NCJ Number
44309
Journal
Journal of Criminal Law and Criminology Volume: 68 Issue: 3 Dated: (SEPTEMBER 1977) Pages: 356-373
Date Published
1977
Length
18 pages
Annotation
MAO'S INFLUENCE ON THE CHINESE LEGAL SYSTEM IS EXAMINED IN TERMS OF TWO MODELS OF LAW, THE CLASS NATURE OF JUSTICE, LAW AS A SOCIAL ENGINEERING TOOL, AND THE IMPACT OF THE ANTI-CONFUCIAN AND PROLEGALIST CAMPAIGNS.
Abstract
AS POSITIVE LAW AND THE CONFUCIAN MORAL CODE COEXISTED IN TRADITIONAL CHINA, JURAL (FORMAL) AND SOCIETAL (INFORMAL) MODELS OF LAW COEXIST IN CONTEMPORARY CHINA. IN BOTH INSTANCES, FORMAL RULES HAVE PLAYED A SECONDARY ROLE. THE CONTEMPORARY INFORMAL MODEL REPRESENTS A DISTINCTLY MAOIST APPROACH TO LAW. THE JURAL MODEL HAS BEEN IN CONSISTENT DECLINE SINCE 1957, WITH THE EXTRAJUDICIAL PROCESS OF LAW ENFORCEMENT AND DISPUTE RESOLUTION RECEIVING EVER GREATER EMPHASIS. THE CLASS NATURE OF LAW IS AN ESSENTIAL COMPONENT OF COMMUNIST JURISPRUDENCE. USING THE CLASS LINE APPROACH, MAO PROVIDED A THEORETICAL FRAMEWORK FOR DIFFERENTIATING AND RESOLVING SOCIAL CONFLICTS. CONFLICTS BETWEEN THE PEOPLE AND THE ENEMY ARE TO BE RESOLVED THROUGH THE 'METHOD OF DICTATORSHIP,' WHEREAS CONFLICTS AMONG THE PEOPLE ARE TO BE RESOLVED THROUGH THE 'METHOD OF DEMOCRACY.' TWO CONCEPTS HAVE INFLUENCED THE CHINESE PERCEPTION OF THE ROLE OF LAW: THE MARXIST-LENINIST VIEW OF LAW AS A POLITICAL TOOL OF THE PARTY; AND MAO'S IDEA OF 'UNINTERRUPTED REVOLUTION,' CALLING FOR A CONTINUOUS EFFORT TO MOLD AND REMOLD HUMAN NATURE. THESE CONCEPTS COMBINE IN THE PERCEPTION OF LAW AS AN INSTRUMENT OF SOCIAL ENGINEERING. A CAMPAIGN TO DENOUNCE CONFUCIANISM AND PRAISE LEGALISM BEGAN 1972, INTENSIFIED IN 1973 AND 1974, AND FADED INCONCLUSIVELY IN EARLY 1975. THE CAMPAIGN APPARENTLY WAS BASICALLY POLITICAL. HOWEVER, IT MAY HAVE THE LONG-RANGE EFFECT OF DEVELOPING GREATER RESPECT FOR FORMAL LAWS AND PROCEDURES IN CHINA. MAO'S INFLUENCE ON CHINESE LEGAL DEVELOPMENT IS REFLECTED IN THE EMPHASIS ON THE SOCIETAL MODEL OF LAW OVER THE JURAL MODEL, ON FLEXIBILITY AS OPPOSED TO RIGIDITY IN THE APPLICATION OF LAW, ON THE POLITIZATION OF THE LEGAL PROCESS, AND ON THE USE OF LAW AS AN INSTRUMENT FOR TRANSFORMING CHINESE SOCIETY. DESPITE MAO'S DOMINANCE, THERE HAS BEEN AN UNDERCURRENT RUNNING TOWARD A MORE STABLE LEGAL ORDER. THE SWING TOWARD INSTITUTIONALIZATION, SPECIALIZATION, AND ECONOMIC DEVELOPMENT THAT FOLLOWED THE DEATH OF MAO IS BOUND TO AFFECT THE ROLE OF LAW IN CHINA.