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The Chinese Legal Tradition And The

European View Of The Rule Of Law:
 

 Grahat Nagara

Modern Constitution in China


 
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£  Ô established £ a a    Each
from patriarchal system (|) dynasty write and compile its
and from autocratic state own judicial precedents and
with centralized nationalism orthodoxy. Although on
(

). Rite regulating special case older judicial
individual obligation to keep principles adopted or
peace with the clan. absorbed.

individualism
Ô    collectivism 
written-law case-law mixed/hybrid
   
 
 
|

£ -eriod 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 (|

 
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£ -eriod 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 ʹ 330 BC) of Qin.
£ Eg. Same law applicable both for nobleman and
commoner (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 ruled
by blood lineage of patriarchal clan, but institution of
regional administration (except for Zhuo with ͚2

). After the death of Yang, the next ruler of Qin
keep practicing Yangs reform.
 2p
£ -eriod 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 ʹ due to vast area of custom and scope of aspect
of 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 maintained
social basis of the system ʹ patriarchal clan.
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£ 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 introspects
and revised its ͚savage and uncivilized law.

£ The treaty and social change give birth to legal reform

movement.
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£ Empress Dowager issued a decree to implement new
policy and to establish ͞constitution͟.
£ This introduce clash between the |supporter and legal
theorist. The rite supporter argue that this new ideal has
no root and that stability of the state should be based on
stability of clan thus patriarchal clan and feudal rights
should be maintained. While the legal theorist suggest
that its time for China to catch up with the world progress,
use the individualism and liberalism as methodology to
stand down on its own feet.
£ Despite the debate, revision of law swept away most
portion of traditional spirit. Codified law into actual legal
articles established. Important principles such as legality,
transparency in trial and judgement, and equality before
the law established and codified. The separation of law
and its procedural law introduced. (Europanization of
Chinese Law).
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£ 
, ͞a society may be called the Great Order ʹ which is the
perfect state for a country ʹ 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.͟
£ M
  (1936), if the theory of |



|
 |could only be done by the powerful backing
of constitutionalism.
£ î  
a, 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 he
boasted 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: m

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£ According to legalist, rule of law must be abide by all except the
monarch.
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£ 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 1908
constitution.
£ 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, which
in led to Interim Constitution and introduce totalitarian control.
£ National -arty gained another constitution acknowledgement on
1936 and remained up to 1946 before they was swept away to non
mainland (Taiwan).
6
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£ After expelling the national party, the Communist gain power of
whole mainland. The communist party introduce Interim
Constitution of -eoples Republic of China. The Chinese -eople
-olitical Consultative Conference (C--CC) afterward enact the
interim constitution (1949).
£ After serious discussion Mao Zedong, with the C-CC, as inline with
the Marxism introduce preamble, seven chapters, and 60 articles
of ͞constitutional document͟. It proclaimed the creation and
legitimacy of the -RC and laid down the states basic policies and
tasks, together with the peoples fundamental rights and
obligations.
£ It established that the -RC acknowledged the peoples democratic
dictatorship, to be exerted through the peoples congresses and
governments at various levels.
6

 
£ 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 develop
within the limits prescribed by law. -rivate 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
|2|'    
£ 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 law
principle, of which the 1999 amendments are a first
endorsement.



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Culture Eastern Western
Contextual Ancient Modernity
background wisdom
Value bases Collectivism Liberalism and
and autocracy individualism
Governmental Centralized Democracy
form autocracy
association
 
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£ First, different contextual background and thus objective. While US
after the warfare with britain, held constitution to forge
nationhood. The first Chinese constitution was to ͞save͟ Qing
Dynasty.
£ Second, fundamental aims of US constitution was to have proper
balance between liberty and authority, Chinese constitution often
held as instrument of economics and political gains of the
Communist parties.
£ Third, US constitution are more rigid then Chinese. Where
ammendement required bi partisan agreement. Chinese
constitution however easily change with the power of communist
party to gain access to the National -eoples Congress N-C who had
the power to enact constitution.
£ Fourth, while US constitution is deemed for review by the court
and ultimately the Supreme Court. The only organs who had the
power to review constitution in China, is the N-C in which also the
organ who enact the constitution.