dilemma Beijing faces, and provides a better understanding of China's economic change, political concerns, social transitions, and legal reforms. Reform is never an easy task, especially in Chinese history. Many great reformers, such as Gongsun Yang (Shang Yang, 390-338 bce), Wang Anshi (Wang An-shih, 1021-1086), and Zhang Juzheng (Chang Chu-cheng, 1525-1582), having devoted much of their energy and time to strengthening their states, were executed, demoted, or denounced posthumously.1 At the end of the nineteenth century the Qing Empire (1644-1912), in deep crisis, experienced unprecedented challenges that were for the first time not from the "barbarians" but from "superior" powers, mostly in the form of Western states. If Qing's defeats by Western states such as Great Britain and France in both Opium Wars (1840-1842 and 1856-1860) failed to alarm the ruling elites, especially those advocates of the Self-Strengthening Movement,2 about the necessity of a thorough political change, the unexpected defeat in war by its junior neighbor Japan in 1895 prompted a massive call for a fundamental change from reformers inside and outside the court. Three years later Kang Youwei (K'ang Yu-wei, 1858-1927), a provincial degree holder and the driving force behind the 1898 reform, wrote to the young Emperor Guangxu (Kwang Hsu) (reigned 1875-1908) that a reform was urgent for the empire: The problem of [China] today is sticking to the old law and refusing to change. [China] is now situated in a world in which states compete with one other. If [the ruler] continues to do nothing, it will be like a person who wears a heavy coat in the summer or sits in a tall wagon moving into the water. There is no doubt that the person will be sick or drowned. . . . It is the natural principle that something new is strong, worn things are old; new things are fresh, worn things are rotten; new things are unobstructed, worn things are impassable. Once a law is too old, it must have many defects. Thus, no law can last over a hundred years without change. Emperor Guangxu, an admirer of the Meiji Reform (1868-1912), which made Japan a modern and powerful state in two decades, agreed with Kang and launched the 1898 Reform in an effort to transform China into a "rich and powerful country." Yet, because of strong opposition from conservative forces led by his aunt, Empress Dowager Cixi (Tz'u Hsi, 1835-1908), the reform was short-lived and lasted only 103 days. Kang Youwei, whose fate was not very different from those of previous reformers, barely escaped with his life and was forced into exile; his brother and five other reformers were executed. The animosity toward and harsh treatment of the reformers quickly diminished, however. The same suppressors of the 1898 reform turned into the chief advocates of a far more drastic and thorough reform. The late Qing reform, whose most notable achievements were its legal reform, marked the beginning of the three major legal reforms in twentiethcentury China: The late Qing and Republic of China (ROC), the early People's Republic of China (PRC), and the post-1978 legal reforms.