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Product Details
| ISBN-13: | 9780815722915 |
|---|---|
| Publisher: | Bloomsbury Publishing |
| Publication date: | 11/05/2012 |
| Series: | The Thornton Center Chinese Thinkers Series |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 269 |
| File size: | 1 MB |
About the Author
He Weifang, one of China's most influential public intellectuals, is a professor of law at Peking University in Beijing. In 2011 he was named by Foreign Policy as one of its top 100 global thinkers.
Cheng Li, a senior fellow and director of research in the John L. Thornton China Center at Brookings, is editor of China's Emerging Middle Class (Brookings, 2010).
John L. Thornton is chairman of the board of trustees at the Brookings Institution and professor and director of global leadership at Tsinghua University.
Read an Excerpt
IN THE NAME OF JUSTICE
Striving for the Rule of Law in ChinaBy HE WEIFANG
BROOKINGS INSTITUTION PRESS
Copyright © 2012 THE BROOKINGS INSTITUTIONAll right reserved.
ISBN: 978-0-8157-2290-8
Chapter One
The Ongoing Quest for Judicial Independence in Contemporary China
On September 23, 1821, an accident occurred while an American ship from Baltimore, named Emily, was loading cargo in Guangzhou. A woman on a nearby boat fell into the water and drowned. Her family accused a crewmember from the Emily, Francis Terranova, of hitting the woman with an earthen jar, which caused her death. The Americans insisted that the woman fell into the water inadvertently and Terranova had nothing to do with her death. The local magistrate of Panyu County heard the case on October 6 on the ship Emily, where the trial was held. According to British scholar Hosea Ballou Morse's account, the hearing was a complete sham:
He [the local magistrate of Panyu County] asked the Americans what defense they intended to put forward, and they delivered their defense as follows: "Our evidence can prove, that the Jar which is said to be the instrument that caused the death of the woman, was safely delivered by the accused into her hands, and that she fell overboard at the distance of thirty feet and upwards from the ship Emily, that she was seen from on board the Hero of Malown (an English ship laying near the Emily) to fall overboard whilst in the act of sculling her boat, that no jar or any such instrument was thrown at her, or caused her falling into the water, that from the relative situation of the boat to the ship, it was impossible to strike the woman on the side of the head on which the wound was inflicted, and that the jar could not have cut the hat in the manner in which it was cut—We declared as our belief, that the boat, having been swept by the strength of the tide some distance from the ship, the woman in her anxiety to regain her station had by a misstep fallen overboard and in the act had struck her head against the pivot on which the scull moves, or the sharp edge of the boat which caused her death.
Then prosecution witnesses delivered testimonies, which, in the eyes of the defense, were either self-contradictory or not indicative of what had really happened at the incident site at all. However, "the magistrate denied any argument for the defense ... claiming that having seen the corpse of the woman and the earthen jar with his own eyes, he was convinced that the accused was guilty and that even if his judgment erred, it was the mandate of Heaven. He stood up from his seat in great rage. The trial seemed to have already been brought to an end."
To the astonishment and dismay of the foreigners, the local officials of Guangdong had the accused executed by strangulation within forty-eight hours without waiting for the final decree of the emperor. Moreover, "the report submitted to the emperor contained distorted information on the evidence and adjudication."
The Emily incident was concluded quickly, but the clash of legal systems and legal concepts between China and the West in their early interactions became a very difficult, ongoing problem. Although Western powers' colonialist policies were responsible for the modern military conflicts between the West and China, one must admit that if China's legal and justice system had not been so unreasonable either in concept or actual practice, many disputes would have been resolved fairly without resulting in war. However, it was China's failure in said war and the subsequent Western oppression that naturally led many Chinese to question the traditional legal system—in particular, to reflect on the judicial system as well as on the reform of law and the judiciary.
With its long history and advanced civilization, China is proud of its tradition of written law. According to the famous Japanese legal scholar Shiga Shuzo, the Chinese legal system achieved great accomplishments over the course of its development. Why then did Westerners become increasingly intolerant toward China's legal system and its enforcement in the early modern era? What exactly was the classical judicial system in China? It is necessary to review the basic structure of the old judicial system as it provides context for its evolution in this century. In light of the theme and limited length of this chapter, I will only focus on the most basic characteristics in general terms.
Old Tradition
China's classical judicial system developed gradually through a long process of historical evolution, along with its political, economic, and other social systems. It also shared the same axiological implications with the other systems. With the recognition that judicial function is an essential part of government, the importance of the judicial system in China's traditional government structure was unique in the world. Therefore the main characteristics of this judicial system can be summarized by examining the relationship between the structure of government and society.
The government structure of ancient China can be divided into two levels: the central government and subnational governments. At the higher level, the central government included the "three departments" (the Department of State Affairs, the Chancellery, and the Secretariat) and the "six ministries," among which the Ministry of Punishment (xingbu), the Censorate (duchayuan), and the Court of Judicial Review (dalisi) were more concerned with law. Of course, the emperor was always the paramount authority when legal disputes or other issues were involved. But as far as the everyday life of ordinary people was concerned, the central government, or even government at the provincial level, was not that important. When disputes arose among people concerning reasons or amounts that were not significant enough and that failed to be solved privately, or when misdemeanors were involved, they would turn to the county government for help.
County officials were at the end of the power network by which the whole country was ruled. These officials were appointed by the central government and were responsible for collecting taxes, maintaining social order, and resolving disputes. Included in those functions was what we would today call the judiciary, which was very important at that time.
Much research has been done on the traditional judicial function of local officials. But here I want to explore the characteristics of this judicial tradition and its potential influence on today's society from another perspective—one that emphasizes the impact of the social systems and sociological factors on the actual work of the judicial system, as well as on the relationship between knowledge and power.
Concentration Rather Than Separation of Powers
The most distinctive structural characteristic of the traditional Chinese local government was that there was no arrangement whatsoever for the separation of powers. The county magistrate had comprehensive responsibilities. The three basic governmental functions, namely, the enacting of rules (legislature), the execution of rules (administration), and the resolving of disputes (judiciary), which are taken for granted today, rested entirely with the magistrate alone. Although he was subject to the supervision of higher government, within the local government, he held absolute power and was beyond the supervision and check of any entity. All others working inside the government served as the magistrate's consultants or assistants and had no authority at all to check the magistrate's power. It was because of this fact that Wang Huizu, a famous consultant in the Qing dynasty, remarked, "Among the existing powers, except for that of province governors, the most important one is that of county magistrates.... Why? They have concentrated powers."
The concentration of power was obvious in the judicial process. According to Ch'u Tongtsu's description, "[the] magistrate heard all cases under his jurisdiction, civil as well as criminal. And he was more than a judge. He not only conducted hearings and made decisions; he also conducted investigations and inquests, and detected criminals. In modern terms, his duties combined those of judge, prosecutor, police chief, and coroner, comprising everything relating to the administration of justice in its broadest sense, and the failure to carry out any of these duties incurred disciplinary actions and punishments, as defined in the many laws and regulations."
To people today who have read Montesquieu's works and firmly believe in the value of separation of powers, and who hold the view that "power tends to corrupt, and absolute power corrupts absolutely," the government model from the past with its highly concentrated powers is most frightening. Indeed, there exist countless examples in the traditional politics of China that testify to the various defects of this despotism. But there is no system that is without at least some advantage. The highly concentrated powers in the county governments helped improve efficiency. Without other parallel powers to those of the magistrate, without an independent judiciary, a corrupt official could pervert the law and exploit the people at his will, but an upright and incorruptible official could also give full play to his administrative talents without any impediment. From the perspective of "rule by man," unity in government often made it difficult for people to gain rights to which they were entitled because there was nowhere to turn other than to this sole government. But on the other hand, the costs to people of dealing with the government (including bribery costs) remained low because of the uncomplicated nature of government, and they were spared the trouble of coming to terms with the blinding array of government agencies that people today have to face. In addition, in a society with agriculture as its leading pillar, the simplicity of this government also helped reduce the number of officials and thus avoided imposing on people's livelihoods through high taxes.
Of course, from the perspective of establishing a modern judicial system, the most significant impact of this traditional model of a highly centralized government is that it prevented the knowledge and development of judicial independence. It did not even provide a context for this principle. Although there have always been so-called upright and incorruptible officials and strong expectations of fair and honest judges, those were moral requirements of officials and quite apart from the notion of judicial independence.
Rule of Knowledge
Still, the lack of institutionalized checks on this kind of government causes significant concern for modern observers. How could powerful county officials not become dictators? In fact, the traditional selection process for county officials contributed to important restrictions on the use of powers by these officials.
The Imperial Civil Service Examination system (keju kaoshi) had a significant influence on the traditional political and legal system. It meant, first of all, equality. Gaining political powers was no longer solely decided by blood or status. There were, at least in a formal way, more equal opportunities open to people of obscure birth to compete for political positions. Furthermore, the standard for this competition was not physical ability, but literae humaniores based on Confucianism. Although it became rigid over time, the widespread use of Imperial Civil Service Examinations resulted in the administration of social affairs by the intelligentsia. In order to prepare for the exams, people needed to become extremely familiar with the ancient classical works and explanations of those works by Confucian masters of the past. Examinees were required to give persuasive explanations of some views themselves. Thus the process of preparing for the exams was also a process of Confucianization. The political philosophy of Confucianism and related theories became deeply etched in the minds of prospective county officials and constituted a potentially effective check on the use of power in the future.
It should also be noted that the combination of the above two features guaranteed the authority and legitimacy of the traditional government. Because the possibility of becoming an official was open to anyone, unfairness deriving from selection standards based on status or blood disappeared. Even people who failed could only criticize themselves for not being capable enough and admire or envy those who succeeded. As a result, this equality made reasonable the differences between the rulers and those being ruled and reinforced people's obedience to their rulers.
Rule of Unspecialized Knowledge
Although the imperial examinations represented the traditional model of rule, with the knowledgeable ruling the ignorant, they did not promote the division and specialization of knowledge but rather impeded it by narrowly emphasizing the Confucian standards and poetic techniques. As Max Weber pointed out, "The educational qualification, however, in view of the educational means employed, has been a 'cultural' qualification, in the sense of a general education. It was of similar, yet of a more specific nature than, for instance, the humanist educational qualification of the Occident.... The Chinese examinations did not test any special skills, as do our modern rational and bureaucratic examination regulations for jurists, medical doctors, or technicians.... The examinations of China tested whether or not the candidate's mind was thoroughly steeped in literature and whether or not he possessed the ways of thought suitable to a cultured man and resulting from cultivation in literature." Though people who succeeded in those exams were involved in the judgment and resolution of disputes, because of the singleness of their knowledge and background, the officials' judicial activities were not able to contribute to the growth and development of independent and specialized legal knowledge.
In fact, the traditional Chinese legal concept was a direct result of a judicial process dominated by laymen. In Western history, the independence of legal professionals as a group originated with and was connected to the restrictions inherent to the accessibility of the profession, based on the pursuit of profits. In fact, a profession could not obtain broad social resources without the establishment of a so-called abstract expertise system. Judges apply strict legal procedures to their assigned cases and make decisions without interference. Those decisions become unshakable once they obtain procedural validity. All of those principles are taken for granted in the West.
But in China, the judges were not lawyers, and they usually did not specialize in law. When they dealt with disputes and cases—mostly what we would label as civil cases today—there was no certainty of law. What they were applying was a combination of law, ethical standards, and the community's customs. As the origin of modern law, this provided no clear boundaries between the different sources of this mixed body of rules. When local officials handled cases, they were not able to apply different legal rules and sources as the judges do today. At the same time, because of their training for the imperial examinations, in order to support certain decisions in a case, they always relied on resources from the teachings of Confucianism or historical works, which had no legal implications. When the records of some of the "famous trials" are seen from today's point of view, they are more valuable as literary or rhetorical references than legal documents.
Judicial Proceedings without Adversity
The lack of involvement of lawyers in legal proceedings further reinforced the uncertainty of rules, which had been established by county magistrates rather than by lawyers. Even though dialecticians, such as Deng Xi and Gongsun Long, had appeared in court representing petitioners from very early times, Confucianism and Taoism adopted a negative attitude toward them. They were considered to know only logic but not right or wrong, and thus posed a threat to the social order. The joint influence of Confucianism and Taoism inhibited the development of logic as a discipline throughout China's two thousand years of history. According to Chinese American historian Tang Degang, it was this different legal concept that created the sharp contrast in the development of logic between China and the West.
(Continues...)
Excerpted from IN THE NAME OF JUSTICE by HE WEIFANG Copyright © 2012 by THE BROOKINGS INSTITUTION. Excerpted by permission of BROOKINGS INSTITUTION PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Foreword John L. Thornton vii
Acknowledgments xiii
Introduction Cheng Li xvii
Prologue: An Open Letter to Legal Professionals in Chongqing 1
Part I Judicial Independence: China's Treacherous Path
1 The Ongoing Quest for Judicial Independence in Contemporary China 9
2 Mencius on the Rule of Law 40
Part II Constitutionalism and Judicial Review
3 China's First Steps toward Constitutionalism 63
4 Constitutionalism as a Global Trend and Its Impact on China 101
5 Remarks Given at the New Western Hills Symposium 125
Part III The Expansion of Legal Education and the Legal Profession
6 China's Legal Profession: The Emergence and Growing Pains of a Professionalized Legal Class 133
7 Foreign Models and Chinese Practice in Legal Education during the Reform Era 144
Part IV The Legal Protection of Free Speech
8 Freedom of the Press: A Necessary Condition for Social Stability in China 175
9 An Open Letter to the CCP Politburo Standing Committee Regarding Media Censorship 181
Part V The Legal Protection of Human Rights
10 Challenging the Death Penalty: Why We Should Abolish this Barbaric Punishment 191
11 A Plea for Genuine Political Progress in China 216
Notes 221
Further Reading: The Writings of He Weifang, 1984-2010 243
Index 249
What People are Saying About This
"China stands at a crossroads. Will the Chinese Communist Party continue to remain essentially outside the law, or will China embrace the rule of law in a way that gives its citizens both secure property rights and meaningful human rights? No scholar has formulated this dilemma with greater clarity —and passion —than He Weifang.
No one who wishes to understand China today can afford to ignore this book." —Niall Ferguson, Laurence A. Tisch Professor of History, Harvard University
"Since the 1990s, Peking University professor He Weifang has emerged as one of China's most influential public intellectuals, passionately advocating for legal reform and political liberalization. The excellent translations in this volume allow English readers to fully grasp his depth (and humor) on topics ranging from judicial independence to the death penalty." —Carl Minzner, Associate Professor of Law, Fordham Law School
"In this truly timely collection, the noted scholar He Weifang displays the erudition,
wisdom, and courage that have made him an exemplar of what is best about the legal profession in China and beyond. Kudos to the Thornton China Center for this welldone volume, which will ensure the heroic Professor He's ideas receive the circulation they deserve in the western world." —William P. Alford, Henry L. Stimson
Professor of Law and Director of East Asian Legal Studies, Harvard Law School