INternational Journal of Criminal Justice Sciences

Vol 1 Issue 2 July 2006


 

Legalism and Constitutionalism in the People’s Republic of China

 

Kam C Wong[1]

University of Wisconsin
Oshkosh, USA

 

 

Abstract

There are repeated claims that the police in the People’s Republic of China (PRC), i.e. Gongan (police) or Jincha (public security) abuse their legal powers. This has been attributed to a lack of institutional supervision and a failure of legal control over the proper exercise of police power. Most tellingly, a great number of people in the PRC criminal justice system consider the current legal procedures regulating police powers as a burden and waste of time and money.  Particularly, the police think that it is more important to get correct results than to abide by procedure rules, i.e., "zhong shiti qingchenxu" (emphasize substance and slight procedures). Police studies in the U.S. suggested that the underlying cause of police abuse of power is beyond the lack of administrative or legal control; they point to larger social, political, and cultural forces at work. This paper identifies and discusses two cultural reasons -- the lack of an entrenched legal culture in the rule of law and the absence of an ingrained constitutional spirit in limited government -- in an attempt to explain PRC police abuse of power.

 

Keywords: China; Criminal justice system; People’s Republic of China; Police abuse

____________________________________________________________________________

 

Introduction

There are repeated claims that the police in the People’s Republic of China (PRC), i.e. Gongan  (police) or Jincha (public security) abuse their legal powers.[2] This has been attributed to a lack of institutional supervision and a failure of legal control over the proper exercise of police power. [3]Most tellingly, a great number of people in the PRC criminal justice system consider the current legal procedures regulating police powers as a burden and waste of time and money.  Particularly, the police think that it is more important to get correct results than to abide by procedure rules, i.e., “zhong shiti qingchenxu" (emphasize substance and slight procedures).

Police studies in the U.S.[4] suggested that the underlying cause of police abuse of power is beyond the lack of administrative or legal control; they point to larger social, political, and cultural forces at work. In line with this structural-cultural approach, this paper identifies and discusses two cultural reasons - the lack of an entrenched legal culture in the rule of law and the absence of an ingrained constitutional spirit in limited government, in an attempt to explain PRC police abuse of power.

The paper is organized into three parts. After the introduction,
Part I identifies the problem under discussion that is the seriousness and prevalence of abuse of power by the PRC police which is done by offering a case study of Hong Kong merchant being illegally detained in PRC for a substantial period of time (487) days in 1999.  Part II and Part III offer two distinctive cultural-legal reasons that are the “Lack of Rule of Law” and the “Lack of Constitutionalism,” to account for the observed abuse of power by the police in China. Finally the paper concludes by observing that in as much as the reasons behind police abuse of power in China are cultural-structural ones, the more effective solution is by means of education, supervision, and
discipline and not just legal punishment or constitutional check and balance, as suggested by some western scholars.

 

Part I

 Police Abuse of Power in China: A Case Study

On Sunday, October 24, 1999, Lok Yuk-Sing, 63, returned home to Hong Kong after 16 months (487 days) of detention without trial in Inner Mongolia, China. Allegedly, Lok was detained over the Lai Sun Group’s (Lok’s ex-employee) $4 million commercial debt dispute with China.  Lok was released after his family paid a $50,000 “bail” to the local public security officials. The HKSAR government insisted that the mainland authorities acted in accordance with mainland law. Was Lok arrested and detained legally in China? If not, how prevalent is the problem of illegal arrest and detention in China? What are the causes of such police abuse of power? What steps have been taken to control police abuse of power in China?  All these are questions and issues of great interests to China bound criminal justice scholars and are made the central focus of investigation to this paper. Whether Lok’s arrest and detention is illegal can be analyzed two ways – substantively and procedurally. Substantively, it is not altogether clear (from what little we know about the case) whether the Inner Mongolia police has the legal right to charge the Lai Sun Group, and by extension its responsible agent in China, with a criminal offense for an alleged commercial fraud. More pointedly, there is no evidence of Lok’s personal involvement, e.g. complicity or culpability, connecting him, personally or as an agent, to the alleged commercial fraud.

In this regard, it is ought to be mentioned that as a state policy, the Chinese political, legal and police leadership has long frowned on using the criminal process and resorting to police power to secure the return of commercial loans.[5] Procedurally, it is apparent that the PRC Inner Mongolia police have acted beyond the PRC Criminal Procedure Law (1996) (CPL) in subjecting Lok to lengthy investigative detention without prior approval or subsequent charge or trial.  According to Lok (who informed this author), he was not tried and the People’s Procuratorate has failed to approve of Lok’s arrest three times.  Thus, Lok was not properly detained, arrested or otherwise subjected to “compulsory measures.” Under the CPL Chapter VI and People’s Police Act (1995) (Article 12), the PRC police has the legal authority to employ appropriate compulsory measures to summon for investigation, detention, arrest, guarantor pending trial or residential surveillance against a criminal suspect for investigation purposes.  However, strict legal procedures must be followed.

First, the Inner Mongolia arrested Lok in Dongguan without a warrant; at least not to Lok’s knowledge. This is a blatant violation of CPL Article 66 which states that, “When a public security organ wishes to arrest a criminal suspect, it shall submit a written request for approval of arrest … to the People’s Procuratorate…” and CPL Article 64 states that, “When detaining a person, a public security organ must produce a detention warrant”. Cross province arrest further requires the affirmative approval of senior level police administrators of both provinces. There was no record of such approvals having been sought and granted. Secondly, CPL Articles 64 and 71 require the public Inner Mongolia security to inform Lok’s family of the reason and place of detention within 24 hours of detention or arrest. This was not done. Thirdly, CPL (Article 2) makes clear that, “The aim of the Criminal Procedure Law … is: to ensure accurate and timely ascertainment of facts about crime … protection of innocent against being investigated for criminal responsibility…” Thus, CPL requires the Inner Mongolia public security to interrogate Lok within 24 hours after his detention (Article 64) or arrest (Article 72), and release him if no incriminating evidence is found or criminal charge forthcoming. If there is a further need for investigation, other less imposing and restrictive compulsory measures are to be used to continue the investigation, e.g. guarantor pending trial or residential surveillance.  Lok was finally placed under residential surveillance, albeit at a much later date and long beyond the time limit provided for by law. Fourth, CPL Article 124 provides that holding a criminal suspect in custody during investigation after an arrest shall not in any event exceed two months. The People’s Procuratorate at the next higher level can grant another one month to facilitate difficult and complex investigation. In this case, Lok was detained for 16 months.  This is clearly exceeding the optimal limit for investigative detention allowed by law.

Last but not least, CPL Article 75 provides that, “If the compulsory measures adopted by … a public security organ exceed the time limited prescribed by the law, the suspect … shall have the right to demand cancellation of the compulsory measures…” Lok has every right to challenge the legality of his release granted under guarantor (CLP Article 56) pending trial. Lok’s case is not an isolated incident.[6] He is not the first Hong Kong businessmen to be detained in China without trial for a long duration of time, over contractual disputes and commercial debts. According to the HKSAR, the government is aware of 51 such cases of illegal detention (according to Hong Kong Human Rights Watch there are 80 odd cases). 

More generally, illegal detention and over-extended detention is not new, nor is it a small problem in China.  It reflects and reinforces larger and longer trend.  For example, in 1986 Chinese official data showed that of the many thousands of “detention for investigation” cases nationwide only 36.3% met all legal requirements, with some provinces falling below 10%. The illegal detention problem is more prominent in the southern part of China than in the north, e.g. official self-reported data showed that in 1990, 5.7% of all arrests in Beijing ended up as illegal or over-extended detention while 23.8% of arrests in Guangdong ended up being illegal. Illegal arrest and detention variously been has been used as retribution (“yiquan dai fa”), summary punishment (“dai xing”), in aid of investigation (“dai cha”) and settlement of commercial disputes. [7] Cases studies showed that there were also many cases resembling Lok’s plight where illegally detained person were forced to share room with and subjected to abuses of dangerous criminals; with little food to eat and still worse living and sanitary conditions. The problem of using police powers in China to settle contractual disputes or return of commercial debts stemmed in part from the following reasons:

From the perspective of the Chinese party, some of the commercial debts are secured by less than savory means, e.g. corruption, or resulting from grossly unfair bargains, e.g. no good faith effort to perform.  This provides the righteous aggrieved party a rationalization to invoke the police; a quintessential righteous force, to punish the contract on higher moral ground. The PRC commercial dispute resolution system, from arbitration to litigation, is not adequate to satisfy the needs and expectations of the people.  The legal system is commonly viewed as not being able to protect the legitimate interests and legal rights of the litigants, that is being expensive (e.g. costly in time and money to mobilize), unfair (e.g. corruption), inefficiency (e.g. incompetent jurists), and ineffective (e.g. legal judgment not obeyed or enforceable). In all, people have no faith in the legal system to solve their commercial disputes fairly, equitably, expeditious and in a satisfactory manner.  This gives the frustrated and impetuous litigants the excuse, if not even a justification, to take law into ones own hand, that is self-help, to protect their economic interests or personal rights.  This calls to mind the resort to triad run collection agency for the collection of debts in Hong Kong.

The inadequacy of Chinese legal system is aggravated by two facts when it comes to cross province or region commercial disputes:

(1) The legal mechanism and judicial process to secure the performance of legal obligations, e.g. contract and judgment, against out-of-town litigants, are much ineffective since the litigants are able to avoid with ease the attachment of legal process and execution of judicial orders of the original jurisdiction (in this case Inner Mongolia) by leaving town.

(2) As a result of “one country two system” policy the PRC court jurisdiction and judicial powers cannot be made to extend to Hong Kong. The legal obstacles result from the former and political reality arising from the later, led to the common held belief in China that nothing can be done once the out-of-state party litigant manages to leave town.  As a prudent measure or last resort, the police, as the ultimate and omnipotent state power, are often called upon to detain the out-of-state party until the commercial dispute is “satisfactorily” resolved. In order to do so legally, the police needs to conduct a “pre-textual” arrest based on a “cover-charge” since commercial fraud is a convenient charge.  In so doing, the police subvert the criminal law process in aid of the civil court proceeding. This calls to mind the frontier days in the U.S. when the sheriff was called to force the out of town people to settle scores with the town people before he was allowed to leave.

The PRC police are being controlled legally and administrative by central police command from Beijing but are also held responsible politically to the local party apparatus and financially to the local government agency. In terms of day to day operation the central command and control system takes hold.  However on major strategic direction and pressing policy issues, the local political and government authorities have a dominating influence.  When well-connected local businessmen get into trouble, they will turn to the police for help. This calls to mind the big city police in the U.S. in the1880s where the police peddled their services to and protection for the local politicians.

The rule of law culture has yet to take root in China. Deng’s pragmatic teachings promotes an end justify means culture. The market economy has fostered a permissive attitude towards law.  In the end, not withstanding admonitions by the currently political leadership to the contrary, achieving substantive justice, e.g. return of commercial debt, is still considered more important than following proper legal procedure, e.g. suing in civil court.

The PRC political leadership, legal authority and police administrators are not unaware of the problem. For example, the PRC People’s Procuratorate have been diligent in using its “weifa jiuzheng” (correction or legal violations) power to correct some of the more blatant and persistent police illegal arrests or over-extended detention cases. For e.g., in 1990, of all the “correction for legal violation” actions taken against the police for abuse of power, a full 89% is for illegal arrest and detention and in 1991 it was 85.6%. Prosecution of illegal arrest and detention or search cases has increased from 21.2% of all violation of democratic rights of citizens in 1979 to that of 67.9% in 1985.  The Ministry of Public Security, People’s Procuratorate and People’s Court have issued repeated notices and stern warnings against the misuse of police powers, especially for the settlement of commercial disputes.  Finally in 1996, the PRC Criminal Procedure Law was revised to further regulate what has been perceived as runaway police powers, particularly investigative detention and arrest powers, e.g. by doing away with “sheltering for examination” (shousheng) powers. However, in spite of all these effort, police abuse of powers has not been abated to the extent that China bound traders and businessmen can feel secured. [8]

Further protection for China traders must await the graduate maturation of China’s budding judicial system and legal culture.  This will take a long, long time.  To this issue we now turn.

 

 

Part II

Lack of Rule of Law

Legal Culture Defined

Legal culture has been defined by Lawrence Friedman as: "those parts of the general culture - customs, opinions, ways of doing and thinking - that bend social forces toward or away from the law and in particular ways."[9]  The rule of law, as a unique kind of legal culture, is mainly a "western" concept.[10]  The concept has come to stand for responsible and accountable governance.  It incorporates and encompasses a number of fundamental, albeit lesser, principles: (1) The rule of law is a jurisprudential principle in providing that no one is above and beyond the law.[11] (2) The rule of law is a political principle in providing that a state is to be governed by law, and not man.[12]  (3) The rule of law is an ethical principle in standing for liberty, fairness and equality.[13]  However, in its essence, the rule of law is not just a jurisprudential, political, or ethical principle.  It is all these and more.  It is the spirit of a people,[14] a way of looking at, thinking about, and acting upon life in general and social order in particular.

 

Some empirical evidence of a lack of rule of law

            There is no readily available index of the rule of law culture in China.  However, we can look at three sets of PRC official data to inform ourselves of P.R.C.'s general attitude towards law.  First, we can look at how party cadres were treated when they offended the state law or violated party discipline.  The rule of law requires that all party cadres are to be treated equally before the law, i.e. high officials should be treated the same as lowly ones.  Second, we can look at how much confidence the general public has in the legal system. A sound legal system should inspire confidence and promote reliance, i.e. people should feel comfortable in airing their complaints with the legal system. Third, we can look at how responsive the legal system is in redressing people's complaints. A responsible legal system should provide a meaningful way for the public to correct administrative decisions and legal errors.

 

How cadres are being disciplined?

          In the P.R.C. one way to hold state and government officials accountable is by filing a complaint with the Party's supervisory organs.  Such organs serve as watchdog disciplinary agencies over public officials’ misconduct.  The Law Year Book of China reports on the performance of such agencies annually. Our starting hypothesis is that if the rule of law culture prevails in China supervisory activities and disciplinary actions over official misconduct will be based on merits and not on the relative status of the officials (the ganbu ji) involved.  That is to say we should expect similar treatment of high and low officials for like transgression.

          The complaints processing statistics provided by the Party supervisory organs show a different picture. Higher officials were treated much more leniently than lower officials. In 1990, about one in every two (47.6%) complaints of misconduct by citizens was actually processed. Of those, about a quarter (23.1%) of the cases made it to the lian stage (initiating an investigative file), i.e. substantiated enough to warrant the opening of a case file.  Of note is the fact that punishment was recommended in over 91% of the lian cases.  Thus for all intent and purpose lian means that a case is very well substantiated.

          The 1990 statistics on complaint processing by supervisory organs (Table  4) shows a clear pattern.  The lian rate deteriorates as the cadre status (ganbu ji) escalates. Thus, while in general an average of 23.1% of the processed complaints ended up being substantiated with an open file (lian), only one in twenty complaints processed at the Ting/Ju level was found to be substantiated. More significantly, for our analysis, the substantiation rate deteriorates each step up the cadre status levels. The punishment rate also shows that people in higher office fared better.  Thus, whereas over 91% of lian cases received some forms of recommended punishment, in cases involving  the Ju (bureau), Chu (office), Ke (branch) officials, punishments were recommended in 74.4%, 64%, and 76% of the lian cases respectively.  More tellingly whereas about 15 officials were recommended for punishment for every 100 complaints filed at below the Ke level, by the time we reach the Ju level only 1.7 persons were recommended to be punished for each 100 complaints filed against them. The disparate treatment of complaints against officials is a good reflection of a lack spirit of rule of law.        

 

Table 1: 1990 Complaint Cases Handled by Supervision Organs Nation-wide

 

Cadre Status (Ganbu Ji)

Total

Complaints

Complaints Processed

Complaints Recorded (lian

Punishment *

 

Ting/Ju

7529

3115 (41.4%)**

176 (5.6%)

131 (74.4%) (1.7%)***

Xian/Chu

56909

22054 (38.7%)

2784 (10.4%)

1781 (64%)

(3.1%)

Xiang/Ke

176696

72845 (41.2%)

13947 (19.1%)

10588 (76%)

(6%)

Others

226575

124569 (55%)

34518 (27.7%)

34485 (99.9%)

(15.2%)

Total

467709

222583 (47.6%)

51425 (23.1%)

46985 (91.4%)

(10%)

Source: abstracted from Law Year Book of China 1991 (Beijing: Law Year Book of China Publication), p. 957

Note:      * Punishment includes recommendation for disciplinary actions (chufan)

                ** Stage wise attrition rate  =  present stage over last stage.

                *** Cumulative punishment rate  =  punishment over total complaints

 

How much confidence the public have in the law

          The people in China have little confidence in the rule of law to address their daily problems and concerns.[15]  This is evidenced by their reluctance to seek out the legal agencies - procuratorate and court - to air their grievances.   The data from the Supreme People's Procuracy showed that in the period of  1986 to 1991, the people's visits (to file complaints) with the nation's procuratorate organs and courts dropped sharply.  Thus people's visits to the procuratorial organs decreased from 1008483 in 1986 to that of 763365 in 1991, a drop of 24.3%.  In the case of the courts the decrease was still more pronounced.  Court visits dropped from 9071038 in 1986 to that of 4321957 in 1991; a decline of 52.3%.

 

Table 2: 1986 - 1991 Letter or Personal Visits with People's Procuratorial  Organs Nation Wide

 

Visits

1986

1987

1988

1989

1990

1991

1986 - 1991

Letter

773336

725044

(- 6.2%)

701728

(- 3.2%)

1041126

(48.4%)

738436

(-29%)

596108

(- 19.3%)

 -177228

(-22.9%)

Person

235147

224430

(- 4.6%)

232297

 (3.5%)

220716

(- 5%)

171984

( -22.1%)

167257

(- 2.7%)

- 67890

(-28.9%)

Total

1008483

949474

934025

1261842

910420

763365

245118

 

Table 3: 1986 - 1991 Letter or Personal Visits with People's Courts Nation Wide

 

 

Visits

1986

1987

1988

1989

1990

1991

Letter

4734847

4520822

3570685

2287737

2230383

2005340

Person

4336191

4546280

4175204

2681484

3046858

3115277

Total

9071038

9067102

7745889

4969221*

5277241

4321957

Source: abstracted from Law Year Book of China (1987 to 1992) (Beijing: Law Year Book of China Publication), pages (1987:884); (1988:817); (1989:1083); (1990:995);(1991:937); (1992:861).

Note: * This does not include non complaint (feisu) visits, a new distinction drawn in reporting.

 

            From the visitation data we can surmise that, people are increasingly disillusioned about their legal institutions.  They have little confidence in the legal system to solve their problems and address their concerns; especially against government abuses.  In brief, the public has very little faith in the rule of law and associated legal process.

 

How the procuratorates react to the citizens' request for legal review

          The people's disillusionment with the legal system is not without grounds. Citizens' complaint processing rate and case attrition statistics published by the Zhongguo Jiancha Nianjian for 1990 to 1991 show that the chances of having a prior police action reversed is very slim.  The overall success rate for having an original adverse police or procuratorate decision amended in 1990 and 1991 is less than one percent, i.e. 1% and 0.86% respectively.  In the case of challenges to detention and arrest decisions (i.e. mainly police actions) the percentage drop still lower.  In 1990, 3 out of 3,950 detention decisions were amended.  This is 0.07%.  In 1991 the amendment rate though better, was not encouraging; 9 out of 2660 cases were amended for 0.34%.  The refusal to accept arrest decisions follows the same pattern.  In 1990 only 3 out of 9932 complaints were amended.  In 1991, it was 24 out of 8211 cases. 

 

Table 3: 1990 - 1991: Complaints (shensu) handled by the People's Procuratorial Organs Nation wide: Stage wise attrition rate and cumulative success rate

 

Nature of cases

Year

Cases accepted

Cases filed

Cases disposed

Decisions amended

Success

rate

Total

 

 

 

1990

 

1991

73355

 

130827

9246 (13%)

 

12307 (9%)

4144 (45%)

 

4593 (37%)

809 (20%)

 

1124 (24%)

1%

 

.86%

Refuse to accept  detention (juliu)

 

 

1990

 

1991

3950

 

2660

168 (4%)

 

127 (.5%)

31 (18%)

 

33 (26%)

3 (10%)

 

9 (27%)

.07%

 

.34%

Refuse to accept arrest (dibu) *

1990

 

1991

9932

 

8211

168 (2%)

 

1046 (13%)

31 (18%)

 

157 (15%)

3 (10%)

 

24 (15%)

.03%

 

.29%

 

Source: extracted from Zhongguo Jiancha Nianjian (1991) (1992) (Procuratorial Yearbook of China 1992, 1993) (Zhonggou Jiancha Chubenshe, 1993, 1994),p. 347 (191) p. 367 (1992)

Notes: * The other reported "bufu" categories are: filing cases on record (lian); dismissing cases (chean); approval for arrest (pibu); instituting prosecution (qixu); exempt from prosecution (mianyu qixu); sentencing (panxing); labour reform (laogai); civil judgment (minshi panju); and  administrative judgment (xingzheng panju).

 

Some reasons for the lack of an entrenched legal culture in the rule of law
        
China does not have an entrenched legal culture in the rule of law.
[16] There is no well developed intellectual history,[17] and firmly entrenched cultural heritage[18] favoring the use of law to govern the state, rule the people, or resolve disputes in China.[19] "Traditionally, great emphasis was placed on obedience, proper conduct, moral training, and the acceptance of social obligations."[20]

More pertinently, the spirit of rule of law, as discussed above, never gain a strong foothold in China.[21]  There are many reasons for such absence:

          (1)  The Chinese society has few needs for law to maintain social order.  Societies exhibit different propensities for conflict, deviance and disorder.  Societies that are highly structured, i.e., those with clearly defined roles and relations, have less disorder.[22]  Societies that are tightly integrated, i.e. those with common identity, shared values, and communal spirit, have less deviance.[23]  Societies that are well settled, i.e., those with a long history, continuity and stability, have fewer conflicts.[24]  Lastly, societies that are closed, i.e. those that are independent, self-sufficient and self-referenced, have less instability.[25]  Historically, China was highly structured, tightly integrated, well settled, and very stable.[26]  In sum, it is a very well ordered society.

          (2) The Chinese people do not think legally. Thinking legally is an endowed capacity, acquired skill, as well as a developed habit. Thinking legally requires certain kind of mental capacity and  thinking process,[27] i.e. thinking logically, conceptually, abstractly, universally, and theoretically.  

          The Chinese are observed to think in concrete, particularistic, holistic and practical ways.[28] They are factual and contextual thinkers. The Chinese thinking process is characterized by the acceptance of actuality:

          (a) Comprehending the phenomenal world in absolute terms;

          (b) Preferring to deal with this-worldliness;

          (c) Accepting of natural human qualities;

          (d) Possessing a spirit of tolerance for polarities;

          (e) Accepting cultural stratifications; and

          (f) Exhibiting a weakness for the spirit of direct criticism. [29]

          The Chinese, like the Japanese, are non-rational thinkers.  Their thinking exhibits:

(a) Non-logical tendencies;

(b) Weakness in ability to thinking in terms of logical consequences;

(c) Intuitional and emotional tendencies;

(d) Inability to form complex representations;

(e) Fondness for simply symbolic representations; and

(f) Weakness in knowledge of objective processes.[30]

 

Chinese and Japanese are also holistic thinkers

(1) Indifference to logic has apparently characterized Japanese thinking. Life is an organic whole, to be accepted and lived as it is; it is not to be cut by logic into analytically neat pieces for to do so is artificial and removed from the nature state of things.  Life is indeterminate, immensely varied, and subtle.[31] More importantly, the Chinese are not emotionally drawn to solving problems rationally and systematically. As Joseph Levenson observed in comparing the Chinese and western (scientific) thought process:

(Bacon) ...  went beyond simply ascribing ultimate reality to the world of phenomena ...He meant not merely to define the real world but to encroach upon it.  It was not enough for him to banish abstractions, which can only be contemplated, in favor of tangibles, which can be observed, for observation was not enough.  One had to observe with a method and purpose.  Bacon's method was induction from experimentally verified "irreducible and stubborn facts," his purpose the eliciting of general rules for organization of facts into science ... The Qing empiricists ... might pride themselves ... on looking around them and "testing books with facts," they rarely asked questions systematically which might make them see the essential relevance of some orders of facts to others, they never aspired, as Bacon did, 'to establish forever a true and legitimate union between the experimental and rational faculty."[32]

           (2) In the end, the western thinkers seek a structured legal order imposed while the Chinese accept natural ordering emulating from within.[33] The Chinese socialization process effectively inculcate in them psychological characteristics to function in a society circumscribed by internalized moral norms of correct conduct (li) as structured by proper relationships. [34]

          (3) The Chinese have no personal identification with the law.  There is no personal resonance, cognitive understanding, emotive appreciation or  moral identification with the rule of law at the grass root. Conceptually, law means punishment. [35]   Emotionally, law is associated with shame.  Morally, law is equated with evil.[36]  Consequently, the Chinese people do not rely upon the law as an effective mean of social control or preferred way to resolve disputes.[37] 

           (4) The Chinese have had bad experience with the law.  China's first experience with law under Qin dynasty (221 BC - 206 BC) was a disastrous one.  The First Emperor (Shihuandi) ruled the country ruthlessly with an iron fist by means of harsh and uncompromising legal rules.  Since then, successive generations of Chinese people have experienced law as imposed from above and beyond their reach.[38]   In imperial China law was remote, impersonal, and for the most part irrelevant. For example, during the Song dynasty (960-1279 AD), the authority kept the law from the people.  The Song rulers felt that the law belongs exclusively to the emperor.  The people's duty was simply to obey the doctrines of Confucianism and refrain from violating the sacred laws of the supreme emperor.[39]

          In imperial China, the law, in the form of Emperor's decrees was never meant to and did not function as a replacement for the universal moral code, entrenched local tradition and custom and intricate web of family and social relations, in policing the people, ordering society, and resolving disputes. [40] In modern China, law under communist rule is unreliable for much of the time,[41]  inconsequential for most of the people,[42] and inadequate to address many of the people's problems.[43] In the early days of the republic Mao effectively used individual voluntarism and mass mobilization to move the country ahead.  More pertinently, mass struggle and self-criticism, not legal norms and judicial process was used in ordering society.[44] Contradictions with the enemy were resolved by force.  Contradictions within the people were settled through education, persuasion, and mediation.[45]  In the later years (1966-1976), the legal institution was completely destroyed during the “cultural revolution" and "gang of four" era.  Politics was in control and revolutionary fervor prevailed.[46] The brief attempt to set up a viable legal system from 1953-1956 failed to materialize in the face of divisive political differences and contentious ideological struggles at the highest echelons of the Party; which ended, ironically, with the unconstitutional and unceremonious removal of Liu Shaoqi as heir apparent to Mao years later.[47] 

          In all, during Mao's rein (1949-1976), the people were expected to follow the Party policy,[48] conform to collective will,[49] and abide by individual discipline [50]in constructing a new socialist state.[51] More recently, Deng's effort to promote "rule of law" was repeated tested and found wanting.  In between 1984 - 1987 the Party and state sponsored a series of anti-crime Champaign (yanda) at the behest of Deng.  There was very little concern with legality in the zealous pursuit of social order. [52]  In 1989 the Party put down the June 4 student uprising with military force. Political dissidents and counter-revolutionaries were routinely detained, arrested, and tried without the process of law.[53] There were minimal attentions paid to the constitutional rights in seeking political stability.[54]  In the 1990s the police powers and law is exploited to serve individual, organizational, and local economic interests. The Chinese, then and now, experienced and understood law as a means of coercion in the hand of govern.  Law is to be avoided, not embraced. 

          (5) China has no national ethos or political ideology upholding the rule of law.  Traditionally, Confucius teachings slight the role of state and law, and opted for the family and "li" as the final arbiter of individual behavior and social control. [55]  More recently, the Marxist ideology is strongly responsible for the withering away of the state and disappearance of law in the utopian communist state.[56] Mao's thinking endorses a limited and much circumscribed role for the state.[57] However, he was quick to reject the legal system as dysfunctional and the criminal justice process as bureaucratic.[58] 

          Deng never questions the role of the state and the utilities of law. [59] He wants above all else to "ensure that there are laws to go by, that they are observed and strictly enforced, and that violators are brought to book."[60]  However, under his stewardship law was to be used always as a mean, never as an end, to the serve the country's political, social and economic needs.[61]

          (6) China has no individual or fundamental human right tradition. Traditional Chinese feudal (fengjian) society was characterized by a natural economy (ziran jingji), a patriarchal system (zongzu shehui), and an autocratic rule (zhuanzhi zhengzhi).  The ideas of individual dignity (geren renge), freedom  (ziyou), and rights (quanli), i.e. basic human rights (renquan) did not exist.  According to "weihu quanti quanli de fazhi lilun" (legal theory of maintaining group rights) China labored under different social history, economic conditions, and political tradition and as a result her conception of human rights is necessary different from that of the west:  Western capitalist societies experienced rapid industrialization and commercialization in the 18th century. The change in economic system resulted in a change in the political structure requiring the breaking down of traditional authorities: from imperial, to feudal, to religious orders. The ideas of human dignity, individual rights, social contract and republic form of government came into prominence.  China faced a much complex historical, social and political reality.  There was no rapid industrialization and commercialization which provided the impetus for human rights development. Rather there was a long enduring concern for maintaining the imperial order and feudal tradition, while the nation struggled for survival against internal strives, external threats, and natural disasters. The historical legacy of imperialism and feudalism stifles human rights development. The on going concern for national survival led to the promotion of collective and group welfare over individual rights. Thus, traditional Chinese philosophy emphasizes loyalty to the emperor, respect for the family elders, and "datung" or sacrificing the individual for the group.

          In the P.R.C. the concepts of right and duty are reciprocal, not independent. They are contingent and not absolute. Article 33 (3) of the P.R.C.  Constitution provides: "All citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and the law." [62]   In explaining the draft constitution, Peng Zheng, the Deputy Chairman of the Constitutional Commission, observed:

“There has never been absolute, unrestricted, freedom and rights in the world.  The country protects citizen's legitimate freedom and right, but it does not allow any organization or individual to violate rights of others, and also would not permit the use of such right and freedom to engage in counter-revolutionary and other activities harmful to the social order.”[63]

          In practice this means that when the citizen exercises his right he may not "infringe upon the interests of the state, of society or the collective, or upon the lawful freedoms and rights of other citizens.", as stated in Article 51, in the P.R.C. Constitution (1982).

          When such a constitutional principle is applied in the daily course of criminal justice work in China it takes on a pragmatic appeal and intuitive logic.  Theoretically, why should the law protect the right of a defendant's at the expense of society's interests?  Practically, why should procedure rights stand in the way of investigation, arrest, and prosecution of criminals?  Such a "reciprocal right" principle also reflects the Chinese cultural tradition and converge with public sentiments, i.e. justice require that bad criminals" be treated differently than "good people.” In sum, China does not have a "fundamental right" concept, akin to the west. Individuals do not enjoy "rights" separate and distinct from the group.  There is no concept of "natural", "inalienable" or "absolute" rights.  An individual is not allowed to stand in the way of society's interests and collective welfare.  In the traditional Chinese society, as with the contemporary socialist state, the individual labors for the welfare of others (family, relative, friends, country) and suffers
under the interests of the collective whole.[64]

 

Part III

Lack of Constitutionalism

           Constitutionalism is new to China.  Until very recently, the idea of the constitution as a limit to state powers is unheard of in China.[65]  The nature and functions of a socialist constitution is a much debated subject.  Jerome Alan Cohen, a prominent Chinese legal scholar, has asked openly: 

“What functions does a constitution serve in the Chinese political-legal system? Is it a sham not worth the paper on which it is printed?  Is it an artifice of propaganda designed to impress and mislead foreigners? [66] Another more skeptical western scholar even dismissed the communist constitution as totally "useless" in protecting citizens' rights and checking government abuses:

What could be the function of a constitution in a communist state? It cannot restrict the actions of the dictatorship.  Nor can it impose goals upon the party. It can set up the major institutions, but the dictators are free to change function as they see fit, and to make these institutions function in any way they desire.  The uselessness of existent communist constitutions is most glaringly revealed in the norms they proposed on the fundamental rights of citizens, many of which are dutifully though ambiguously recited, but all of which are systematically disregarded in the day-to-day actions of the party, the state, the judiciary, and the police, not just during periods of emergency but permanently.[67] There is other more thoughtful evaluation of the functions of a socialist constitution. For example, one Chinese political science scholar observed that it is inappropriate to judge socialist constitution with reference to western standards.[68] Thus, it is bias to view and judge the socialist constitution as a mirror image of the west, i.e. as an enduring document of state powers and limitations. A socialist constitution should be viewed historically and evolutionary.[69] In the early stage the "yeast constitution" is concerned less with restricting state powers than with liberating human spirit.  Next came the "mirror constitution" which reports upon the achievements of past progress of revolution and further spells out a program for future development.  Lastly, "the chessboard" constitution serves as a framework of state building.  Significant to note here is that none of the socialist constitution typologies here mentioned functions as a limitation to state powers. [70] Western jurists have come to associate the constitution with a limited government by law.  The constitution is a social contract adopted by the people to limit the powers of government and protect the rights of the people.  Before 1982, the PRC leadership shared no such understanding, nor did the people harbor such expectations. [71] Such mentality and attitude remains after 1982.

          First, the communist ideology considers the evils of government - exploitation, oppression and abuse of powers - structural in nature and material in origin. Constitutional government is a historical-material product and a capitalist invention.[72]  With the capitulation of the capitalist state, and arrival of the communist utopia, the state with all its attending evils will fade away. There will be no need for coercive laws, much less a restrictive constitution.[73] Liu Shaoqi vividly described the nature of such a futuristic-utopian society:

In that world (Communist) there will be no exploiters and oppressors, no landlords and capitalists, no imperialists and fascists, nor will there be any oppressed and exploited people, or any darkness, ignorance and backwardness resulting from the system of exploitation  By then all humanity will consist of unselfish, intelligent, highly cultured and skilled communist workers; mutual assistance and affection will prevail among men and  there will be no such irrationalities as mutual suspicion and deception, mutual slaughter and war.[74]
         Second, with the advent of the socialist state, on the way to communist regime, there is no distinction between the govern and the governed.  They are all part of the proletarian, or the people. Party cadres and state officials administer the country on behalf of and for the interest of the people.[75]  There is no adversarial relationship only common bond. There is no conflict on interests only shared dreams.[76] The people will be in control and command. The “proletarian dictatorship” would have prevailed.
          Third, Mao would find it odd to talk about restraining the powers of government, especially in criminal justice matters, when the people are the master of their own affairs (dang jia zuozhu).[77]  In theory, people's justice means simply that the people can do no wrong; the act and judgment of the people is ipso facto just and proper.  In practice, it is difficult to conceive of "the mass" acting abusively or behaving unjustly.  They are not likely to behave irresponsibly in harming their own country, much less act adversely against their own best interests.[78] Mao's classic statement in his "Report on an Investigation of the Peasant Movement in Hunan" bears repeating:

 

The peasants are clear sighted.  Who is bad and who is not quite vicious, who deserves severe punishment and who deserves to be let off lightly -- the peasants keep clear accounts and very seldom has the punishment exceeded the crime.[79] Mao did suggest that some form of "check and balance" was necessary to forestall people making hasty and wrong decisions in the heat of the passion:

“To prevent "left" deviations in the heat of the movement to suppress counter-revolutionaries, it had been decided that ... powers to sanction arrests shall without exception revert to the prefectural authorities and the power to sanction executions shall without exception revert to the provincial authorities...[80] However, such supervision was intended to be administrative in nature and did not rise to the level of constitutional constrains.  More tellingly, Mao was less concerned with institutionalized official abuses, which is not possible in a communist state, than that of "heat of the passion" mistakes, especially by the people, which is quite likely given the fallibility of humans.

          Fourth, Communist doctrine advocates democratic centralism as the fundamental rule in organizing government.  It rejects categorically the concept of separation of powers - legislative, executive, and judicial -as a way to counter balance the concentration of powers in the state authority. It considers such arrangement counter-productive and existed as a plot of the capitalists to gain conspirator control over the people.[81]

          Fifth, Mao would readily concede that there are many instances when party cadres, state agents, and government officials might make mistakes.  These mistakes (contradictions) are of an accidental nature and incidental kind, not systematic and structural in origin.  More particularly, they are non-antagonistic in nature:

“Within the ranks of the people, the contradictions among the working people are non-antagonistic ....Our People's Government is one that genuinely represents the people's interests, it is a government that serves the people.  Nevertheless, there are still certain contradictions between this government and the people.  These contradictions ... arising from the bureaucratic style of work of some of  the state personnel in their relations with the masses.” [82]

These non-antagonistic contradictions amongst the people could best be corrected by democratic means, i.e. persuasion not compulsion and education not punishment.  Party discipline and administrative sanction should be used sparingly to rehabilitate, and not as means of deterrence or punishment.[83]

          Sixth, Marx observed that human nature and consciousness change with the material conditions and social relationship of a society.[84] Mao believed that individual personality is shaped and conditioned by one's class status.[85] Both subscribed to the idea that the "central function of government will be treated as the transformation of the social natures of the citizen." This entailed destroying capitalistic institutions, on the way to fostering socialist morality.[86]  This understanding of the role and functions of government preclude the Communist leaders from looking towards the constitution as a means to address government abuse.  Coercive law does not change human nature, education does.[87] The importance of education to control social deviance in China is best summed up by Professor Munro:

As a final word, one should note that (state) fosterage is important in China today as in the past in giving to what is often the first and most significant step by officials in facing any urgent political or social problem ... This is consistent with the belief that deviant acts are traceable to improper thoughts.  Such a response can be described as the education panacea...[88]

          The disappearance of an exploitative class of enemy, the mutuality of interests between the governed and govern, the integration of the people with the officials, the commitment to democratic centralism as a political doctrine, the non-antagonistic nature of official misconduct, and the believe in the malleability of human nature, all argue against the adoption of a limiting constitution on state powers. The above ideological sentiments and political analysis is succinctly captured by a Chinese scholar:

Based on class analysis, a socialist constitution deals with civil rights and human rights in a way naturally different from the capitalist constitution.  The later focuses on freedom and the right to political participation; it is formulated in light of the government's possible abuse of power. The former focuses on freedom and the right to welfare; all the rights, including freedom and political participation, are formulated on the assumption that they have been taken away by the capitalist exploiters and the state sides with the laboring masses.  Therefore, it is impossible for the state to encroach upon the people's rights called the rights of the laboring masses or the proletariat.[89]

 

Conclusion

This paper, in reflecting upon the reasons for the lack of control of police powers in the PRC, starts with the premise that the law is quintessentially a cultural product. As such, the operation of the law is informed by past history and driven by prevailing ideology. The lack of a legal culture and constitutional spirit materially affects the control of police in China.  For example, the lack of a constitutional spirit of limited government materially affects how police misconduct is perceived and controlled.  Police misconduct are viewed as personal wrongdoing, not as structural (e.g. economic) or organizational (e.g. goal displacement) malfunctioning.   The solution to police abuses of power is more education, supervision, and discipline; not legal punishment or constitutional check and balance.

China has a long history of rule by man and institutionalized despotism.  More recently, it has practiced legal nihilism and jurisprudential pragmatism.  The lack of a historical national ethos in the rule of law and constitutional government, as reinforced by a contemporary political ideology calling for legal nihilism provides little constrain on police powers.  The emergency of political pragmatism further offers the police a (politically correct) justification to depart from doing what is right by the law to pursue what is effective and expedient in each situation. The solution to the PRC’s police lawlessness problem is thus not only in having more law on the book or assuring more stringent law enforcement by officials, but the development of a more rooted legal culture, starting with a supportive political ideology which makes the fidelity to law a categorical imperative and transcendental value, more so than a convenient instrument and expedient measure.


 

End  Notes

[1] Associate Professor, Department of Public Affairs, University of Wisconsin (Oshkosh), Oshkosh, WI 54901-8655 USA.  E-mail: wong@uwosh.edu

[2] For a discussion of  the PRC police abuse of  power in fighting crime, see Note, "Concepts of Law in the Chinese Anti-Crime Campaigns," 98 Harv, L. Rev. 1890 (1985).  For a discussion of the misused of police powers in the suppression of political dissents, see James D. Seymore,  Mark Finday, "Show Trials in China: After Tiananmen Square," 16 Journal of Law and Society 352-59  (1989).   For a discussion of human rights violation generally, see  "Human Rights and The Law in the PRC" in Victor C. Falkenheim (ed.) Chinese Politics from Mao to Deng (N.Y.: Paragon House, 1989), pp. 271-299.  For a typical PRC’s view on police abuse of powers.  See Supreme People's Court Guanyu jiaqiang gongjianfa bumen famei shouru guanli he baozheng banan jingfei de tongzhi ("Circular regarding strengthening the management of penalties and confiscation and guaranteeing of case handing expenditure of the police, procuratorate, court departments.") (9 October, 1990). See  Zhonghua renmin gongheguo falu guifanxing jieshi jicheng (Zengbu ben)(A Compilation of P.R.C. laws and restrictive explanations) (Supplemental copy) (Changchun: Jilin renmin chubanshe, 7/1991), pp. 8-9, 12. For PRC’s first national effort to fight police violations of citizens’ rights, see  Quangou jiancha jiguan diyici "qinquan" duzhi anjian zhencha gongzuo huiyi (First national Procuracy meeting on "rights violation" and dereliction of duty) held in Beijing sponsored by the Supreme People's Procuracy from 3 - 9 April, 1990. in Law Yearbook of China (1991) p. 802. (1.  From 1979-1989 there were 75117 "rights violation" and dereliction of duty cases.  2.  There is still a gross lack of capacity and competency, and in some cases interest and motivation to deal with rights violation cases.)  See also Quanguo jiancha jiguan dierci "qinquan" duzhi anjian zhencha gongzuo huiyi" (Second national procuracy meeting on "rights violation" and dereliction of duty) held in Beijing sponsored by the Supreme People's Procuracy from 18 - 23 May, 1990.  ( In 1991 only 16,044 of the reported 45,033 cases were dealt with.  There is a need to educate the judicial officers about the adverse effects of "violation of rights" and dereliction of duty cases on social stability and economic development.  The leadership at different levels of government should strengthen supervision in five kinds of cases: xingxi bigong (inquisition by torture); feifa jujin (illegal imprisonment), xunshiwubi (engage in fraudulent activities for personal advantage), wanlongzhishou (abusive use of official power), zhongdai zeyinshigu (important cases, significant liability). See Law Yearbook of China (1992) p. 802. For an example of how local government sought to fight police abuse, see  for example, the Guangdong province public security department issued "Guanyu yanjin dama qunzhong, xingxun bigong de guiding" ("Regulations on strictly forbidding the police from beating and yelling at the people, and conducting coerced confession.")  The regulations require the police to deal with the public in a lawful and civilized manner.  They should not violate people's rights in exercising their police duty and authority.  They should use investigation and evidence instead of coercion and torture in getting confession.

[3] Since the 1980s, there are repeated calls for the better supervision and more effective control of police powers.  See Yang Yichen, Chief Procuratorate: "Zui gao renmin jianchayuan gongzuo baogao," (The Supreme People's Procuratorate work report) (1 April, 1988 the 7th N.P.C., first meeting).  Zhongguo Jiancha Nianjian (1989) (Procuratorial Yearbook of China (1990), pp. 21-28.  Reflecting upon the last 5 years (1979 to 1988) of work by the nation's crime fighters, the report observes: "In the last five years, we have spent relatively more time and effort in fighting crimes... but legal supervision is not sufficient.  The main reasons are: (1) There are not sufficient appreciation about the importance and meaning of legal supervision.  (2) Our leaders cannot keep pace with the development of the situation.  They are not able to response to new situations and provide for appropriate solutions to problems. (3) Legal procedures and methods are not adequate.  The effect of legal supervision is not strong.  (4) There are not enough party cadres.  Their quality is not high.  (5) There is a lack of equipment and resources." Ibid p. 24.

[4] In the United States, the National Commission on Law observance and Enforcement: Report on Lawlessness in Law Enforcement (Washington, D.C.: United States Government Printing Office, 1931) (commonly referred to as the Wickersham Report) found the  police to be in “flagrant violation of the law” as a result of mission, recruitment, training, and standards factors.   In like vein, the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (Washington, D.C.: United States Government Printing Office, 1967) pointed to institutionalized police violence and abuse of citizens rights, which were attributable to larger historical, social, and cultural forces at work.  In the 1970s, the New York City Knapp Commission (1969-1972) - Commission to Investigate Allegations of Police Corruption and the City’s Anticorruption Procedures (New York City; Witman Knapp, Chairman, Commission Report (1972) uncovered systematic corruption as a  way of life inside the NYPD.  Yet, in spite of  repeated revelations and promised reforms, police corruption defies control.  See Robert J. McCormack, “Confronting Police Corruption: Organizational Initiatives for Internal Control,” in Managing Police Corruption: International Perspectives, eds. Richard H. Ward and Robert McCormack (Chicago: Office of International Criminal Justice, University of Illinois at Chicago, 1987), pp. 151-165. High profile police brutality cases - the likes of Rodney (a senseless beating of a black motorist) - further shows that police abuse of power is not about to de controlled by administration or with law. See Carl E. Pope and Lee E. Ross, “Race, Crime, and Justice: The Aftermath of Rodney King,” The Criminologist 17 (1992): 1-10.  In the 1960s the Supreme Court tried to invoke the Constitution (e.g. Miranda v. Arizona, 384 U.S. 436 (1966), Mapp vs. Ohio, 367 U.S. 643 (1961) to police the police.  This has met with limited success.  See William C. Heffernan and Richard W. Lovely, “Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law,” University of Michigan Journal of Law Reform 24(2) (1991):311-369 (The exclusionary rule is a week deterrence of police misconduct.)  See also Thomas E. Reed and William D. Beckerman, “The Value of Equality in the Rule of Law,” International Journal of Criminology and Penology 6(4) (1978):363-371.  (Police conduct determined by their attitudes towards “the rule of law” and rights and procedures.).  Studies have since found that police sub-culture, working personality, organizational structure has more to do with police conduct than formal rules and regulations.  William A. Westley, Violence and the Police: A Sociological Study of Law, Custom, and Morality (Cambridge, Mass.: MIT Press, p. 11.  (Police working conditions and interaction with hostile public combine to produce a set of norms and values governing police behavior, i.e. police sub-culture.), Jonathan Rubenstein, City Police (N.Y.:Farrar, Straus, and Giroux), pp. 127-128. (Rookies were socialized to the police roles and values by his peers while on the job. This has more impact on him than his formal training or official rules.)  Jerome H. Skolnick, Justice without trial (New York: Wiley, 1966) (Police develop unique ways of looking at and responding to work environment as a result of his profession. This is called working personality.)

[5] See also Quanguo jiancha jiguan dierci "qinquan" duzhi anjian zhencha gongzuo huiyi" (Second national procuracy meeting on "rights violation" and dereliction of duty) held in Beijing sponsored by the Supreme People's Procuracy from 18 - 23 May, 1990. 

[6] See Kam C. Wong, “Understanding PRC Criminal Justice Process: Anatomy of the “Big Spender” Case” (April 15, 2001) (Unpublished manuscript on file with the author.) (In another reported case – “Big Boss” - the average detention for all 35 criminals was 2 months 9 days. This ranged from the maximum of 5 months 25 days to 2 days.)

[7] Kam C. Wong, “Sheltering for Examination: Law, Policy, and Practice” in Occasional Papers/Reprints Series in Contemporary Asian Studies, University of Maryland, School of Law, 9/1997.

[8] Kam C. Wong, “Police Powers and Control in the People's Republic of China: A case study of shouron shencha” in Columbia Journal of Asian Law Fall, 1996, Vol. 10, No. 3, 1996, pp. 367-390

[9] Lawrence M. Friedman, The Legal System: A Social Science Perspective (N.Y.: Russell Sage Foundation, 1975), p. 15.

[10] For an intellectual history of rule of law as a "western" ideal, see Harold Bermen Law and Revolution (Cambridge, MA: Harvard University Press, 1982). (Rule of law, as a "western" practice, came into existence from the Papal revolution of 1200.)

[11] See generally H.L.A. Hart, The Concept of Law (Oxford University Press, 1961).

[12] See J. Bentham, A Fragment on Government, in 1 Work 221, 230 (Bowring ed. 1895) (preface, 16th para).

[13] See generally, John Rawls, A Theory of Justice (Cambridge, Mass: The Belknap Press of Harvard University Press, 1971).

[14] I use the "spirit" of the people as Sir Maine used it in Ancient Law (London: Aldine Press, 1907)

[15]See James D. Seymore, "Human Rights and The Law in the PRC" in Victor C. Falkenheim (ed.) Chinese Politics from Mao to Deng (The Chinese people have no trust in the legal institutions.), p. 272.

[16] For a trenchant, albeit critical review, of the PRC legal system by one of the most learned and reflective patriot-dissident, see Chen Zhiming, Chen Zhiming fanshi shinian gaige (Chen Zhiming reflecting upon ten years of reform) (Dangdai yuekan chubanshe, 1992) (The PRC legal system is not satisfactory.  There is no fundamental legal rights.  The people and the cadres have no deep appreciation for the rule of law.  There is no effect supervision of law enforcement.), pp 67-70.

[17] By intellectual history (sixiang lishi) I refer to the historical development of ideas. Ideas as "conscious response to situation" encompass the trilogy of thought (sixiang), idea (guannian), and ideology (yishixingtai) which generate in the individual an emotional attitude, pathos, and feelings. By studying intellectual history we understanding why and how people react to social problems, e.g. disputes and crimes, the way they do. See generally Benjamin Schwartz, "Some preliminary observations about Chinese intellectual history" in The Committee on Chinese Thought,  Studies in Chinese thought (Taipei: Lianjing chubanshe, 1970), pp. 1-20.

[18] American  anthropologists A.L. Kroeber, Clyde Kluckhohn, and Wayne Untereiner identified no less than 164 definitions of culture between 1871 to 1951, see Culture, A Critical Review of Concepts and Definitions. Culture is the sum total of human experience and civilization, including, language, knowledge, technology, art, belief, custom, morals, religion, and habits, as manifested in a people's ways of seeing, feeling and doing things. See Yan Haiguang, The prospect of Chinese Culture (Wenyi chubanshe, 1976), Vol. 1, Chapter 2 " What is culture".

[19] This does not mean that Chinese has no legal institution and tradition.  Quiet to the contrary, China has a long legal history and a very well developed legal system. See generally Cohen, Edwards, and Chen (ed.) Essays on China's Legal Tradition (N.J.: Princeton University Press, 1980). For an excellent account of Chinese legal  institutions and development, see Li Jiafu Zhongguo fazhishi (A history of Chinese legal system) (Taiwan: Lianjing chubanshe, 1989). (Chinese legal system is supplemental to, and based on, li.). For a comprehensive treatment of Chinese jurisprudential thinking, old and new, see Gao Shaoxian, Zhongguo lidai faxue mingbian zhushi  (Annotated readings of Chinese famous historical jurisprudential writings) (Zhongguo renmin gongan daxue chubanshe, 1993).  

[20] Chinese are socialized differently than westerners. See David Y.F. Ho, "Chinese Patterns of Socialization: A  Critical Review" in Michael H. Bond (ed.) The Psychology of the Chinese People (H.K.: Oxford University Press, 1986), pp. 1-37, 35-6.  They otherwise exhibit collective orientation, other-orientation, relationship orientation, authoritarian orientation, submissive disposition, inhibited disposition, and effeminate disposition. See Kuo-shuo Yang, "Chinese personality and its change," ibIbid pp. 106-170, 154-161. See Michael H. Bond and Kwang-Kuo Hwang "The Social Psychology of Chinese People" Ibid p. 215.

[21] See Victor Li, Law without lawyers (Westview, 1978), p. 13. Professor Griffiths insightfully observed that "legalness" is a matter of degree, representing a continuum of progressive specialization in social control functions from no division of social control (NDSC) functions (as in primitive society) to highly specialized legal institutions (as in industrialized society).  See John Griffiths, "The Division of Labor in Social Control" in Donald Black, Towards a General Theory  of Social Control Vol. 1 (Academic Press, 1984), pp. 37-70. Thus conceived, China falls within the NDSC zone of social control, i.e. social control functions are not differentiated but integrated into every aspect of social life, starting with the family.

[22] See Tavis Hirschi, Causes of Delinquency (Berkeley, CA: University of California Press, 1969).

[23] According to the functionalist school of criminology, a  functional society which is well integrated is a pre-condition to social stability.  Larry J. Siegel, Criminology (West, 1986, p. 13).  Thus social normlessness, i.e. anomie, results in deviance.  Robert Merton, Social theory and Social Structure (N.Y.: Freee Press, 1968).  See also Leo Srole, “Social Integration and Certain Corollaries,” American Sociological Review 21 (1956): 709-16.  Political and social conflicts also cause crime and deviance.  See Austin Turk, Criminality and Legal Order (Chicago: Rand McNally, 1969), p. 58.

[24] For a discussion of how the changes of mode of production through time cause cleavages in society, resulting in crimes and deviance.  See Karl  Marx and Frederick Engles, Capital: A Critique of Political Economy, Trans. E. Aveling (Chicago: Charles Kern, 1906).

[25] See generally Clifford Shaw and Henry D, McKay, Juvenile Delinquency (Chicago: University of Chicago Press, 1968).

[26]See generally Fairbank, The United States and China (4th ed. 1979).

[27]A person's thinking process is embedded in ones cognitive structure; acquired at birth and later developed through socialization.  See the works of cognitive structuralist Jean Piaget The language and thought of the child (N.Y.: Harcourt, Brace, 1926) and Noam Chomsky, Syntactic structures (The Hague: Mouton, 1957) for the propositions that (1) the realm of thought or cognitive structure mediates between perceived realities and contemplated actions; (2) ones cognitive structure, pre-programmed in part, develops in interaction with the environment; (3) the cognitive structure is separate from and exists prior to language formation.  There is much debate over the contribution of language to our cognitive capacity and thinking pattern; but there is little doubt that language form an important link between environment, thought, and action.  See Benjamin Whorf, Language thought and reality (1956) (Whorf believes in language determinism, i.e. language (speech categories) determines mechanically the way we think and act; conclusively and inevitably.)  See Alfred Bloom, The Linguistic Shaping of Thought: A Study in the Impact of Language on Thinking in China and the West (N.J.: Lawrence Erlbau Associates, 1981), "Introduction", pp. 1-13.

[28] Bloom in a study of the distinctive cognitive capacity of English and Chinese people notes that the Chinese tend not to think counterfactually, generically, and entificationally. Ibid, Chapter 2 "The Distinctive Cognitive Legacies of English and Chinese" Ibid pp. 13-60.

[29] Ibid

[30] See Nakamura, "Basic Features of the Legal, Political and Economic Thought of Japan," in The Japanese Mind: Essentials of Japanese Philosophy and Culture (Moore, ed., 1967), pp. 143-144. Cited in Chin Kim and Craig M. Lawson, "The Law of The Subtle Mind: The Traditional Japanese Conception of Law," in 28 International Comparative Law Quarterly 491-513 (1980)

[31] Ibid

[32] Levenson, Confucian China and its modern fate (Berkeley: University of California Press, 1965).

[33]. MacKnight, Law and Order in Sung (Cambridge University Press, 1992)(The main difference between the westerners and Chinese is in their conception of order; whereas the westerners believe in a structured order imposed exterior to the flux, the Chinese conceive of order as a natural state harmoniously deriving from within.)

[34] See David Y.F. Ho, "Chinese Patterns of Socialization: A  Critical Review" in Michael H. Bond (ed.) The Psychology of the Chinese People (H.K.: Oxford University Press, 1986), pp. 1-37, 35-6.  They otherwise exhibit collective orientation, other-orientation, relationship orientation, authoritarian orientation, submissive disposition, inhibited disposition, and effeminate disposition. See Kuo-shuo Yang, "Chinese personality and its change," ibIbid pp. 106-170, 154-161. See Michael H. Bond and Kwang-Kuo Hwang "The Social Psychology of Chinese People" Ibid p. 215.

[35]For a discussion of meaning of the word law in the West and China, see Liang Zhiping, "Explicating "Law": A Comparative Perspective of Chinese and Western Legal Culture" in 3  Journal of Chinese Law  55-94, 55-63 (1989). (The Chinese do not have a language of law.  Law is punishment.)

[36]See generally Chapter 1 to William Jones The Great Qing Code (Oxford University Press, 1994). (In China everyone who was involved with the law was worse off. Law was to be avoided at all costs.  Good people have no business with the law.)

[37]Li Law Without Lawyers (1977) (The Chinese prefer informal, customary control over formal, legal punishment.)

[38] See generally The Great Qing Code (In imperial China, law was used less to govern the people than as a means to govern the state operatives.) Op. cit. See also generally T.A. Metzger The Internal Organization of Ch'ing Bureaucracy. Legal, Normative, and Communicative Aspects (Cambridge, Mass: Harvard University Press, 1971).

[39] See Ichisada Miyazaki "The Administration of Justice During the Sung Dynasty," in Essays on China's Legal Tradition (N.J.: Princeton University Press, 1980), pp. 56-75, 58.  People experienced law via judicial proceedings which were entirely of a criminal nature, ibIbid pp. 59ff. For a parable which portraits the "powerless that an ordinary Chinese feels in dealing with the impersonal judicial bureaucracy," see Frederick Wakeman, Jr. "Mr. Wang vs. Mr. Ch'en: A High Ch'ing Parable" in Robert Dernberger et, al (eds.) The Chinese (University of Michigan) pp. 253-256.

[40] For a theoretical discussion of traditional Chinese social control techniques and principles, see Dutton Policing and Punishment in China (Cambridge University Press, 1991), p. 3. For an excellent sociological study of social/legal control in imperial China see Sprenkel, Legal Institutions in Manchu China (University of London, 1962), (Much of social life in Qing's China was governed by informal social control: local custom, family tradition, clan discipline, guild rules, and communal self-help.) Chapter 1.

[41] The P.R.C. Constitution was revised and amended no less than 5 times during the last 40 years (1949-1989), i.e. Common Prgramme (1949), P.R.C. Constitution (1954), (1975), (1978), and (1982). This has led Jerome Alan Cohen to ask openly:  "What functions does a constitution serve in the Chinese political-legal system? Is it a sham not worth the paper on which it is printed?  Is it an artifice of propaganda designed to impress and mislead foreigners?" See Jerome A. Cohen "China's Changing Constitution," in 76 China Quarter  794-842, 794 (1978).  A more critical western constitutional scholar has described the Chinese constitution as "useless". See  Stefan T. Possony, "The Maoist Constitution of 1975," in , Michael Lindsay (ed.) The New Constitution of Communist China: comparative analysis (ROC: Institute of International Relations, 1976).

[42] Another scholar observed that the problem is not with having no laws to follow, but rather people, especially officials, routinely disregard the law. See James D. Seymore, "Human Rights and The Law in the PRC" in Victor C. Falkenheim (ed.) Chinese Politics from Mao to Deng (N.Y.: Paragon House, 1989), pp. 271-299, 272.  This observation makes the Chinese people (instead of just the political leaders and administrative officials) responsible for lawlessness in China. In China, past as well as present, relationship (guanxi) is more important in facilitating transactions and anchoring expectations. Kam C. Wong, The State of The Watch and Clock Industry in Hong Kong: An industry report by the Federation of Hong Kong Watch Trades and Industries Ltd. (1994) (H.K.: FHKWTI, 1994) (Guanxi is functional and necessary to grease the highly centralized administrative bureaucracies and planned economy.)

[43]People resort to extra-legal means to solve their problems (e.g. slef- help) if law is not available or ineffective in addressing their concerns.  For a discussion of self-help as social control, see generally Black A theory of Social Control (N.Y.: Academic Press, 1994).  An analysis of 38 criminal cases collected and published by the Supreme People's Procuratorate for instructional purposes in 1992, 30 of them were properly considered as "self-help" cases. See Xingshifanzui Anlicongshu (Zhongguo jiancha chubanshe, 1992), pp.1-78.

[44]See James P. Brady, Justice and Politics in People's China (Academic press, 1982), especially Chapter 4: "Popular Revolution and the Creation of People's Justice" pp. 55-69.

[45] See Mao's defining work on crime and punishment: "On the Correct Handling of Contradictions Among the People'" in Selected Works of Mao Zedong, Vol. 5 (Beijing: Foreign Languages Press, 1977).

[46] The Gong-Jian-Fa (Police, Procuracy, and Courts) was completely demolished during this period.  The People's Daily published an editorial entitled "Praise of Lawlessness" calling for the complete destruction of the "bourgeois law." See "Legal Reform in Post-Mao China: A Tentative Assessment" in Chinese Politics from Mao to Deng, p.205. 

[47] For a discussion of the "conflicts between liberals and radicals intellectuals" during this time, see M. Goldman, China's Intellectuals (Harvard, 1981), Chapter 1, especially pp. 9-17. For an excellent account of the behind the scene power struggle between the "pragmatists" led by Liu Shaoqi and "radicals" led by Mao leading up to the cultural revolution, see Roderick MacFarquhar, The Origins of The Cultural Revolution (N.Y.: Columbia University Press, 1974), especially Chapter 9 "The Dispute over Liberalization", pp. 110-121.

[48] See Albert P. Blaustein, Fundamental Legal Documents of Communist China (N.J.: Fred B. Rothman & Co., 1962), p. xv. ("The omnipotence of Party policy as the prime basis of decision making is manifested in both theory and practice.")

[49] See Mao's pronouncement on mass line:  "In all the practical work of our Party, all correct leadership is necessarily 'from the masses, to the masses'.  This means: take the ideas of the masses (scattered and unsystematic ideas) and concentrate them (through study turn them into concentrated and systematic ideas), then go to the masses and propagate and explain these ideas until the masses embrace them as their own, hold fast to them and translate them into action, and test the correctness of these ideas in such action." See Mao Zhedong, "Some questions concerning methods of leadership." In Selected Works of Mao Zhedong (1967) (Beijing: Foreign Language Press), pp. 226-7.  See also "In all practical work of our Party, all correct leadership is necessarily 'from the masses, to the masses." Renmin Ribao  5 April, 1956, p. 1  For a discussion of the implications of the mass line on social life, see John Burns, Political Participation in Rural China (Berkeley, California: University of California Press, 1988), pp. 23-8. For the application of mass line to administration of justice work, see the observation by border area Justice Lei Jingtian:

Making justice administration work the mass's own work, the judicial organs the mass's organs, be at one with the mass, listen carefully to their suggestions, respect the fine habits of  the mass, fairly and responsibly resolve the mass's problems, organize mass trial without concern with formalities, and reduce litigations of the mass.

Lei Jingtian "Gaizao sifa gongzuo de yijian" (Suggestions on reforming judicial work) (18 December, 1943) cited in Yang Winghua, Fang Keqing, Shan-Gan-Ning bianqu fazhi shigao (Falu chubanshe, 1987), supra, p. 72. See also Justice and Politics in People's China, op. cit., especially Chapter 4: "Popular Revolution and the Creation of People's Justice" pp. 55-69. (The populist justice model emphasizes heavily on popular participation and mass mobilization with few legal or bureaucratic constraints.)

[50]See "How to Be a Good Communist" (July, 1939, delivered as a lecture at the Institute of Marxism-Leninism in Yan'an.)  in Selected Work of Liu Shaqi Vol. 1, (Beijing: Foreign Languages Press, 1984), pp.107-156.

[51] For a general discussion, see Shao-chuan Leng, "The Role of Law in the PRC as Reflecting Mao Tse-tung's Influence," 68 Journal of Criminal Law and Criminology 356-575 (1977)..

[52]See Note, "Concepts of Law in the Chinese Anti-Crime Campaigns," 98 Harv, L. Rev. 1890 (1985).

[53] See the personal account of one famous dissident, Wang Juntao, in his confrontation with the P.R.C. political authority.  Wang Juntao: the person,  the words, the "crime" (H.K.: Contemporary Monthly, 1992).

[54] See Mark Finday, "Show Trials in China: After Tiananmen Square," 16 Journal of Law and Society 352-59  (1989)

[55]For a concise but informative discussion of the concept of li, see B. Swartz, "On Attitudes Toward Law in China" in M Katz (ed.), Government Under Law and the Individual (Washington, D.C.: American Council of Learned Society), pp. 27 - 39.  For an excellent discussion of the role and functions of law in China, see Bodde and Morrris, Law in Imperial China (Cambridge, Mass: Harvard University Press, 1967), Chapter 1.

[56] See generally H. Collins, Marxism and Law (Oxford: Clarendon Press).

[57]Mao observed in "The People's Democratic Dictatorship" thus: "When classes disappear, all instruments of class struggle - parties and the state machinery - will lose their function, cease to be necessary; therefore gradually wither away and their historical mission, and human society will move to a higher state. "See Selected Works of Mao Tse-Tung Vol. IV (Beijing: Foreign Languages Press, 1977), pp. 411-423, 411.  However, Mao conceded the need to have a strong state authority to protect and execute the will of the people in the transitional period from socialism to communism. IbIbid, p. 418.

[58] See generally Li Zhongda Mao Zedong falu sixiang he shijian (Mao's thought and practice on law) (Shanxi renmin jiaoyu chubanshe, 1989), especially Chapter one "The historical place of Mao's legal thought and practices" and Chapter two "Method of research into Mao Zhedong's legal thought and practice", pp. 6-18, 19-38. (Mao has well developed ideas on law and contributed to its practice.  However, he made "leftist" mistakes in his later years (1957 on) in allow Party policy and personal politics to replace law.)  See Stuart Schram, The Thought of Mao Tse-tung (Cmabridge University press, 1989), p. 143.

[59] Deng authors a brand-new chapter in "socialist legality" which has until now been rarely explored.  While he is not successful in articulating a jurisprudential base for his "socialist legality" or mapping out the administrative details of the so called "legal system with Chinese characteristic" he is nevertheless instrumental in debunking the myth associated with communist "legal nihilism."  Law is necessary to rebuild China and is here to stay.  By one bold brush, Deng rescues China from lawlessness of the past, but he also fails to adequately set forth a well defined course for her to follow. The only guide he can offer is learn by doing.  The failure to offer a comprehensive and coherent theory of "socialist legality" invites divergent interpretation and inconsistent application of the "rule of law."

[60] Deng does not separately address the role and functions of law.  The most explicit statement on the subject (youfa ke yi, youfa bi yi, zhifa bi yan, weifa bi jiu) came in his keynote address at the closing session of the Central Working Conference which made preparations for the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party  entitled "Emancipate the mind, seek truth from facts and unite as one in looking to the future." In Selected works of Deng Xiaoping (1975-1982) (Beijing: Foreign Language Press, 1983), pp. 151-165, 158. The speech divorced Chinese governance from "rule of man" renzhi on her course to "rule by law"(fazhi).  ("Democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leaders changes, or whenever the leaders change their views or shift their focus of attention. The trouble now is that our legal system is incomplete, with many laws yet to be enacted.  Very often, what leaders say is taken as the law and anyone who disagrees is called a law breaker." ) Ibid 158.

[61] See Deng's speech at a meeting of cadres called by the Central Committee of the Communist Party of China entitled: "The Present Situation and the Tasks Before Us" (16 January, 1980), ibid. pp. 224-258, 238-239. ("We must continue to strike resolutely at various kinds of criminals, so as to ensure and consolidate a sound, secure public order.  We must learn to wield the weapon of law effectively." (Emphasis mine).

[62] See also Zhonghuarenmin gongheguo baifa jieshi anli quanshu (Jilin Chubanshe, 3/93), explanatory notes to Article 33 of PRC Constitution (1982) (In our country there is no enjoyment of rights without performing corresponding duties) Ibid pp. 23-25.

[63] See Peng Zhen, "Guanyu "Zhonghua renmin gongheguo xianfa xiugai caian" de shuoming" (At the Fifth N.P.C. Standing Committee, 23rd session, 22 April, 1982), p. 7.

[64] For the differences in the understanding of individual right between the west and China, see Qiao Congqi, "Zhongguo zichan jieji de renquan yu fazhi lilun" ("A theory of Chinese capitalist class human rights and legal system") in Zhongwai faxue 3/1992 50-57. Reprinted in Faxue 7/1992, pp. 169-176.

[65] See Chen Yunsheng, Minzhu xianzheng xinchao (New tide in democratic constitutional politics) (Beijing: Renmin chubanshe, 1988), esp. Chapter 7: "A few issues of theory and practice on strengthening our country's constitutional supervision." pp. 200-289. Particularly, see Fu Zhaolong, "Quanli zhiyue - yitiao zhongyao de zhengzhi guilu" (Control of Powers - An Important Rule of Politics) in Zhongguo Faxue (Legal Science) 2/1993, pp. 64-70 for a discussion of the need to check the state's abuse of power by constitutional means. See also Du Gangjian, "Cong zhuanzheng dao xianzheng," ("From dictatorship to constitutionalism") in Zhejian xuekan 3/1992, pp. 36-40. Reprinted in Faxue 7/1992, pp. 33-37.

[66]See "China's Changing Constitution," p. 794, op. cit.

[67] See "The Maoist Constitution of 1975," op cit. Such "opinionated" analysis, though rare is not uncharacteristic of the "cold war" mentality shared by some of the China watchers of that time. See Justice and Politics in People's China op. cit.  "Misunderstanding China: Five Generations of Scholarly Inquiry" pp. 5-11 (Chinese scholars can be classified into "collaborators", "cold warriors", "legalists". "functionalists", and "Marxists".)

[68]See Guan Xinji, "Socialist Constitutions in Comparative Perspective,"  B. Weng (ed.) in Chinese Law and Government (2-3)1983, pp. 3-12.

[69] S. E. Finer observed that: "Constitution-writers in different countries have different concerns.  Their purpose in writing a new state law is nothing but a response to the changed circumstances. ... Therefore, all constitutions contain the elements of autobiography and individuality... Different historical backgrounds give rise to different concerns; and different concerns bring about different emphases" Five  Constitutions (Sussex: Harvester Press, 1977), pp. 21-2.

[70] "Socialist Constitutions in Comparative Perspective," op. cit..

[71]There were to be dissenters. As early as 1940, Dong Biwu, the visionary PRC legalist, saw  the need to separate the Party from the government.  Though Dong did not specifically mentioned using the constitution to achieve the institutional separation of powers and would have settled for a Party policy of non-intervention, the constitution remains to be the logic place to provide for such separation of powers. That was in fact done in the 1982 Constitution. Dong Biwu, "Genghao di lingdao zhengfu gongzuo" (To lead government work better) (20 August, 1940) in Dong Biwu, Zhengzhi falu wenji  (A collection of political and legal work of Dong Biwu) (Beijing: Falu Chubanshe, 1985), pp. 1-8, pp. 3. (The Party should not directly control government works.  It should not be able to give direct order and instruction to government officials. The Party influences government work through the control of Party members who work as government officials.  It also affects the work of government through the promulgation of Party policies and rules.)

[72] See "The People's Democratic Dictatorship," op. cit.  It should be observed that Marx analysis, even if theoretically correct and empirically valid, only provides for  a macro-structural explanation of official deviance.  It does not address adequately deviance caused by micro-individual factors. Simply stated, not all official abuse of powers are structurally induced. 

[73] It is argued by the communist that a constitution is necessary in a capitalistic society precisely because of it exploitative nature.

[74] See "How to Be a Good Communist," op. cit., p.129.

[75] "The power of the border government came from the mass (qunzhong) ... The government has  to listen to the mass, adopt the mass viewpoints, under the mass life, protect he mass's interest. And that is not enough. It must see to it that the mass have courage to criticize the government, supervise its work, and replace unsatisfactory workers. .. Only through this can the mass feel that the government is a  tool in their own hand and the government really their own government."  Dong Biwu, "Genghao di lingdao zhengfu gongzuo" (To lead government work better) (20 August, 1940) in A collection of political and legal work of Dong Biwu op. cit., pp. 1-8, 5-7: "Dangyuan fanfa ying jiazhong zhizui" (Party members should be punished more for violating the law). See also Dong Biwu, "Lun jiaqiang renmin dabiao huiyi de gongzuo" (Discussion on strengthening people's congress work) (September, 1951), id pp. 174-193, 187 (The people are the masters, people's representatives and government cadres are all permanent workers).

[76] Mao conceded the need to have a duly establish state authority to "protect" the people in the transitional period to the communist state. Ibid, p. 418.

[77] Peng Zheng, one of the two (besides Dong Biwu) most prominent legalists within the Communist ranks, disagreed with such an analysis.  He observed, disapprovingly, that: "A few worker and peasant comrades were of the opinion that since the people are masters of their own affairs (dang jia zuo zhu), they need not obey the law" in "Gongmin zai falu mianqian renrenpingdeng" (Citizens are equal before the law) (Delivered at the First meeting of the First N.P.C., 17 September, 1954) in Peng Zheng Lun xin zhongguo de zhengfa gongzuo (A discussion on political-legal work in new China) (Zhongyan wenxian chubanshe, 11/1991), pp. 104-8, 104. 

[78] See  Justice and Politics in People's China op. cit., especially Chapter 4: "Popular Revolution and the Creation of People's Justice" pp. 55-69. Mao was misguided theoretically and ill informed empirically.  Material conditions, economic relations, and class status do not exhaust the totality of  human experience. Economic determinism is too deterministic.  Material structuralism is too reductionist.  Both fail to take human agency into account.  See the effort of one scholar to preserve the creativity of human agency in the face of sterile structuralism by introducing agency and culture back into the social structure model.  Anthony Gidden, The Constitution of Society: Outline of the Theory of Structuration (Berkeley and L.A.: University of California Press, 1984).  See also Sharon Hays, "Structure and Agency and the Sticky Problem of Culture," in 12 Sociological Theory 57-72 (1984).

 [79] Selected Works of Mao Tse-Tung Vol. 1 (Beijing: Foreign Languages Press, 1977), p. 28.

[80] See "The Party's Mass Line Must be Followed in Suppressing Counter-revolutionaries" (Instructions added by Mao Tsetung when revising the draft resolution of the Third national Conference on Public Security) Selected Works of Mao Tse-Tung Vol. V (Beijing: Foreign Languages Press, 1977) pp. 50-52, 51.

[81] See "Zhonghua renmin gongheguo zhongyan renmin zhengfu zuzhifa de caoyi jingguo he qijiben neirong" (The drafting process and fundamental content of the Organic Law of P.R.C. Central Government) (22, September, 1949 at the first meeting of the Chinese People Political Consultative Committee.  Dong was asked to assume responsibility for drafting the Organic Law of P.R.C. Central Government).  Dong noted that democratic centralism is much superior than separation of powers, which is a farce perpetrated on the part of the capitalists to divide and conquer the oppositions and to achieve political dominance.  See A collection of political and legal work of Dong Biwu, pp. 71-81, 73-4.  Dong was clearly concerned with the structural and practical problems associated with western political institutions, e.g. in the U.K. there were too many legislative meetings, in the U.S. the President could veto a legislation passed by the Congress, and the Supreme Court could declare a law to be unconstitutional. See Dong Biwu, "Lun xinminzhu zhuyi zhengquan wenti" (16 October, 1948), Ibid pp. 33-44, p. 41.

[82]  "On the Correct Handling of Contradictions Among the People'" op. cit. pp. 384-422, 385-6.

[83]  Ibid However, at an early time, Mao did not dismiss the use of punitive measures: "When anyone among the people breaks the law, he too should be punished, imprisoned or even sentenced to death; but this is a matter of individual cases..."  He did not specific under what circumstances such coercive punishment should be used.  Nor did he provide a justification for using "death penalty" against the people. "On The People's Democratic Dictatorship," in  Selected Works of Mao Tse-Tung Vol. 1V (Beijing: Foreign Languages Press, 1961), p. 411-424, p. 419.

[84] See  Donald J. Munroe, The Concept of Man in Contemporary China (University of Michigan Press, 1977), pp. 9-13 ("All history is nothing but continuous transformation of human nature." The human "essence" is the ensemble of social relations. In Marx-Engels account, human nature is determined by both what men produce and how they produce. .. A fundamental assumption in their historical materialism is belief in the perfectibility of human species.")

[85] Ibid pp. 16-7.

[86]See Chapter 4 :The Function of Government." Ibid pp. 84-196, p. 84.     

[87] Ibid

[88] Ibid p.106.

[89] See Guan, supra, p. 18.


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