NCJ Number
47498
Journal
Georgia Journal of International and Comparative Law Volume: 7 Dated: (FALL 1977) Pages: 515-550
Date Published
1978
Length
36 pages
Annotation
THE NATURE OF THE CHINESE COMMUNIST LEGAL PROCESS IS DELINEATED; ITS SIGNIFICANCE FOR MODERN THEORIES OF LAW AND ITS SOCIAL MATRIX ARE DISCUSSED.
Abstract
CHINESE LAW IS NOT THE PRODUCT OF LEGISLATED CODES OR OF JUDICIAL DECISION AND EXPANSION, BUT RATHER THE PRODUCT OF INTERNAL WAR AND MASSIVE POLITICAL UPHEAVAL LEGITIMIZED PRIMARILY THROUGH MARXIST-LENINIST IDEOLOGY. IT IS ARGUED THAT THE EVOLUTION OF THE CHINESE LEGAL SYSTEM IS BOUND INEXTRICABLY TO THE CLASS STRUGGLE AND THE PROLETARIANIZATION OF BOTH THE SOCIETY AND ITS ECONOMIC DEVELOPMENT. IT HAD ITS ROOTS IN THE LEGAL PROCESS PRIOR TO THE 1949 COMMUNIST VICTORY, A PROCESS INTEGRAL TO EFFORTS AT POPULAR MOBILIZATION, POLITICAL DEVELOPMENT, AND SOCIAL TRANSFORMATION WITHIN AN AGRARIAN ECOLOGY. THE MASS LINE POLICY OF INTIMATE CONTACT BETWEEN THE GOVERNMENT AND THE GOVERNED, DEVELOPED IN YENAN PRIOR TO THE 'NEW DEMOCRACY' OR THE ESTABLISHMENT OF THE PEOPLE'S REPUBLIC, INSTITUTIONALIZED THE INITIATIVE OF THE PEOPLE AND COOPTED THEM INTO PARTICIPATION. THE MASS LINE WAS AN INFORMAL ADMINISTRATIVE INFRASTRUCTURE THROUGH WHICH ALL POLICIES, INFORMATION, AND SOCIAL PROCESSES COULD BE MONITORED. AS SUCH, IT ACTS AS A DEMOCRATIZING PROCESS BY LEGITIMIZING PLURALIST INTERESTS. THE YENAN LEGAL PROCESS, COUPLED WITH THE PRINCIPLES OF THE CHENG FENG MOVEMENT, RESULTED IN A LEGAL SYSTEM WHICH EMPHASIZED INFORMAL AND COLLEGIAL CRITICISM AND SELF-CRITICISM WITHIN A FRAMEWORK OF CONFLICT RESOLUTION THROUGH MEDIATION AND NEGOTIATION. ALTHOUGH A FORMAL LEGAL SYSTEM NOW EXISTS IN CHINA, IT EXISTS FOR 'ATTACKING THE PEOPLE'S ENEMY AND DEFENDING THE PEOPLE'S INTERESTS.' DESPITE THE ATTRIBUTES OF A FORMAL LEGAL SYSTEM, MEDIATION AND TRANSINSTITUTIONAL LEGAL PROCESSES NOW PROVIDE THE GREATER PART OF JUSTICE, AS THEY DID IN YENAN. MEDIATION COMMITTEES IN LOCAL NEIGHBORHOODS AND COMMUNES, MADE UP OF A CROSS SECTION OF RESIDENTS, SETTLE DISPUTES WITHOUT THIRD-PARTY ADJUDICATION IN A MANNER THAT IS INEXPENSIVE, CONVENIENT, AND IN LINE WITH POLITICAL IDEOLOGY. THIS LEGAL SYSTEM PERMITS CONTROLLED SPONTANEITY, MINIMIZES AUTHORITARIAN IMPOSITIONS, AND UTILIZES PEER PRESSURE AND PERSUASION FOR THE ENFORCEMENT OF DESIRED SOCIAL BEHAVIORS AND FOR THE INTERNALIZATION OF NEW VALUES. THE SUCCESS OF THE YENAN LEGAL PROCESS CHALLENGES WEBERIAN ASSUMPTIONS OF THE NECESSITY FOR FORMAL AND STRUCTURAL REGULARITY AS A PROLOG TO MODERNIZATION AND BELIES WEBER'S CONCEPTION OF REVOLUTION AS AN IRRATIONAL AND DYSFUNCTIONAL IMPEDIMENT TO SOCIAL CHANGE AND THE BEGINNING OF DEVELOPMENT. ALSO CHALLENGED BY THE YENAN LEGAL PROCESS AND ITS EMPHASIS ON CONFLICT IS THE NOTION THAT CONSENSUS IS THE BEST MEANS FOR ACHIEVING BROAD SOCIAL GOALS. IT IS SUGGESTED THAT UNDERSTANDING THE CHINESE LEGAL PROCESSES WILL REQUIRE A MORE FUNCTIONAL AND SENSITIVE APPROACH TO LAW WITHIN THE CONTEXT OF SOCIAL PROCESSES AND THE REVISION OF CERTAIN COMMONLY HELD ASSUMPTIONS OF COMPARATIVE LAW. NOTES ARE PROVIDED. (JAP)