Rule of Law China

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rule of law dankonstitusi dalam

tradisi hukum China

The Chinese Legal Tradition And The

European View Of The Rule Of Law:

W u-Shu Chen

Modern Constitution in China

Lin Feng

Grahat Nagara



Chinese legal tradition

value basis

legal practices/type

individualism

collectivism CHINA

written-law case-law mixed/hybrid

� Collectivism established

from patriarchal system (rite)

and from autocratic state

with centralized nationalism

(the law ). Rite regulating

individual obligation to keep

peace with the clan.

� Mixed legal system. Each

dynasty write and compile its

own judicial precedents and

orthodoxy. Although on

special case older judicial

principles adopted or

absorbed.



the rule of rite

� Period of Xi-Zhou and Chun Qiu (11th century BC to 771BC

and 770 BC to 476 BC).

� Eg. Filial obedience to the elders, judge position. Trial

result should also comply to the rite as no other written

source of law.� Other characteristics is that the practice of law very

depended on the ruler as individual. Therefore the good

governance of an estate or a case being judged correctly

largely depended on subjective, individual qualities and

mettle of the person wielding authority (rule of individual ).



the ruling by the law

� Period of Warring States and Qin Dynasty (475 BC to 221

BC and 221 BC to 206 BC). War between the Wei, Han, Qin

(Duke Xiao), Chu, Zhao, Qi (landlords in Zhuo Dynasty).

� Legalism develop with Shang Yang (390 330 BC) of Qin.

� Eg. Same law applicable both for nobleman andcommoner (Ying Si (later King Huiwen) banished), military

law of the Heaven, the judge had to comply strictly with

written law.

� Monarch reflected in law, that individual had to obey

unconditionally. The state at this time has no longer ruledby blood lineage of patriarchal clan, but institution of

regional administration (except for Zhuo with mandate

of heaven). After the death of Yang, the next ruler of Qin

keep practicing Yangs reform.



mixed law

� Period of Western Han and Qing Dynasty (202 BC to 1912

AD).

� Eg. Although judges were expected to try cases according

to written law, the written laws impact on the land was

limited due to vast area of custom and scope of aspectof life.

� As the rule of law maintain central autocratic monarchys

political system. The law became tools which monarch

expressed his will and intention including controlling

colossal bureaucratic machine. While the rite maintainedsocial basis of the system patriarchal clan.



opium wars and crisis of Chinese legal

tradition

� Opium wars on Qing Dynasty (1820) give birth to a treaty:

± The exception of Chinas law for foreigner who committed

crime in China. At this moment consular jurisdiction

undermining the feudal court. The treaty mentioned that

this dictum will be abandoned whenever China introspectsand revised its savage and uncivilized law.

� The treaty and social change give birth to legal reform

movement.



Qing Dynasty save the Monarch (1902-

1911)

� Empress Dowager issued a decree to implement newpolicy and to establish constitution.

� This introduce clash between the rite supporter and legaltheorist. The rite supporter argue that this new ideal has

no root and that stability of the state should be based onstability of clan thus patriarchal clan and feudal rightsshould be maintained. While the legal theorist suggestthat its time for China to catch up with the world progress,use the individualism and liberalism as methodology tostand down on its own feet.

� Despite the debate, revision of law swept away mostportion of traditional spirit. Codified law into actual legalarticles established. Important principles such as legality,transparency in trial and judgement, and equality beforethe law established and codified. The separation of lawand its procedural law introduced. (Europanization of

Chinese Law).



ruling by the law: theory of ancient

Chinese

� Guan Zi, a society may be called the Great Order which is the

perfect state for a country only when everybody in this society,

from the monarch himself, through civil or military officials, the

nobles, to the common people, abides by the laws.

� Liang Qichao (1936), if the theory of ruling by the law could ever be put into practice, it could only be done by the powerful backing

of constitutionalism.

� Rule of law paradox, A merchant was selling a spear and a shield

in the market. He declared his spear to be the sharpest in the

world, and that it could pierce any shield. At the same time heboasted that his shield was the most solid in the world and that it

could not be pierced by any spear. The people confuted him with a

very simple question: W hat happens if you use your spear

against your shield?.

� According to legalist, rule of law must be abide by all except the

monarch.



E arl y constitutional development

(1912-1946)

� The establishment of monarchial constitutional structure was

suggested and general principles of constitution outlined on 1908.

However this constitution immediately swept after Sun Yat Sen

interim president promulgated interim constitution which then

accepted by the senate, automatically remove the 1908constitution.

� For the first time of the history of 2000 years feudal of China,

sovereignty belong to all people. It is also incorporated election,

democratic freedom, and separation of powers. This constitution

however then encourage warlords to gain political conquest, whichin led to Interim Constitution and introduce totalitarian control.

� National Party gained another constitution acknowledgement on

1936 and remained up to 1946 before they was swept away to non

mainland (Taiwan).



T he Common Program (1949)

� After expelling the national party, the Communist gain power of

whole mainland. The communist party introduce Interim

Constitution of Peoples Republic of China. The Chinese People

Political Consultative Conference (CPPCC) afterward enact the

interim constitution (1949).

� After serious discussion Mao Zedong, with the CPCC, as inline with

the Marxism introduce preamble, seven chapters, and 60 articles

of constitutional document. It proclaimed the creation and

legitimacy of the PRC and laid down the states basic policies and

tasks, together with the peoples fundamental rights andobligations.

� It established that the PRC acknowledged the peoples democratic

dictatorship, to be exerted through the peoples congresses and

governments at various levels.



T he 1982 constitution

� It officially confirms the primacy of the constitution and

the fact that other legislation ought to be grounded

thereon. No laws or administrative rules and regulations

may contravene the constitution.

�The State allows private economy to exist and developwithin the limits prescribed by law. Private economy

integrates socialist public economy. The State protects the

lawful rights and interests of the private sector of

economy, and exercises its guidance, supervision and

control over it



remarks constitution afterwards

� After the 1949, the constitution of China amended

several times including on 1982, 1975, 1978, and 1954.

� If China really wishes to develop a lasting and respectable

constitutional order, it may have to give up its

instrumental approach and adopt the rule of lawprinciple, of which the 1999 amendments are a first

endorsement.



Chinese legal tradition and Europeans

rule of law in comparison

China European

Culture Eastern Western

Contextualbackground

Ancientwisdom

Modernity

Value bases Collectivism

and autocracy

Liberalism and

individualism

Governmental

form

association

Centralized

autocracy

Democracy



Chinese and US constitution in

comparison� First, different contextual background and thus objective. While US

after the warfare with britain, held constitution to forgenationhood. The first Chinese constitution was to save QingDynasty.

� Second, fundamental aims of US constitution was to have proper

balance between liberty and authority, Chinese constitution oftenheld as instrument of economics and political gains of theCommunist parties.

� Third, US constitution are more rigid then Chinese. Whereammendement required bi partisan agreement. Chineseconstitution however easily change with the power of communist

party to gain access to the National Peoples Congress NPC who hadthe power to enact constitution.

� Fourth, while US constitution is deemed for review by the courtand ultimately the Supreme Court. The only organs who had thepower to review constitution in China, is the NPC in which also theorgan who enact the constitution.

Documents

Rule of Law China