Socialist Legal Theory in Deng Xiaoping's China


SOCIALIST LEGAL THEORY IN
DENG XIAOPING'S CHINA

CARLOS WING-HUNG Lo"

I. INTRODUCTION

After assuming supreme power in the People's Republic of China in
late 1978, Deng Xiaoping was most insistent that law was essential to
socialist modernization and that Maoist legal nihilism had to be combated.
He inaugurated a massive program to reform and restructure the legal
system. Accordingly, the Party and State Constitutions were revised, law
was codified,judicial organs were reorganized and the academic discipline
of legal studies was revived. The aim was to replace what was referred to
as the 'rule of persons' by the rule of law. By the time of his death in early
1997, much had been achieved. Though defects in the system remain and
have been highlighted by many scholars, it is fair to say that China's
socialist legal system has gone far beyond the old instrumental notion of
safeguarding the rule of a Marxist Party. In the context of promoting
economic modernization, law has increasingly been seen as the principal
means for resolving conflict and maintaining social order. While many
scholars have noted Deng's limited success in instituting the rule of law,'

one must concede that China is no longer faced with the legal nihilism of
the Maoist era.

* Carlos Wing-Hung Lo is Associate Professor in the Department of Management at the
Hong Kong Polytechnic University, the author of China's Legal Awakening: Legal Theory and
Criminal Justice in Den g's Era, and the Chief Editor of theAsian Journal of Business & Infonnation
Systems. The author would like to thank Mr. Robert Phay, the former Editor-in.Chiefof thisJournal.
for reading and commenting upon earlier drafts and Prof. Bill Brugger for his generous help in
revising this paper.

1. As most Sinologists and foreign jurists see it, Deng's contribution to China's legal system
is still limited, since the Chinese legal system has still failed to satisfy the rule of law. See generally
John Copeland Nagle, The Rule of Law in Mainland China, 2 A.,MERICAN ASIAN REv. 157 (1996);
Donald C. Clarke & James Feinerman, Antagonistic Contradictions: Criminal Law and Human
Rights, 141 CHINA QUARTERLY 135 (1995); Robin Munro. Rough Justice in Beijing. Punishing the
"Black Hands" of Tiananmen Square, I UCLA PACIFIC BASIN L. J. 77 (1991); Carlos W. H. Lo,
Criminal Justice Reform in Post-Crisis China: A Human Rights Perspective, 27 HONG KONG L. J.
90 (1997).



COLUMBIA JOURNAL OFASIANLAW

But what sort of law are we talking about? This article argues that
legal reform in China has to be seen within the context of a specific
tradition of socialist law, developed originally in the Soviet Union. Of
course, in many ways Deng moved away from a "Soviet model". He
insisted that socialism (and almost everything else) had to be built with
"Chinese characteristics". That did not mean that the Soviet-inspired
socialist legal framework was to be abandoned. Its "socialist" content,
however, had to be adapted to the thesis that China was in "the preliminary
stage of socialism". That "preliminary stage" was to allow for a substantial
commodity economy and an open-door economic policy. The market
economy, justified by that formula, demanded forms of legal regulation
unknown in the old planned and closed economy in which public
ownership dominated. The Chinese approach has been very inventive.

Before we consider that inventive approach, let us consider the broad
contours of the tradition of "socialist law". The "socialist theory of law"
owes its origin to Vyshinsky, following Stalin's rejection of the notion that
law and socialism were incompatible,2 which had been articulated in the
"commodity exchange school" represented by Pashukanis.3 The socialist
theory was strictly formulated to legitimate law in the socialist regime by
bending elements of Marxist critical theory to serve an ideological
purpose. It affirmed the positive value of law in "socialist transition" with
the focus on differentiating socialist law from "bourgeois" law. Socialist
law was seen not as a further development of bourgeois law, but as a new

2. See J.V. Stalin, Report to the XVIII Party Congress, in SOviET LEGAL PHILOSOPHY 347
(Hugh W. Babb trans., Harvard Univ. Press 1951).

3. Before completely subjugating law to politics in the 1930s, Soviet theorists had attempted to
develop what they considered to be "Marxist" law into a coherent critical theory. The views put forward
were Marxist in the sense that they conformed to Marx's "base" and "superstructure" metaphor, his
discussions on the relationship of law and ideology and his stress on the class character of law. At first
theorists argued that law and socialism were incompatible. Such a thesis underpinned the critical theories
of Stuchka, Reisner and Pashukanis, the most celebrated jurists of the time. Their point of view that "law
was a bourgeois category that regulated relationships between isolated individuals in the process of
commodity exchange" later became known as the "commodity exchange theory". Taking an economic
reductionist position, such theorists argued that, since a commodity economy was the essential material
condition for law, law would cease to exist as that commodity economy withered away. Since law was
class-bound and conflict-ridden, Marxist theory precluded any idea of "socialist" (or proletarian) law.
Meanwhile, law in the transition period, while a commodity economy still existed, was only a continuation
of "bourgeois law". Above all, their obsession with "legal fetishism" prevented them from thinking about
the necessity of law in a post-capitalist society. See generally P.I. Stuchka, The Revolutionary Part Played
by Law and State - A General Doctrine of Law, in SOVIET LEGAL PHILOSOPHY, supra note 2, at 40; M.A.
Reisner, Law, Our Law, Foreign Law, General Law, in SovIET LEGAL PHILOSOPHY, supra note 2, at 7 1-
109; E.B. Pashukanis, LAW AND MARXISM: A GENERAL THEORY (1981).

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SOCIALIST LEGAL THEORY IN DENG'S CHINA

type of law which had grown out of the socialist revolution of the
proletariat.

4

The socialist theory was formulated on the basis of Stalin's
instrumental approach. Law in socialist society was held to be the
instrument of the state for the elimination of all capitalist residues, for the
defense and the development of the socialist economy, and ultimately for
the realization of communism5 Vyshinsky's theory held that socialist legal
theory should specify the tasks and social functions of socialist law, its
nature, its content and form as well as the condition for its withering
away.6 As for a general theory, it should cover the origins, development
and the future of law in human societies. Within that model, Soviet jurists
wrestled with the nature of law and its origins, the proper relationship
between law and the economic base and the methodology of Marxist
jurisprudence.

7

The socialist theory was Marxist in the sense that it stressed the
indissoluble link between the state and law, both historically and
functionally. Law was conditioned by the state and had to be defined by
reference to the state. It took on a political complexion; and legal theorists
always had to refer to political theory, or more particularly to ideology.
Socialist theory, therefore, was positivistic, seeing law as being laid down
by the state and geared to serve the interests of the state until communism
saw the state transcended. Its uniqueness, as summed up by Tay and
Kamenka, lay in the "extra-legal presupposition about the nature and the
function of law in the economic context, and in the rejection of law as
independent of the state in practice".8

Has the wide adoption of market-oriented legislation based on
Western models, particularly for the purpose of developing a "socialist
market economy" under Jiang Zemin's leadership, made the socialist

4. S. A. Golunsky and M. S. Strogovich, The Theory of the State and Law. in SOVIETLEGAL
PHILOSOPHY, supra note 2, at 386.

5. See A. Y. Vyshinsky, The Fundamental Tasks of the Science of Soviet Socialist Law, in
SoviEr LEGAL PHILOSOPHY, supra note 2. at 308-9.

6. See A. Y. Vyshinsky, THE LAW OFTHE SOVIET STATE49-52 (1948).
7. See generally L.S.Jawitsch,THEGENERALTHEORY OFLAW 1-168 (1981). For discussion

of the Soviet debate, see Sun Guohua, Yijiao zhe xuyan [Foreword by the Translator and Proof-
reader], in FADEYIBANLILUN [THEGENERALTHEORYOFLAW] 1-10 (Zhu Jingwen trans., Liaoning
Renmin Chubanshe 1986).

8. A. Erh-Soon Tay & E. Kamenka. Marxism. Socialism and the Theory ofLaw, 28 COLIJ, .
J. TRANSNAT'L L. 244 n. 23 (1985). Such a conclusion is drawn mainly from the studies of Hazard
on Soviet law. See generally J. HAZARD, COMMUNISTS AND THEIR LAW: ASEARCH FORACO ION
CORE OFTHE LEGAL SYSTEM OFTHE MARXIAN SOCIALIST STATES (1961) and MANAGING CHANGE

IN THE USSR: THE POLmCO-LEGAL ROLE OF THE SOvIErJURisT (1983).

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COLUMBIA JOURNAL OF ASIA N LA W

perspective obsolete? It seems both rash and simplistic to conclude that
such a move has fundamentally changed the philosophical basis of the
Chinese legal system. Western observers who have stopped paying
attention to the continuing influence of the "socialist theory of law", simply
because the Soviet Union has collapsed, may not be seeing the entire
picture of legal reform in China. When considering China, one cannot
overstate the ideological significance of the non-state sector. Nor should
one overlook the fact that a definition of"socialist market economy" is still
bent in the direction of the old statist teleology. As Gelatt notes, foreign
legal concepts and traditions have been adapted within a broader
framework of Marxian rule and have been accommodated to the basic
principles of socialism. "The PRC leadership has never indicated an
intention to use law in a way that would alter China's political or
ideological foundations or 'basis'".9 One should note, moreover, that while
some law (criminal and administrative) enjoys a little autonomy from
politics, economic law is much less autonomous and is not regarded as
"mainstream". That will surely continue to be the case so long as the
importance of public ownership retains its ideological dominance.

The tradition of "socialist law", therefore, remains important, and we
must be careful not to negate Chinese socialist law in the name of Western
legal theory, as warned by Lubman in reviewing the study of Chinese law
in the United States: "[b]oth extreme cultural relativism and insistence on
intellectual categories derived from Western legal systems have threatened
to skew study (of Chinese legal system), with the latter trend more evident
in recent years".' °

This article discusses the evolution of socialist legal theory in China
and in particular the changes resulting from Deng Xiaoping's reforms.
While the old framework of socialist law remains, law has developed
beyond crude Soviet instrumentalism. The subtlety of law's regulative
function is now appreciated, and the way is open for seeing the relationship
between the rule of law and democracy. This article will contrast Deng's
approach to law with that of Mao Zedong. It will consider whether Deng
laid down the basis for a uniquely Chinese legal theory in the context of
Marxist jurisprudence. Finally, it will explore the future of Chinese
socialist law under the leadership of Jiang Zemin.

9. See Timothy Gelatt, Law Reform in the PRC after June 4, 3 J. CHINESE L. 318 (1989).
10. Stanley Lubman, Studying Contemporary Chinese Law: Limits, Possibilities and Strategy,

39 AM. J. CoMP. L. 294,326(1991).

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SOCIALIST LEGAL THEORY IN DENG'S CHINA

II. SOCIALIST LAW IN CHINA

A. Mao's View

We have noted that the Chinese legal system, though deeply
influenced by the former Soviet Union," was by no means a slave to
Soviet formulae. The Chinese Communist Party was relatively free in
formulating its own theory of law within the framework of Marxism-
Leninism. 2 Mao, in fact, constantly challenged the positivistic notion of
law inherited from the Soviet Union. By the mid-1950s, he had refused to
conceal his dislike of the formal Soviet legal system; and that, amongst
other things, informed the Sino-Soviet ideological split. Mao's hostility to
formal law derived from his "philosophy of struggle", deeply affected by
Marx's and Lenin's revolutionary theory:

The state apparatus, including the army, the police, and the
courts, is the instrument by which one class oppresses
another. It is an instrument for the oppression of antagonistic
classes; it is violence and not "benevolence".' 3

For Mao, law acted to restrict class struggle and a formal legal system
could not adapt to rapidly changing revolutionary conditions. Thus, Mao
persistently opposed the introduction of a purely legal order. From his class
perspective, proletarian justice in socialist society demanded rejecting
"bourgeois right", expressed in the principle of "all being equal before the
law".'4 Mao's conception of law subsumed legal order and justice under a

11. See Richard Baum, Modernization and Legal Reform in Post-Mao China: The Rebirth of
Socialist Legality, 2 STUDIES IN COMP. COMMUNISM 76,76-77 (1986).

12. See JEROMECOHEN,THECRIMINALPROCESSINTHE PEOFLE'SREPUBUCOFCHiNA. 1949-
63: AN INTRODUCTION 71 (1968); see also Victor H. Li, The Evolution and Development of the
Chinese Legal System, in CHINA: MANAGEMENT OF A REVOLUTIONARY SOCIETY 255 (John M. H.
Lindbeck ed., George Allen and Unwin Ltd. 1972).

13. MaoZedong, OnPeople'sDemocraticDictatorship. in 4 SELECTED WORKS OF MAOTSE-

TUNG 418 (1977).

14. The rationale for class justice is enshrined in Article 43 of the "Statute of the Chinese

Soviet Republic Governing the Punishment of Counter-revolutionaries" (1934) which provided
lighter penalties for crimes committed by workers and peasants. The provision reads:"workers and
peasants who commit an offence but are not leaders or major offenders may have their punishment
reduced from that stipulated in the various articles of this statute regarding elements from the
landlords and bourgeoisie who commit the same class of offence." Quoted in CARLOS W.H. Lo,The
Legal System and Criminal Responsibility of Intellectuals in the People's Republic of China 1949-

82, 2OCCASIONALPAPERSIREPRINTS SERIES IN CONTEPORARY AS IAN STUDIES. No. 83 (1985).This
tradition of "proletarianjustice" continued in the principle of the "dictatorship of the proletariat" and
later more explicitly in Mao's distinction between two categories of contradiction after the
communist regime was established in 1949. See Mao Zedong, On the Correct Handling of
Contradictions Among the People, 5 SELECTED WORKS OF MAO TSE-TUNG 384-421 (1977). For a
discussion on justice under Mao, see Lo, The Legal System and Criminal Responsibility of

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broader framework of politics and ideology: law was simply an instrument
to be wielded by the Party in fostering class struggle and socialist
transition.

Law, defined as an instrument of class struggle, was to be
implemented not so much by formal judicial organs as by mass
participation in political campaigns and mass movements.15 Mao put strong
emphasis on its educational function in inculcating the masses with
communist ethics.' 6 Of course, Soviet law did that too,' 7 but Mao's
emphases were different. Mao's ideal (communist) society was based on
his particular vision of communist ethics which had to be achieved here
and now and could not be postponed until a communist society rendered
law unnecessary. 18 As communist ethics developed, law lost its authority.
And that was nowhere more the case than when Mao's frustration with the
slowness of the Soviet model led to his ideas on "uninterrupted revolution"
in 1957. The result was the Anti-rightist Movement and the Great Leap
Forward where "politics took command" and the value of law was negated.
Eventually Mao declared that law was useless.' 9

B. Conceptions of Law under Deng Xiaoping

Unlike that of Mao, Deng Xiaoping's approach towards law was
pragmatic. Drawn largely from his bitter political experiences, Deng's
conception of law was geared to practical goals. After resuming leadership
in late 1978, Deng developed policies geared to rebuilding and
strengthening the Chinese legal system. As we have noted, he saw law as
necessary to maintain social order for socialist modernization. Putting
forward the slogan "develop Marxist ideology under the new historical

Intellectuals, op. cit, at 83-84.
15. See generally JAMES P. BRADY, JUSTICEAND POLITICS IN PEOPLE'S CHINA: LEGAL ORDER

OR CONTINUING REVOLUTION? (1982).
16. For discussion of the educational function oflaw in Mao"s conception of the legal system.

see LO, supra note 14, at 6-10.
17. The educational function of Soviet law was stressed by Vyshinsky, Golunsky, Strogovich

and Chkhikvadze. See generally Vyshinsky, supra note 5; Golunsky and Strogovich, supra note 4;
Article 3 of the "Law Concerning the Judicial System of the U.S.S.R. and the Union and
Autonomous Republics" (1938) prescribes that "the court in all its activities is educating Soviet
citizens in a spirit of devotion to their fatherland and to the cause of socialism; it is unswervingly
precise in carrying out Soviet laws- care for socialist property, labor discipline, an honorable attitude
towards the state and social duty, and respect for the rules of all socialist life.") from D. A. Funk,
Lesson of Soviet Jurisprudence: LawforSocial Change Versus Individual Rights, 7 IND. L. REV. 466
(1974) (quote amended for stylistic reasons). For detailed discussion, see id. at 466-72.

18. For a clearer picture of Mao's vision of the ideal society, see LO, supra note 14, at 24.
See also BRADY, supra note 15.

19. SHAO-CHUANLENGAND HUNGDAH CHIU, CRIMINAL JUSTICE IN POST-MAO CHINA:
ANALYSIS AND DOCUMENTS 16-17 (State University of New York Press 1985)

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SOCIALIST LEGAL THEORYINDENG'S CHINA

conditions of China",20 Deng did not return to all features of the Soviet
model but insisted on searching for a "Chinese" path to the development
of a socialist legal theory. His aim was to free China from the constraints
of both Soviet ideas and Mao's theory of the state and law but he retained
some basic features of the old socialist ideology. His insistence in 1979 on
the "four cardinal principles" - the socialist road, the dictatorship of the
proletariat, the leadership of the Party, and Marxism-Leninism and Mao
Zedong Thought - makes that clear.

Deng's approach was incremental. While proclaiming unswerving
adherence to his "four cardinal principles", he nevertheless affirmed the
fundamental role of legal institutions in socialist society. But Deng did not
see that approach as contradictory. Here he distinguished between ideology
and political practice. Ideology was the source of the Communist Party's
legitimacy to rule. The "four cardinal principles" were the foundation of
that ideology. In practice, however, they should not be seen as extra-legal
and should appear in legal form if they were to be accorded supreme
authority. Deng had no doubt "law was the highest authority".2'

As Deng saw it, if one was single-mindedly to pursue the goal of
socialist modernization, what had become known as the "rule of persons"
had to be replaced by the "rule of law". Here Deng's position was clear-cut.
He bluntly opposed the "rule of persons": "Very often, what leaders say is
taken to be the law and anyone who disagrees is called a law-breaker. Such
law changes whenever a leader's views change".2 That approach should be
eradicated!

Deng's pragmatic leadership style resulted in action-driven legal
principles, notjust ideological maxims. Insisting on the slogan "there must
be laws for people to follow", Deng demanded the completion of legal
codes. His second slogan was that "those laws must be observed". Third,
he demanded that "law breakers must be dealt with accordingly", and
fourth that "law enforcement must be strict". Finally, he maintained that all
were "equal before the law".2- Those practical principles provided
workable, simple and straightforward guidelines for legal reform. Of the
five principles, Deng was particularly concerned with those dealing with
the observance and implementation of law. The criteria for evaluating law
and the legal system were its ability to improve people's material life, to

20. See e.g., DengXiaoping, Opening Speech, in THETWELFIH NATIONALCONGRESS OFTHE
C.C.P. 3 (Foreign Languages Press 1982).

21. Deng Xiaoping, Implement the Policy of Readjustment, Ensure Stability and Unity. 25
December 1980, in SELECTED WORKS OF DENG XIAOPING (1975-1982) 339 (Foreign Languages
Press, 1984).

22. Deng Xiaoping, Emancipate the Mind Seek Truth from Facts and Unite as One in
Looking to the Future, 13 December 1978, in SELECTED VORKS OF DENG XIAOpING (1975-1982).
supra note 21, at 157-58.

23. See Carlos W. H. Lo, Deng Xiaoping's Ideas on Law. China on the Threshold of a Legal
Order, ASIAN SURV., July 1992, at 649-65.

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foster "spiritual civilization" in the socio-cultural area and to promote
democracy in the political realm.24 Yet, in the absence of a coherent
theoretical formulation, Deng's random views could be bent in the
direction of expediency, especially when one came to consider the
relationship of the Party to the law and the relation of law to democracy.

For Deng, it was best that the development of the legal system and
democracy proceed gradually in a manner corresponding to economic
progress. Although believing that Party interventions in that process should
be minimized, Deng regarded some degree of Party direction and
supervision as essential if chaos was to be prevented. The denunciation of
the "rule of persons" was intended to remind Party cadres to exercise their
leadership role within the boundaries permitted by law. Even class struggle
(so much as it still existed) had to be geared to legal order and to be
handled by the legal system. Above all, the core of Deng's legal ideas
rested on his practical principles which were taken as legal maxims by the
regime. His vision of Chinese society was legally-regulated, with socialist
democracy as the political foundation. Yet Deng acknowledged that it
would take a long time to achieve that goal. To make the legal order work,
Deng saw it as vital to raise the level of the nation's legal consciousness.
Education was the appropriate means to produce a large pool of qualified
legal professionals to operate the legal order. In short, "political stability
and social unity" should be the over-riding concern within the overall
policy of "promoting democracy and strengthening the legal system".

III. TOWARD A CHINESE SOCIALIST THEORY OF LAW

The above approach was eclectic. It was clear enough that Deng did
not have, and never had, a coherent theory of law; he merely had some
preliminary ideas on the orientation of law when he put forward the legal
reform proposals after the Third Plenum in 1978. And yet his ideas on law
had unparalleled significance in Chinese history due to the fact that he
provided a leadership which understood the positive value of law and
which brought to an end the legal nihilism enshrined in Mao's legal
thought. His conception of law had gone beyond the narrow Soviet
instrumentalist justification of Party rule and had advanced towards a basis
for criticizing arbitrariness. He had come to realize that the repressive
function of law should be seen in terms of a notion of public order much
deeper than simply eliminating enemies of the revolution. Deng believed
that legal regulation was important to socialist modernization and opening
up China to the rest of the world. However imperfectly, Deng's view of law

24. Deng Xiaoping, On the Reform of the System of Party and State, 18 August 1980, in
SELECTED WORKS OF DENG XIAOPING (1975-1982), supra note 21, at 304-9.

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had begun to comprehend the importance of a democratic setting to
safeguard people's political rights against arbitrary rule and bureaucratism.
It understood law's highest authority and its universality both in
formulation and in application. Such was to be the basis of a new theory
of socialist law.

But the implementation of law was constrained. Ideologically Deng's
"four cardinal principles" set the boundaries. The term "socialist road"
referred to maintaining a dominant planned economy, supplemented by a
limited market economy. The "dictatorship of theproletariat", now defined
more loosely than hitherto as much the same as "people's democratic
dictatorship", could allow for a degree of democracy based on a
comprehensive legal system. Party leadership, moreover, was tempered by
the expressed need for public supervision. Finally, "Mao Zedong thought",
in its new formulation, demanded that one concentrate on the practicality
of Marxism in tackling the realties of China.2 On the one hand, the "four
cardinal principles" were designed to provide an ideological safeguard
against the possibility that emancipating the mind from dogmatism could
lead to the negation of Marxism. On the other hand, the fact that they were
interpreted as living anti-dogmatic principles offered much hope for
emancipation. As one might expect, there was much debate on how to
uphold them, particularly in light of the injunction to "build socialism with
Chinese characteristics" and its application to law.

First priority was given to preserving social order. Second came the
development of the socialist economy, and third was the promotion of
democracy within a framework of political stability. Since the Party under
Deng saw law as a function of socialism, the more liberal the vision of
socialism (such as in Zhao Ziyang's "preliminary stage", and most recently
in Jiang Zemin's "socialist market economy"), the more the scope of law
was broadened. Conversely, the more conservative the notion of socialism
(such as that held by Li Peng and some veterans), the more narrow the
jurisdiction of law would be.

Chinese jurists assumed the task of constructing a new theory of law,
upon which the Chinese legal system could be based. Inspired by Deng's
desire to create a socialist legal order, progressive Chinese jurists began to
review critically the Vyshinsky-style Soviet legal theory with a view to
going beyond narrow instrumentalism. In an unprecedentedly relaxed

25. SeeRESOLUTIONONC.C.P.HISTORY76-83 (Foreign Languages Press 1981). For the main
features of the policy-line adopted by the Eighth Party Congress, see ZHON.GtO GONGCHANDANG
LIucI QUANGUO DAIBIAODAHUI ZHONGYAO HumLnI (II) [COLLECTIONOFIMPFORTANTDOCUINTS
OF ALL FORMER NATIONAL CONGRESSES OF THE COMMUNIST PARTY OF CHINA, PART 11] 74-81
(Renmin Chubanshe, 1983). For details, see generally EIGHTH NATIONALPARTY CONGRESS OFTHE
COMMUNIST PARTY OF CHINA (DoCuMENTS) (Foreign Languages Press, 1981). See also Dzng
Xiaoping, Uphold the Four Cardinal Principles, 30 March 1979, in SELECTED WORKS OF DENG
XIAOPING (1975-1982), supra note 21, at 171-86.

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atmosphere they held protracted debates. But those debates were far from
adventurous and remained within official parameters specified by Deng's
"four cardinal principles". In a pragmatic atmosphere jurists felt that their
best strategy was not to provoke leaders by pushing too far ideas about
democracy but instead to show that the de-politicization of law yielded
concrete benefits. All understood that the dictatorial nature of the regime
and socialist legality could best be achieved without challenging the
official ideology. Nevertheless there were some telling gains, as described
below.

Jurists did much to discredit pure instrumentalism and, reversing the
mode of thinking dominant in the 1960s, overturned ideas about the
primacy of the "rule of persons" in favor of the "rule of law".26 They
refuted the former concept, which dated from long before Vyshinsky, and
stressed the incompatibility of formal law and socialism by referencing to
later attempts to place law in a "socialist" context. Jurists made much of
the out-dated nature of traditional Marxist legal studies2 7 and their inability
to offer an adequate explanation of socialist law in a situation where class
confrontation had "basically come to an end".28 They went on to launch an
unprecedented challenge to ideas about the "class nature of law" and to
advocate radical ideas about the "social nature of law".29 Increasingly one
saw jurists attempting to persuade orthodox Marxists that law could be de-
politicized by reference to current Chinese social and economic realities
under the rubric of a "socialist legal system" and a "socialist system of
legal studies with Chinese characteristics".30 The aim was to create a new
legal "ideal-type".

No new comprehensive theory resulted, yet in the rejection of ideas
about the class nature of law one saw rationales for future theoretical
developments. Some progressive scholars such as Wu Shihuan, Wan Bin
and Zhang Zhonghou, in groping for a Chinese "socialist theory of law"
and fighting legal nihilism, took the first step in what may become a new
comprehensive structure. Wu Shihuan, ajurist from Zhongshan University,
was emphatic that one should break away from the idea of "taking class

26. For the most comprehensive discussion in this respect, see Yu Haozheng, Renshi Yu Fazhi
Wenti De Taolun Yao Shenmo Xianshi Yiyi? [What are the Practical Implications of the Discussion
on the Question of "Rule of Persons" and "Rule of Law', 7 MINZHU Yu FAZHi [DEMOCRACY AND
THE LEGAL SYSTEM] 8 (1980).

27. Xia Zhi, Dui Makesizhuyi Faxue Tifa De Shangque [Questioning the Formulation of
Marxist Jurisprudence], I FAXUE [LEGAL STUDIES] 8 (1987).

28. Zhang Zhonghou, Dui Fa De Sange Jiben Gainian De Zhiyi [Queries on Three
Fundamental Concepts of Law], I FAXUE [LEGAL STUDIES] 4 (1986).

29. Zhou Fengju, Fa Shi Danchun De Douzheng Gongju Ma [Is Law Purely an Instrument
for Class Struggle?], 1 FAXUE YANJIU [LEGAL RESEARCH] 37 (1980).

30. Guanyu Jiaqiang Faxue Jiben Lilun Yanjiu De Changyi (Proposals for Strengthening
Research on the Basic Theory of Law], 11 FAXUE [LEGAL STUDIES] 2 (1982).

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struggle as the key link".3' Wan Bin, a liberal jurist from Shanghai, argued
strongly that Marx and Engels had never built up a coherent theory of law
and that the traditional Marxist theoretical system of law as propounded in
China was strictly an invention of Soviet jurists. 2 The leading figure of
this new wave of thought was perhaps Zhang Zhonghou, visiting professor
at the Jilin University Law School, who, by denouncing the idea that "class
nature is the unique property of law", argued that the traditional theory of
legal studies ought to be thoroughly "rejuvenated".3  Indeed, all
progressive scholars insisted that law was determined by "objective
regularities" of social development and not by class struggle? 4 Zhang was
the most thorough. In rejecting class as the sole determinant of law, he
argued that class nature was a product of social nature. The essential
properties of law were social, coercive and normative - none of which
could be reduced simply to class. 35 This resulted in the view that while
class struggle was transient, social regulation would last forever. Those
reforming endeavors ended with the abandonment of a Vyshinsky-type
socialist theory of law and simple economic reductionism in favor of law
and legal studies "with Chinese characteristics".

With the triumph of progressive scholars over the conservativejurists
concerning the manner in which China should be governed after 1982, the
orientation of a new approach to law was set. The dominance of
progressive thinking on law in Chinese jurisprudential circles since then
has provided a theoretical basis forjurists to develop China's own "socialist
theory of law". Many advocates of that theory argued that the philosophical
basis for the socialist theory should rest on Marx's own ideas on law rather
than on the Soviet tradition. These boiled down to a methodological
injunction to start from the economic and social realities of present day
China. To many, it appeared obvious that (given the transition to
socialism) law was socially determined and no longer class determined,
and that the essential properties of law were social, coercive and normative
- none of which could be reduced simply to class. Since law had a social

31. Wu Shihuan, Faxue Yeyao Tupo Yi Jieji Douzheng Wei Gang DeMoshi [Jurisprudence
Should Also Break Away from the Model of Taking Class Struggle as the Key Link]. 8 SHEHUI
KEXUE PINGLUN [DISCUSSIONS ON THE SOCIAL ScIENcES] 73 (1985).

32. Wan Bin, Chuantong Faxue De Gaige Yu Makesihulizhuyi Faxue De Fazhan (The Reform
of Traditional Jurisprudence and the Development of Marxist Jurisprudence], 4 SHEHUi KEXUE
[SOCIAL SCIENCES] 6 (1986).

33. Faxue Lilun Yao Gengxin - Ji Zhang Youyu He Ziang Zhonghou De Nxri Tan (Theories
of Jurisprudence Need to Be Renewed - The Record of the Discussion Between Zhang Youyu and
Zhang Zhonghou], RENMIN RIBAO [PEOPLE'S DAILY], Mar. 31, 1986. at 5.

34. Zhongguo Faxue Hui Faxue Jichu Lilun Yanjiu Hui Chengli Dahui Congshu [Summary
of the General Meeting on the Establishment of the Research Institute of the Basic Theories of
Jurisprudence of the Society for Chinese Jurisprudence], 3 ZHONGGUO FAXUE [LEGALSTUDIES OF
CHINA] 57 (1985).

35. Guanyu Fa De Benzhi He Zuoyong [On the Nature and Function of Law], ZHo.xcGt'o
FAZHI BAO [NEWSPAPER OF THE CHINESE LEGAL SYSTEM], Oct. 31. 1986, at 3.

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COLUMBIA JOURNAL OFASIANLAW

rather than a class character, it should be a social regulator instead of an
instrument of class struggle.36 In socialist society, all people should be
(and, in contrast to the situation in "bourgeois society", in reality could be)
equal before the law. Consider Zhang Zhonghou's definition of the
changed nature of law in socialist society:

Law is the aggregate of rules of conduct, made and confirmed
by the state or other organs of social management, the
application of which is safeguarded by the coercive force of
the state or these social organs to regulate social and people's
relationships. In a society characterized by class conflict, law
possesses a distinct class nature, expressing the will of the
ruling class. In societies characterized by class harmony, law
performs mostly the functions of co-ordinating economic
relationships and regulating human relationships. In classless
society, law's instrumental function in class struggle will
vanish and law will turn completely to perform the task of
social management:

The liberal discussions of law in Chinese jurisprudential circles
revealed gaps between the expectations of officials and intellectuals. After
1982, the Party leadership, adopting a very favorable attitude towards law,
regarded it as an effective means by which to implement its reform
program. An instrumentalist view still prevailed but there had been a
change in the end which the instrument was to serve. Gradually to install
a comprehensive legal order in China was seen as serving the Party's views
on economic reform and preserving Party rule. But that kind of
instrumentalist end implied an increasingly salient non-instrumentalist way
of thinking. Once Party rule was constrained to rule through law, de-
politicization grew apace. Understanding the implications, scholars
welcomed the Party's position. Yet there remained major differences in
officials' and scholars' interpretation of the application of the "rule of law".

Put bluntly, the real relationship of the Party to law was central.
When one considers that "leadership by the Party" was the first of Deng's
"four cardinal principles", one has to explore the Party's real relationship
to law. What had changed? Clearly there had been a move from the
situation in Mao's era where the Party had enjoyed absolute leadership over
the judiciary. Party policy at that time had been described as the "soul" of

36. See Carlos W. H. Lo, Rejecting the Socialist Theory of Law: Reforming Chinese Legal
Studies in the 1980s, 7 CHINA INFORMATION 1 (1992).

37. Guanyu Fa De Benzhi He Zuoyong, supra note 35, at 3.

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SOCIALIST LEGAL THEORY IN DENG'S CHINA

the people's democratic legal system and had a status higher than law3 s

After the Third Plenum in 1978, that attitude began to change. Since Deng
Xiaoping held that "law was the highest authority", his "four cardinal
principles" had to appear in legal form (as noted above); but it was not
always clear just what that implied. Party leaders were unequivocal in
claiming the Party and its cadres were no longer above the law in routine
operations - a rejection of the old view that "Party policy was the soul of
law". Leaders such as Peng Zhen spoke of a harmonious relationship
between law and Party policy, since both represented the "will of the ruling
class"; and that view was strongly promoted after 1984. Law and Party
policy were held not to be substitutable, since they performed different
roles in achieving Party objectives. Law, moreover, could only be amended
in accordance with Party policy by prescribed legal procedures. There were
enough contradictions in that formulation to cause much confusion.

The Party's approach here was ambivalent and often muddled. One
was not always clear about the exact meaning of law being "supreme" (or
the highest authority) in a "socialist" context, since the Party had
consistently rejected what it considered to be the Western "bourgeois"
notion of "the supremacy of law".3 9 If law were genuinely supreme, the
Party was subordinate to law and under the supervision of the judiciary
instead of vice versa. That was a question of subordination of the Party, not
one of a harmonious relationship. In any case, talk of a harmonious
relationship was idealistic; law and policy would inevitably clash, as they
did in all countries. The point was not to extol harmony but to specify
supra-political mechanisms for conflict-resolution. Note also that while the
Party talked of the primacy of law, the phrase "leadership of the Party" was
inserted into the "Preamble" of the 1982 Constitution. The highest law in
the land was formally subordinated to a political party; the Constitution
which allowed for political manipulation. Clarity was sorely needed; but
clarity was too dangerous and might impair legitimacy.

While Party spokespersons were muddled, many of the legal scholars
could be more consistent. Any policy which conflicted with law, they felt,
should be void. Nevertheless, it was usually much too dangerous to
challenge the principle of Party leadership in the name of legality. Often
lip-service was paid to Party leadership or the issue explicitly avoided,
while scholars concentrated on the issue of judicial independence and
independent administration of law. Some, however, were quite explicit in

38. Li Shiwen, Ba Youpai Sufan Weifa De Fanlun (The Rebuttal of the Rightist Fallacy on
the Liquidation of Counter-revolutionaries], ZHENGFA YANJIU (STUDIES IN POLITICS AND LAW].
1957, at 33. See also On the People's Democratic Dictatorship and the People's Democratic Legal
System CHINESE L. & GOv'T, Summer 1968, at 4.

39. The Party's ambiguous attitude toward the proper relationship between Party policy and
law manifests a rejection of the notion of "the supremacy of law."

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COLUMBIA JOURNAL OF ASIAN LA W

examining the practical implications of the "supremacy of law" after 1983.
Law as the expression of the will of the people, they felt, should command
the Party.

IV. THE FUTURE OF CHINESE SOCIALIST LAW

Many observers have concluded that the intellectual debate on legal
questions has been overly abstract. Such a viewpoint, which demands
practical guidelines for the judicial system, coincides with the Party stance
that "legal studies in China lag far behind legal practice", misreads the
implications of the debate on law in post-Mao China. It has been
instructive to study how jurists may work on technical aspects of criminal
justice without a clear vision of socialist legal order. But they grope for
one. Unlike the West or even the former Soviet Union, law is still in a
confused state and is full of conceptual uncertainties; legal studies are in
complete turmoil. But the scope of legal reform has gradually been
appreciated and crucial questions have emerged.

What sort of legal order does the Party intend to create? What
purposes are served by establishing a legal system? What is the status of
that legal system in socialist society ideologically and practically? What
is the proper relationship between law and politics? What is the
relationship of law to Party policy? To what extent should law protect
people's democratic rights? Finally, what is to be pursued in criminal
justice- formal justice or class justice? All of these questions determine the
nature of the legal system to be installed in China and, in turn, dictate the
direction of legal reform, the legal system and the legal values with which
the people are to be inculcated. Searching for answers to those questions,
scholars aim to provide a solid foundation for the structural framework of
legal studies in China. In short, without clear ideas about a socialist legal
system, Chinese jurisprudence can have no long-term goals.

But there is reason for optimism. Belief in law is now seen as positive
rather than negative in socialist society. This development is similar to
occurrences in the post-Stalinist Soviet Union. Breakthroughs in Soviet
legal development came mainly from intellectual efforts. Despite the
poverty of legal practice in the Stalinist era, Soviet jurists explored the
nature of socialist law deeply enough to formulate a legal vision clear
enough to guide the development of law. Thus the former Soviet Union
could embark on sweeping legal reforms after Khrushchev. Much can be
learned from Soviet experience. After all, Leninist hostility to law was
replaced by a positive assessment. That was the spirit in which Chinese
scholars tried to forge a "socialist legal system" in the early years of legal
reform. Although discussions were contained within an old framework of
"socialist law", discarding taboos led to considerations of the "heritability
of law" and the extent to which Chinese scholars might learn from Western

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SOCIALIST LEGAL THEORYIN DENG'S CHINA

experience.
More significantly a comprehensive review of "Marxist

jurisprudence" led to re-organization of the entire discipline of legal
studies. Revival of legal studies determined the professional values and
morality of legal professionals. Legal education, so important for
socialization, was essential to transform the legal values of an entire
population in the long-run. But the Party still rules. Scholars propose, but
the Party disposes. Yet the Party is poorly-equipped in knowledge of law.
Once it had decided whole-heartedly to establish a comprehensive socialist
legal order, it required the services of jurisprudential circles. Its control is
limited. Suffice it to say that the extent to which Chinese jurisprudential
circles can exercise tutelage depends on the Party's commitment to
transforming China from a police state to a legal society. China's quest for
a socialist market economy under Jiang's leadership has raised our hopes.

But one should remember the circumstances under which Jiang came
to power - the crackdown of 1989. After that crackdown one heard a
reaffirmation of the need for more traditional Marxist legal studies' and
a reaffirmation of a class-centered approach4 held sway for a time. But
one still heard the voices of progressives,42 and conservatives were
cautious.43 Scholars still refused to take Marxist theory as dogma and

40. A handful of articles and speeches re-asserting the theme of taking Marxism as the proper
perspective in conducting legal studies appeared between August 1989 and 1991. The most
significant ones are: Zai Falu Xue Lingyu Jianchi Makesizhuyi [Upholding Marxism in the Realm
of Legal Studies], ZHONGGUO FAXUE [CHINESE LEGAL STUDIES], Sept. 1989, at 121-23; Zhang
Youyu, Woguo Faxue Bixu Yi Makesizhuyi Faxue Wei 7hidao [Chinese Legal Studies Must Be
Guided By Marxism), QIUSHI [SEEKING THE TRUTH], Apr. 1990. at 14-20. As for speeches, see
Zhang Youyu, Tantan Faxue Yanjiu Lilun [Talks on the Studies ofJurisprudence, FAXUETIANDI
[FORUM FOR LEGAL STUDIES], Feb. 1991, at 1-3; Chen Pixian, Faxue Yanjiu Bixu Jianchi
Makesizhuvi Zhidao [Legal Studies Must Uphold the Guidance of Marxism], FAZHI RIBAO [LEGAL
SYSTEm DAILY], May 29, 1991, at 1.

41. On the restoration of a class perspective of law in the wake of the "June Fourth" incident.
see Ji Xuedong, Guanyu Fa De Benzhi Shuxing De Jige Wenti (Certain Questions on the Essence
of Law], JIANGXI SHEHUI KEXUE [SOCIAL SCIENCES OF JIANGXI]. Feb. 1990. at 113-117; Zhou
Huiguo, Lun Falu De JiejiXing He ShehuiXing Zhi 7.heng [On the Contention Between the Class
Nature and Social Nature of Law], NANJING DAxUEXUEBAO [JOURNAL OF NANjING UNIVERSITY],
Apr. 1990, at 6-12; Wei Zailong, Lun Faxue De Yanjiu Fangfa [On the Research Method of Legal
Studies], 4 FAXUEPINGLUN [COMMENTARIES ON LEGAL STUDIES] 1(1991).

42.. For the latest discussions in this respect, see Yang Haikun, Zhongguo Shehuizhiyi Fazhi
De Lilun Yu Shijian [Theory and Practice of the Chinese Socialist Rule of Law], FAXUE YANuiU
[LEGALRESEARCH], Jan. 1991, at 9-14.

43. Such a sentiment was fully expressed by Sun Guohua, one of the most celebrated
conservatives from the Department of Law, People's University of China. See Sun Guohua. Guo
Huacheng, and Chen Guoqing, FaluXue Yanjiu Shinian [A Decade of Studies on Law], FALIJXUEXI
YU YANJIU [STUDYING AND RESEARCHING LAW], Feb. 1990, at 1-7. See also Guo Daohui, Yong
Makesizhuyi Zhexue Yanjiu Faxue (Employing Marxist Philosophy to Study Jurisprudence],
ZHONGWAI FAXUE [LEGAL STUDIES IN CHINA AND OTHER COUNTRIES]. Feb. 1992, at 45-61.

44. See You Junyi, Shi "Gengxin" Shi Fujiu? Xuexi Makesizhuyi Falu Guan De Yidian Tihui
["Reforming" or Restoring the Past? Some Insights Gained from the Study of the Marxist
Perspective of Law], SHEHUI KEXUE [SOCIALSCiENcES]. Apr. 1990, at 9-12; Liu Delin, Wu Yiping,

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COLUMBIA JOURNAL OF ASIAN LAW

persisted with the quest for a distinctively Chinese approach to law and
legal studies. 45 Eventually the importance of creativity in legal studies was
stressed.46 There was a new flourishing of creative debate, carrying on
where the debates of the 1980s had been truncated.4 7 All this was designed
to accommodate the idea of a "socialist market economy", which now
seems irreversible.

Jiang Zemin, in adopting the mantle of rule, seems to have emulated
Deng Xiaoping.49 He appears to have continued Deng's insistence on
market reform within a context of stability. He has reaffirmed commitment

Zhengque Lijie Makesizhuyi Faxue Sixiang [Correctly Understanding Marxist Legal Thought],
YANCHENGSHIZHUANXUEBAO, Apr. 1990, at 23-26; Zhang Wenxian, Ma Xinfu, Zheng Chengliang,
Xin ShiqiZhongguo Falu Xue De Fazhan Yu Fansi [Development and Reflections on Chinese Legal
Studies in the New Era], ZHONGGUOSHEHUI KEXUE [SOCIALSCIENCES IN CHINA], June 1991, at 167-
80.

45. For the latest review on this subject, see generally WANG YONGFEI & ZHANG GUICHENG,
ZHONGGUO FALU XUE YANJIU ZONGSHU YU PINGJIA [SUMMARY AND ASSESSMENT OF CHINESE
LEGAL STUDIES] (1992).

46. See Zheng Yongjiu, Chuangxin, Zhongguo Falu Xue De Genben Siwei [Creativity, the
Thought Underpinning Chinese Legal Studies], FAXUE [LEGAL STUDIES], July 1992, at 2. See also
his earlier article, Zheng Yongjiu, Falu Yu Fazhan - Jiushi Niandai Zhongguo Fa Zhexue De Xin
Guandian [Law and Development - New Ideas of Chinese Philosophy of Law in the Nineties],
ZHONGWAI FAXUE [LEGALSTUDIES IN CHINA AND OTHER COUNTRIES], Apr. 1992, at 5- 10; and more
recently Chen Zhen, Shi "Zhengque Yindu" Haishi Wudu [Is it a "Correct Guide" orAn Incorrect
One?], ZHONGGUO FAXUE [LEGAL STUDIES OF CHINA], May 1995, at 48-56; and Liu Chang,
Duoyuan Shidai Yu Duoyuan Faxue [An Era of Pluralism and Pluralism in Jurisprudence], XUEYU
TANTAO [STUDY AND EXPLORATION], Mar. 1995, at 96-100.

47. For the details of debates on law in the 1980's, see Lo, Rejecting the Traditional Socialist
Theory of Law, supra note 36. For a summary of latest developments, see Zhang Shaoyu, Falu Sue
Yaniu Zongshu [A Summary of Research in Legal Studies], FAXUE YANJIU [LEGAL RESEARCH AND
STUDIES ], Jan. 1995, at 3-8, and Li Lin, Zouxiang Ershiyi Shijt De Falu Xue [Toward the Legal
Studies of the Twenty First Century], ZHONGGUO FAXUE [LEGAL STUDIES OF CHINA], May 1995, at
122-24, and Falu Xue De Gaige Yu Fazhan [The Reform and Development of Legal Studies], FALU
KEXUE [LEGAL SCIENCE], Mar. 1995, at 3-18.

48. See, e.g. Sun Guohua, Zhu Jingwen, Dui "Falu Ying Yi Shehui Wei Jichu" Zhi Wojian [My
Personal Views on "Law Should Take Society as its Basis], FAXUE [LEGAL STUDIES], Nov. 1992, at
8-11; Liu Han, Xia Yong, Falu Xue Mianlin De Xin Keti (New Topics to Be Faced by Legal Studies],
FAXUE YANJIU [LEGALRESEARCH AND STUDIES ], Jan. 1993, at 3-11. For those dealing specifically
with the market economy, see in particular Shi Tong, Shichang Jingji Yu Falu Xiandaihua [Market
Economy and the Modernization ofLaw], FAXUE [LEGALSTUDIES],Jan. 1993, at 1-6; Fang Shirong,
Fazhi Yu Shichang Jingji Xiang Shiying De Ruogan Wenti Tantao [Inquiries on Cetain Issues
Concerning the Mutual Adjustment of the Legal System and the Market Economy], ZHONGNAN
ZHENGFA XUEYUAN XUEBAO [JOURNAL OF MIDDLE-SOUTH CHINA LAW AND POLITICAL SCIENCE
INSTITUTE ], Feb. 1993, at 1-5; Wang Shuwen, Lun Jianli You Zhongguo Tesi De Shehuizhuyi
Shichang Jingli Falu Tixi [On the Establishment of a System of Law with Chinese Characteristics
for the Socialist Market Economy], ZHENGFA LUNTAN [POLITICS AND LAW FORUM], Apr. 1995, at
7-11. For latest developments, see Qiu Chunlan, Shichang Jingji Yu FazhiJianshe Yanjiu Zongshu
[A Summary of the Studies on the Market Economy and the Construction of the Legal System],
SHOUDU SHIFAN DAXUEXUEBAO [JOURNALOF BEIJING NORMAL UNIVERSITY], Apr. 1995, at 76-79.

49. See generally Jiang Leaves His Mark on the Media, SOUTH CHINA MORNING POST, Oct.
3, 1997; Backingfor Jiang Ideology, SOUTH CHINA MORNING POST, Jan. 26, 1996.

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SOCIALIST LEGAL THEORY IN DENG'S CHINA

to the regulative functions of law in a market economy 0 and has promoted
new economic legislationl He has renewed emphasis on establishing legal
infrastructure, re-enforcing judicial independence, improving the quality
of legal personnel, training lawyers and promoting popular legal
awareness.5 2 As noted before, his approach is instrumental but with far-
reaching consequences. But, one must remember, there remain other
objects of an instrumentalist approach beyond economic development.
Jiang has made it quite clear that cultural and ideological purity may not
be sacrificed for temporary economic growth5 3 The authority and validity
of Marxism still appears to stand beyond challenge. Thus Jiang still
appears to adhere to a repressive view of law rather than to emphasis on
human rights; evidence of such a view may be seen in the treatment of
dissidents such as Wei Jingsheng and Wang Dan and instructions given to
the media to toe the Party line.55 To retain legitimacy Jiang has resorted to
old ideas of ideological conformity.56 The regime has adopted a "strike-
hard" policy in cracking down on violent and hard-core crimes.S The
punishments are harsh and the legal proceedings are rushed.

V. CONCLUSION

Despite the events of 1989, it is fair to say that Deng's conception of
law has generally advanced beyond a simple instrumental concern with
Marxist political rule. Although instrumental concerns remain and are
painfully re-emphasized time and again, law has increasingly been seen as
a social regulator and as a mechanism for effective administration. Law has
increasingly been seen both as a channel for economic modernization
(instrumental perhaps, but in a much broader sense than before) and,

50. Jiang Zemin, Accelerating Reform and Opening-Up, BEIJING REVIEW, Oct. 26 - Nov.
1,1992, at 23. Since then, the regime has been busy with economic legislation and improving legal
facilities for a new economic order. See Legal Service for Economic Order, BEiINGREviEW, Aug.
9-15, 1993, at 4; Reform Brings Out Corporate Law, BEIJING REVIv, Sept. 6-12, 1993, at 24-25;
and Lanyer System Reform to Match Market Economy, BEIJING REVIEW, Nov. 6-12. 1993, at 4.

51. For a summary of economic legislation between 1993-95, see Continued Improvement in
Chinese Legislation, BEUING REvIEw, Jan. 8-14, 1996, at 22-24.

52. Id.; see also Political Reform, Next Target, BEI.ING REVIEv, Dec. 21-27, 1992, at 4.
53. See Political Reform, Next Target, supra note 52 at 9-14.
54. See generally Party Stresses Value of Marxist Foundations, SOUTH CHINA MORNING

POST, June 11, 1996
55. Media to Remain in Hands of Part, BEIJING REvIEW, Feb. 12-18. 1996. at 6; see

generally also Press Reminded to Toe Part, Line, SOUTH CHINA MORNING POsT, Apr. 22 1996:
Hardline Jiang Propagandists for Promotion, SOUTH CHINA MORNING POST, July 3, 1996.

56. See supra note 49.
57. For example, it was reported that in the three-month period between April and June 1996

over a thousand executions had taken place; Crime Purge Sees 98 More Executed, SOUTH CHINA
MORNING POST, July 25,1996, at 7; see generally also Courts to Step Up Executions, SOUTH CHINA
MORNING POST, May 2, 1996.

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COLUMBIA JOURNAL OF ASIAN LAW

despite rather severe crises, is coming to be seen as the principal means to
resolve conflict and to regulate social order. Yet one is always conscious
of the fact that Deng always saw "rule by law" occurring under Party
tutelage, and Jiang seems to continue to hold that position.

In the revived legal studies, which Deng sponsored, one detects a
strong demand for a new socialist theory of law upon which to base the
legal system, independent of that of the former Soviet Union. "Chinese
characteristics" have been stressed and content may be given to that term
when one considers that the Chinese political economy differs from that of
the former Soviet Union in that it is a mixed economy operating in a more
open way. This is what "the preliminary stage of socialism" and later, "the
socialist market economy" boils down to; and as such has major
implications for Chinese law, demanding a new socialist conception to
accommodate a regulatory legal regime. Yet it has been difficult to break
away from Soviet-style thinking, so long as the supreme status of Party
leadership remains unshakable. The "socialist rule of law" remains limited.

Yet one must not be too pessimistic. The fact that jurists could
eradicate legal nihilism is impressive. It enabled jurists to entrench the
"rule of law" in Chinese legal thinking. Discrediting the thesis of "class
will", moreover, after years of heated debate, is considerable progress. Law
has been considerably de-politicized and such de-politicization has
intensified demands for formulating China's own socialist theory, capable
both of expounding legal issues and guiding legal reform. A specifically
Chinese form of legal theory and jurisprudence is vital if institutional
changes are to continue and is vital to developing a popular legal culture.

The demise of the Soviet Union should not deter scholars from
considering the continuing importance of China's inherited "socialist
theory of law". Yet, clearly, the demise of the Soviet Union will impel
Chinese jurists to move further away from Soviet frames of reference. In
the long-term, more and more Western approaches to law will be adopted.
In the meantime, however, legal scholars will be most remiss if they
ignore China's attempts in recent years to employ Marx's ideas as the
philosophical basis of law, China's realities as the empirical source of law,
social nature as the essential properties of law, the economic base as the
chief determinant of law, and regulation and protection of people's
democratic rights as the major functions of law.

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