Professor Cohen's lecture has really opened my eyes to China's current situation. I never fully realised the extent to which China, our world's largest population, had struggled to develop their existing legal system. Listening to Professor's lecture and reading the articles has really made be appreciate our own legal system in Australia, and the measures adopted to enforce the rule of law. Before we can contrast China's legal system with out own and identify their inefficiencies, however, I think we must take into consideration the Chinese legal heritage and journey so far.

Confucianism has, and continues to, play a large influence in China. This source of ethical guidance favoured government by means of moral rules (li) instead of legal rules enforced by the authority of the state (fa). This involved a belief that judges and statutes were a necessary evil only to punish criminals, not to regulate private affairs. I think this attitude in some people is partly the reason for their reluctance to enforce a rigid legal system; especially in light of the human rights abuses going on over there.

Even though I strongly look down on the treatment of individual expression in China, I must also at the same time commend them for their development in the past 20 years. There was a period, after all, where absolutely no law existed and all legal textbooks were burnt. So the Chinese have come considerably far and although in comparison to Australia they may seem behind, there is a lot of progress to come, as is the case in Australia too.

In response to the question, I believe there is no clear Rule of Law in operation in China. On the one hand, their commercial status is flourishing, but the creation of human rights for citizens - something we consider paramount in Australia - remain dismal. As pointed out in the lecture by Rowena Maguire, there are numerous obstacles to establishing a Rule of Law in China.

Professor Jerome Cohen asserts that without the rule of law, you cannot have justice aided by law. I do agree with this view strongly. Recent Chinese economic prosperity (at least for some in China) has been achievable in part through its ‘rule by law’ (eg. the well developed regulations and commercial law). However, rule by law can be subject to the whims and interests of those in power, and may not not deliver ‘justice’ to those whose interests at some point may conflict with the interests of those in power.  If we take the ‘rule of law’ to mean government subject to law (along with all the citizenry) without favour, fear or arbitrariness, then in theory at the very least, the mechanism to achieve this is by having legal institutions (the judiciary) independent from influence from the other arms of government such as the executive and legislature. A V Dicey suggested independent courts could safeguard basic constitutional rights and provide justice to individuals who seek to enforce their rights (whether or not these rights and principles were enshrined in a constitutional written document) and it would be safe to assert generally that legal theorists would support the view that an independent judiciary is necessary for the rule of law to exist in practice.

A written constitution, Chinese courts as a weak institution, and influence by the Communist Party.
The written constitution of the People's Republic of China states that there shall be no interference with the courts, though there is a caveat that Communist Party influence is essential. Prof Cohen suggests that the Chinese Government's interpretation of the rule of law is that of the rule of law with peculiarly Chinese characteristics (for example, property rights referred to in the Constitution does not necessarily mean the same protection in law that one might expect to receive in a western liberal  democracy). Certainly, the rule of law as it is understood in a liberal democracy does not exist in China. And what of peculiarly Chinese characteristics? Taiwan has similar cultural/Confucian historical perspectives on law. Chinese culture exists in both Taiwan and the People's Republic of China but there has been a better protection of property rights in Taiwan as a result of implementing well in practice an adversarial model with both parties or prosecution and defence as equals before strong independent courts. In Taiwan, the strength of independent legal institutions helps to achieve justice for individuals. In China however, Prof Cohen asserts that China's courts are generally a weak institution (facing problems such as lack of independence, corruption, the difficulty of being a judge especially in rural areas of China with pressure from party officials, families and businesses and many other issues that fellow bloggers on this site have identified). So how does China fare on the 'Constitutional' promises of the rule of law?

Prof Cohen said that the courts in Chinese political theory do not enforce constitutional rights. Rather the Communist party Standing Committee of the National People's Congress is the body which interprets and enforces these rights, but apparently it is not doing so, or doing so with limited progress. An increasing discontent among the population (e.g. widening gap between rich and poor, ad hoc dealing with landed property rights) and much of it related to China's rapid economic growth, has seen an increase in litigants seeking to assert their rights and in some cases courts have started to respond by giving relief (though in creative ways, and by not specifically mentioning those constitutional rights). So, even the Chinese formal legal system is hamstrung from providing justice in many cases.

Prof Cohen further suggests that the Chinese formal legal system operates according to 2 types. The first, where entire court processes generally occur by the rules, much as they would in any modern democracy where procedural fairness along with other requirements of an effective judicial system are adhered to (perhaps with the exception of witness cross-examination in criminal trials). This is to be applauded considering the legal system has developed in its current form only since 1978. As Donald Clarke points out, lawsuits sometimes can effectively be used to achieve justice (sometimes for individuals, sometimes on a broader social scale) e.g. victims of the Sichuan earthquake who with lawyers tried to sue the relevant authorities and companies for corrupt practices and poor building construction in a form of political/broader social activism; families of victims litigating in the Melamine tainted milk scandal. It would appear that justice could potentially be achieved through the courts where the issues (like in these examples above)are largely non-controversial and don't challenge the rule of the Communist party. John Kamm would support this view as he estimates that 100,000 "mass incidents" occur annually in China representing voices of dissent, however these issues of ‘dissention’ can be freely debated within the society as long as they don't challenge the role or authority of the Communist party.

The second type of operation of the legal system according to Prof Cohen occurs where there is a suspension of the formal rules, and instead repression and informal means such as torture, persecution, and possible abuse of police powers to (arbitrarily) arrest, are methods used in place of formal legal procedures and this occurs where there is an effort by authorities to suppress movements such as Falun Gong or democracy rights movements which may challenge the authority of the Chinese Communist Party. This scenario is more than an interference with the independence of the judiciary, but appears to be a situation where the government itself is choosing to usurp the role of prosecutor, judge and executioner. It is the second type of operation of the law, the ad hoc dispensation of the rules of justice which exemplifies the lack of a true rule of law, which is a serious cause for concern to achieving (in the end) substantive justice. For example, Prof Cohen says that public interest lawyers face harassment, disbarment, persecution, and prison; and the case of the blind man (Guan Chungung?) who was a self trained legal activist who fought against forced abortion and sterilisation and against discrimination of the blind, was condemned on frivolous grounds and imprisoned for four years and three months and his family also was collectively punished; and Gao Zhiseng who was a lawyer driven to protect the civil rights of dissidents and lower classes was sentenced and tortured for his defence of Falun Gong. So, even the attempt to use legitimate court processes to defend an interest may be thwarted (and one injustice at this point is the inability to defend oneself before the law, and the second injustice that follows is that the merits of any substantial justice issue raised is not subsequently dealt with).  It is somewhat paradoxical that procedural fairness, which is not denied to members of the Communist Party who face possible expulsion (and judicial process is imported into the Chinese Communist Party Rules including the requiring of evidence for expulsion, a right to a hearing, the right to an advisor, the right to reasons for any adverse decision, and avenues of appeal ), should in some circumstances be denied to an individual facing a potentially serious criminal offence such as in the Stern Hu case (arrest of foreign mining company executive with no charges and no (at least initial) access to a lawyer):

Prof Cohen speaking to ABC News (abc.net.au) Transcript from 16 July 2009:
…when it comes to dealing with espionage cases, the Chinese legal system "creates a very oppressive and frightening atmosphere".
"The suspect really gets locked up, isolated, gets held incommunicado for many months usually"
"Because it's a state secrets case, police have the discretion under Chinese law to deny the suspect access to a lawyer - and they normally do.
"So it means that until the secret police complete their investigation the accused is simply left alone, and the only people he or she sees are the people who interrogate.
"It often leads to forced confessions and of course that then leads to more unfairness." "In a case like this they could delay handling his case for a couple of years."

Stern Hu was detained before any charges were laid. As late as this Wednesday (12/08/2009) the Chinese media has reported Hu's facing the suspected charge of "using improper means to obtain commercial secrets relating to the Chinese steel industry". It is not yet determined whether he will be facing any espionage charges. Nevertheless, it would appear that when China's commercial growth interests could potentially be inhibited (the Chinese government no doubt considers that prices for iron ore resources impact in some way on economic growth) the Chinese government can influence judicial process, in a way that resembles the ad hoc approach to procedural fairness as evinced in Cohen's identification of the second type of operation of the Chinese legal system.

It would appear then that the attainment of justice (both in the broader political/social context and in the legal context) will not truly be achievable in China until any and all interference with judicial process by the Communist government of China is abandoned. Until the rule of law is established in practice in China, I believe, then the only substantive justice that can currently be achieved is that through the political efforts of the Communist party to address the current social ills facing that society, or where there are non-controversial issues that are also non-threatening to Communist party interests, then perhaps those matters affecting individuals might see justice according to current court processes.

Alexander Szogi

Coming from such a different legal background, I think it's hard for the majority of us to understand or digest some of the unfortunate things that has happened in China's legal history. I also find it so interesting that back then, one man - Mao, had such control and influence over such a massive population that it was only once he was dead that things started to change for the better.

The video mentioned that China is still struggling with their legal system it that a lot of what is written down in law is not strictly carried out in practice. Even though this may be the case, I think it's unrealistic to expect immediate perfection of a country that's been so deeply rooted in Communist doctrine and socialist thought. Although the past may have left a stain on China's legal history, Professor Cohen mentioned that in last 30 years, the Chinese Government has made as much progress in developing legal norms and in enacting legislation etc. as much as any other country has done in a comparable amount of time. This in itself is an achievement.

LiQUT wrote:

Coming from such a different legal background, I think it's hard for the majority of us to understand or digest some of the unfortunate things that has happened in China's legal history. I also find it so interesting that back then, one man - Mao, had such control and influence over such a massive population that it was only once he was dead that things started to change for the better.

Hi everyone,

I'm a bit of a newcomer to the entire subject matter that Professor Jerome Cohen discussed in his lecture so excuse me if I have misunderstood anything and my post doesn't make sense, or if i've over simplified anything. 

I am absolutely astounded that it was only after Mao's death that things begun to change!  To think one man could have such control like you said, over a massive population is crazy. 

I agree with the majority of posters that have said that we can't really make judgement on a legal system that has only really been developing for 30 years when in those 30 years it has come farther than any other legal system - not to say it doesn't still have its difficulties, as pointed out in Cohen's lecture.  It's so easy for us to point the finger and make comment on another world super powers legal system, but because of that power, our Government and many other Western society government's choose to turn a blind eye to the many injustices occurring.  From my understanding Australia has many trade deals with China so I don't think Kevin Rudd would want to make such a massive super power an enemy.  It's kind of like not wanting to make enemies with the school bully, people would rather be their friend and benefit themselves.  I'm not sure whether or not I believe that we should continue to support China or not...It makes me think of national sovereignty - We always say that what happens within other borders is their business, not ours.  But with such horrible human rights in place, should we make a stand?   

Monique Grigg

Rule of law does not and cannot exist in a communist society. totalitarian rule cannot be kept in check by a separation of powers obviously. the lack of independance of the judiciary and the corruption that exists within inhibits proper law making and just outcomes for the people. the confucian principles that people are inherently good without the need for laws is outdated and has also prevented proper development of laws. the constitution is a farce without the proper institutions to support its enforcement, a lack of adherence by the communist party and a failure by the corrupt courts to guarantee any of its provisions. the internet however, has allowed the free expression of opinion by dissidents even though an estimated 30,000 cyber cops have been employed by the communist party to attempt to regulate its use. there is not justice. there is not rule of law. can we expect it?