a diverse political landscape: juridical

legalism

-views human nature as inherently evil

-believes only strict laws and punishments can maintain social order and build a strong state

-prominent legalists: shang yang (introduced sever laws), han feizi (codified legalist thought)

-it influenced qin dynastys centralized auhoritarian rule, especially under qin shi huangdi and minister Li Si

-led to unification of laws across china, on bamboo slips

confucianism

-views human nature as reformable through education and moral example

-promotes rites ‘li’ over written laws, emphasizing proper behavior in hierarchical relationships

-believes law is secondary to morality, punishments only necessary when moral education fails

-originally opposed codified laws, idealizing a moral rule from sage kings of the past

-later thinkers like Xunzi merged confucian ideals with legalist enforcement

juridical system of the empire

-han dynasty: replaced harsh legalism with confucian influenced legal system, retaining many qin structures, emperor gaozu tried to abolish qin law but reinstated it in a softer form for governance needs

-dong zhongshus influence: based on confucian classic Chunqiu: governing by historical precedent, also the three authorities: ruler over ministers, father over children, husband over wife => basis of imperial justice, aligning legal decisions with confucian social order

-integration of law and morality: han had preformulated laws to address administrative complexities in a large empire, laws gained moral justification: they were seen as necessary to maintain harmony with heaven

-particularism vs universality: confucian law was particularistic and tailored to social status, family ties, loyalty and piety => priveleged classes received lenient treatment (unlike legalism)

concept of justice in chinese tradition

-justice is not grounded in universal human rights, but in fulfilling ones duties to the state

-legal protection is conditional: one only enjoys rights as long as they perform theirr obligations

-the legal systems primary goal is not to protect individual liberties but to preserve societal and state order

juridical reforms during end of qing

-background: china was defeated in the opium war and had to sign unequal treaties, qing saw western superiority and sought to modernize their own

-reform initiatives: by shen jiaben and wu tingfang, ambassadors had to study foreign legal systems, creation of commission for codification of laws, a modern law school was founded in beijing

-codification efforts: revisions of the qing legal code took place, drafts for criminal, procedural, commercial, civil law and plans for constitutional reform to transition from an autocracy to a constitutional monarchy

-japanese model: they modeled legal reform on the japanese legal system (removed western extraterritorial right and was itself modeled after continental european systems)

-civil code project: 1907: a constitutional committee began drafting a five part civil code => this failed because it was incompatible with chinas rigid traditional society, but it did lay the groundwork for future reforms

juridical reforms in republic of China

-post imperial legal continuity and reform: qing laws remained in use unless they contradicted republican values, republic continued legal modernization favoring western models

-early republican reforms: a committee for the codification of laws under the ministry of justice, a revised civil code was drafted in 1926 but not formally implemented

-civil code 1930: gained momentum under nationalist government in nanjing, the codificatioon responsibility shifted to the commission for civil codification under the legislative yuan, chinas first ever civil code was enacted

-role of the supreme court: before 1930 the supreme court didnt have a comprehensive civil law framework —> civil judgments were based on western legal precedents, civil provisions within the old qing criminal code, unused 1911 civil => these influenced the 1930 civil code

establishment of a new juridical system

-first: abolition of the old system —> 1949: CCP officially abolished the legal codes of the republican period including the 1930 civil code

-revolutionary laws: legal changes accompanied political reforms such as land reform and the three anti campaign, laws were enacted to support these movements

-institution building: the first constitution was adopted and institutions like the procurature and a regulated legal profession were created

-party dominance: despite formal structure, the partys policies were prioritized over legal norms, laws were frequently disregarded in favor of political reform objectives

decline and suspension

-hundred flowers and anti rightist campaigns: initial encouragement of free speech turned into political persecution, legal independence and rule of law were condemned as bourgeois

-collapse of legal practice: the legal professions largely disappeared in foreign trade, very few new laws were enacted

-legislation halted: the national peoples congress ceased legislative functions, efforts to create new codes (civil, criminal) stalled without implementation

cultural revolution and destruction

-total breakdown: the legal system was entirely dismantled, law was viewed as a capitalist tool that obstructed revolution

-rule by ideology: judicial functionsr were replaced by maos directives and party policy documents, formal justice systems ceased to function

reconstruction and reform

-post mao (1976): in the wake of the cultural revolution, the state pursued a comprehensive reconstruction of its legal system to promote stability and economic development

-democratic centralism: laws were seen as instruments to implement controlled centralized governance and prevent radical leadership shifts

modern juridical structure

-three pillars:

1) public security: handles criminal investigation and arrest

2) peoples procurature: approves arrests and prosecutes cases

3) peoples courts: render judicial decisions

-court hierarchy

1) supreme peoples court (beijing)

2) high court (provincial level)

3) intermediate courts

4) basic courts

-specialized courts: military, maritime, transport courts

constitution and legislative hierarchy

-organic law of local peoples congresses: permit local congresses to issue laws, provided they dont contradict national laws

-constitution: solidifies legislative power of NPC and its Standing committee, state council, ministers and commissions under the state council can issue rules within their administrative scope

-delegation of power: since 1985 state council has taken over a large portion of legislative work => economic reform and open door policies

legislative authority at sub national levels

-provincial and local governments: can issue local laws and regulations in Special Economic Zones, with varying levels of oversight and approval needed

-administrative institutions: produce rules aimed at solving immediate, localized problems, often ad hoc

hierarchy and legal uncertainty

-types of norms

laws: codified by the NPC, high status

regulations: issued by the state council, usually temporary and pragmatic, particularly in economic matters

-challenges:

legal status of regulations is ambiguous, often conflicting with laws, especially when reform oriented

NPCs legislative categories are undefined

standing committee can amend NPC laws during interims, vague in limits

widespread conflicts and enforcement problems

-lack of clarity and compliance: many local laws contradict the constitution and higher level laws, high noncompliance by local governments when asked to revise conflicting laws

-ambiguous authority: there are tensions between provincial laws and ministerial regulations (both often on equal administrative footing), dispute resolution is often informal through institutional negotiations rather than legal adjudication

interpretation and application of law

-general and vague legal texts: laws are written flexibly to allow policy shifts but this leads to legal uncertainty, courts have limited power to interpret laws (power lies with the NPC but delegated to the supreme peoples court)

-local interpretation: gaps in legislation lead local governments to create their own rules, judges frequently consult CCP political juridical committees for decisions, this reduces judicial independence

-legal analogy: while potentially useful to deal with vagueness, it lacks clear standards and is inconsistently applied

shortcomings post cultural revolution

-deficiencies of law on criminal procedures: vague/absent protections llike right to defense and judicial independence, unclear rules about legal assistence and when it could be accessed, lawyers were often appointed only shortly before trials

mediation over litigation

-mediation was preferred over formal litigation

=> mediation committees were locally elected, verdicts from mediation are non binding and parties can still go to court

court structure and independence issues

-organic law on peoples court: ensures independence from administrative bodies

-constitution mandates cooperation between courts, procuracies, public security, leading to overlapping roles

-court presidents are nominally elected by peoples congresses but in reality appointed by ccps political juridical committe

-judges often consult party bodies during trials, many are ccp

-judicial policies and campaigns originate from ccp and influence rulings

reforms and motivations

-hu yaobang and zhao ziyang started reform, emphasizing legalization to

=> reduce arbitrariness from the mao era

=> strengthen the legal foundation for both party authority and economic development

—> side effect: repressive laws were also legalized

problems in criminal procedure

-1979 criminal procedure law was undermined by temporary decrees during anti-crime campaigns

=> this allowed extended detention periods and fast tracked trials for security offenses

=> resulted in vague grounds for exemption from prosecution and limited oversight

=> judges often pre decided cases after reviewing evidence from prosecutors before trial

1996 revision of criminal procedure law

-major overhaul influenced by foreign legal scholar

=> introduced presumption of innocence

=> gave defendents right to legal assistance immediately after arrest

=> refined criteria for prosecution and exemption

=> removed provisions allowing: extension of case processing time, immediate trial for ‘public security threats’

administrative law reform

-1990: administrative procedure law

=> enables citizens to sue administrative bodies and reverse sanctions

=> grants procurators oversight over administrative actions

=> lack of standardized oversight leaves room for discretionary interpretation

development of legal profession

-1979: legal assistance is allowed

-1982: lawyers became state employees under the ministry of justice, expected to serve both the state and the client (conflicting roles)

-1985: private law firms permitted under regulation

-1997: legal profession law —> expanded the role of lawyers in legal processes, required a membership in the chinese association of lawyers, which oversees ethics and training, aimed to enhance professionalism and accountability

reestablishment and early challenges 1979

-judges and procurators were officially reinstated in 1979

-lack of training was a major issue, lot of them were retired military officers

reforms and legal education

-1995 law on judges: mandatory qualifications, ongoing training, performance evaluations for judges, aimed to raise professional standards and judicial competence

-legal education: law schools grew in number, legal professions also grew

-

rise in litigation and legal awareness

-following 1982 constitution, legal rights and juridical security became more prominent => massive increase in lawsuits

justice and citizenship over individual rights

-in traditional and modern chinese legal thinking, justice is closely tied to citizenship not universal human rights

-legal protection is conditional: individuals are protected as long as they fulfill their duties to the state —> failing to do so means losing legal protection

-purpose of the legal system is to ensure individuals serve the collective interest not to protect them from state overreach

the language reflecting collective emphasis

-quanli: personal rights but can be associated with profit and power

-quanyi: carries a more public or collective connotation and is used more frequently in legal discourse

=> quanyi is preferred, this underscores the collectivist orientation of chinese justice

Xi Jinping judicial reforms

-his reforms strengthen ccp influence in the judiciary

=> legal professionals must pledge loyalty to the ccp

=> number of judges is reduces, salaries are increased

=> recruitment of judges is managed by higher level administrative units, reinforcing central control

diverging emphasis in human rights interpretation

-both china and western countries endorse the universal declaration of human rights and its 2 major covenants (covenant on civil and political rights, covenant on economic, social, cultural rights)

=> western focus: emphasizes civil and political rights (freedom of speech, democracy)

=> chinese focuse: emphasizes economic, social and cultural rights (developoment, stability)

ratification overview

-ratified by china: womens rights, racial equality, childs rights, anti torture, rights of disabled persons, economic/social/cultural rights

-signed but not ratified: covenant on civil and political rights

-neither signed nor ratified: optional protocols on torture and civil rights, migrant workers rights, enforced disappearance

asian values debate and cultural relativism

-asian values argument: countries like china argue that cultural and political traditions justify a different interpretation of human rights

=> critics view this as cultural relativism, employed by regimes with poor human rights records

=> the idea that asia has a single set of values is problematic given the regions vast diversity

human rights as an evolving concept

-western human rights have evolved

-chinas conception of human rights is also evolving and has its roots in early 20th century revolutionary ideals

-peng chun chang, chinese scholar and GMD member was one of the authors of the 1948 universal declaration

public perceptions and political priorities in china

-preserving social stability is seen as governments top priority

-economic development is consistently rated as more important than democracy, especially by younger, wealthier and more educated citizens

=> implications: economic growth does not automatically lead to demands for civil/political rights, social disparities may be driving some increased interest in universal human rights, scholars suggest that china may follow a unique trajectory in human rights development, shaped by history culture and policy choices