In 1918 Oswald Spengler in Decline of the West predicted that western civilization will lose its privileged status. Regarding that, the beginning of XX century was a period of unquestioned domination of our region, this thesis could seem to be unlikely to come true, although after world War I there was not much optimism in Europe. Right now, one hundred years later, we are witnessing how this prophecy comes true. Western civilization loses its dominant position in favor of China. In this context everyone is aware of the importance of the question about the shape of China today and its prospects in the future. Obviously, the answer must be very complex and it is impossible to provide it in a short paper, so I will focus on the legal aspect, especially regarding Constitutional rules. The aim of this paper is not to simply describe all constitutional regulations of the People's Republic of China (the PRC), but to provide profound understanding how Chinese legal system works. To achieve that I will focus only on some aspects which I find crucial for comprehension. Taking this into account, there is a need to reach the basics, namely the most important rules of Chinese constitutionalism. In the first section I will briefly describe the history of law in the PRC. Then I will move to the analysis of four cardinal principles of the PRC, which show the ideology which stands behind all regulations, and sets the status quo of the China Communist Party (the CCP). In section three I will describe other constitutional rules, and try to outline the problems which are lying behind them. Especially, I will focus on the rule of law and human rights protection. In conclusion, I will argue that although the CCP does not prefer any rapid changes, it is aware of the social problems and its policy is to make very slow but steady change. On the other hand, the implementation of western solutions, such as the human rights concept, into the Chinese legal system without considering Chinese culture, at least nowadays must end in failure. There is a chance that China will implement the human rights policy in the future, but not in the shape known in the west.
1. The basic knowledge about the evolution of Chinese law is essential to understand and evaluate the changes which have happened in China since the middle of '70 s and their impact on today's legal system. China had a long and difficult way to achieve the point where it is now. In XIX century and at the beginning of XX under the rule of the Qing Dynasty, China was dominated by western powers, signing the so called unequal treaties which provided many provisions favorable for European countries. This allowed them almost unlimited economical penetration of China, turning it into half-colony. In 1912 the Qing Dynasty fell and the Republic of China was proclaimed. Soon World War I erupted in Europe, and western powers partially withdrew their economic and political interest. Meanwhile, China was the subject of many rapid political shifts, which, in the end, in 1949 resulted in the proclaiming the People's Republic of China by Chinese Communist Party. Since then there have been five regime changes (generations called dai) with the last change taking place at the end of 2012, so it is too soon to summarize actual generation.
The first generation is Mao Zedong era, which was divided into other six periods. At the beginning of this era there were some legislative attempts. Marriage Law, Trade Union Law, and Land Reform Law were enacted. Since 1953 there have also been some legislative projects, such as: criminal code, criminal procedure code draft and civil code draft. However, in the field of criminal law there were no statutes that regulated such crimes as rape, theft, arson and murder. In 1951 the Statute on the Punishment for Counterrevolutionary Activity was promulgated and if any crime did not fall under its authority, the CCP (inconsistent) policy, was applied[1]. In 1954 the first Constitution was introduced. What is more, the concept of judicial independence was developed and the training of lawyers and judges in the law schools began[2]. However, such attempt to construct a legal system did not take long. At the end of the 50's The Big Leap Forward campaign developed, which caused enormous poverty. In 1956 Mao Zedong launched Hundred Flowers Movement encouraging intellectuals to express their views and criticism about the condition of the state. Since there were a lot of critical voices, another campaign was launched - the Anti-Rightist Campaign, whose objective was to remove people who opposed the government's (Mao's) policy from political life Also, the independent legal system was the target of this campaign. Lawyers were transferred to other jobs, law schools started to teach politics, and the competences of judges were moved to the hands of political agencies and the police. The legal system was substituted by Mao's doctrine which distinguished two types of conflicts: the conflicts among the people
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(day-to-day conflicts) and conflicts against people (between people and enemies). While the means to solve the first type were education and mediation, in the second type of conflicts a legal institution had to be involved. Since the majority of conflicts were of the first type, according to Mao, there was not so much need to build a legal system[3]. In 1966 the Cultural Revolution began, which resulted in even more radical deconstruction of the legal system. Law was perceived as belonging to the capitalistic world, so Mao closed down law schools and prosecuted lawyers. Then courts were merged with security bureaus and taken under military control. The whole power was now in the hands of politicians. At the end of Mao Zedong Era, in the '70s there was a retreat from the Cultural Revolution and some legal institutions started to function again. At that time many scholars found the urgent need for establishing the legal system in China.
The second generation which was Deng Xiao Ping Era was a turning point for China. Not only was it a time of opening to the West, but also of restoring the legal system. The first step to make it come true was the 1978 Constitution whose core were so called "Four Modernizations" concerning economy: agricultural, industrial, defense, scientific and technological. However, still all of them were controlled by central government.[4] As Milkwick points out, the Constitution also contained more provisions about concrete competences of the state authorities. Even if they were empty, it was one step closer to create legal system not basing on the wishes of one old man any more[5]. In 1982 the present Constitution was promulgated which set a new trend which led to some kind of division of powers[6]. Obviously, as it will be pointed out later, this "division of powers" has slightly different meaning than as it is understood in the West. In the '80s legal education was developing rapidly. Many new law schools were opened. These changes made China an important partner in the international relations and as a result of this, there was even more need to build a well-developed legal system. This generation ended with the infamous incident on Tiananmen Square. Apart from its moral side which is broadly discussed even today, it had serious international repercussions, slowing down the economic growth for some time.
The third generation, Jiang Zemin era is perceived as a period of even stronger legal reform. He introduced the idea of the rule of law in China, which meant that the CCP party was not above the law any more. This allowed to start the struggle with corruption among the party[7]. A very important step was the promulgation of Administrative Litigation Law. This act allowed to litigate in case of certain rights infringement by an administrative organ. On one hand, it was a great step forward in the way of the leaders' thinking, but on the other, even nowadays administrative law plays a minor role in the Chinese legal system. During this period the Constitution was amended twice in 1993 and 1999. Both revisions concerned economic issues. The 1999 amendment introduced private capitalist practices. Also, during this period China became a member of WTO which is itself the evidence of enormous progress which China made since the '70s as Milkwick points out[8]. One could ask if there is any explanation why the CCP focuses so much on economy, while such issues as the rule of law or human rights are omitted. The CPP's priority is social stability. Thus, on one hand, the CCP tries to avoid any rapid moves, which could destroy the social order, and on the other, it focuses on economy, which seems to be much more objective than axiology[9].
The fourth generation, Hi Jintao era, ended recently, in November 2012. For this Generation the rule of law was important to ensure good economic foreign relations, which, along with the economic growth and the rising significance in the international arena, defined this period. One of the most crucial signs of the evolution of the Chinese legal system towards the rule of law is the 2004 Constitution's Amendment which concerns human rights, including property rights. As M. Urlic Killion points out, this amendment is of a specific character, because, contrary to the 1982 Constitution itself and the previous amendments, it concerns not only economic issues, but also those unrelated to economy[10].
2. After describing the historical background, let us move to the core of this paper - the analysis of the most fundamental principles of Chinese law, starting with the most basic issue, constitutional law. Its construction is essential to understand other areas of law, and how they work. China's Constitution is of 1982 and has been revised several times, mostly to adjust China to market economy. Its enactment by Deng Xiaoping was the first signal that things are going back to normal after the Cultural Revolution. The Constitution is based on fundamental principles which can be divided into two groups. First of all there are four cardinal Deng Xiaoping's principles and secondly there are other fundamental principles. Obviously, the most important are cardinal principles, which consist of such principles as: (1) keeping to the socialist road; (2) upholding the people's democratic dictatorship; (3) the Communist Party leadership; (4) Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of the Three Represents.
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All these principles demand explanation. The first one which proclaims socialism in China seems to be obvious. It means that the disruption of the socialist system by any organization or individual is prohibited. Yet what does socialism in China mean? The field of economy is dominated by market economy, which quite contradicts the idea of socialism. The socialistic character of Chinese (market) economy is explained in this manner that the means of production are owned by people (or working people) and the land in urban areas is owned by the state while in the rural areas by collectives. The citizens have the right to use the land only and this right can be transferred. Although this socialistic provisions seem to prevail, the public sector and private ownership are very important components of Chinese economy, creating a hybrid - socialistic market economy[11]. Moreover, China is also a socialistic dictatorship. This means that socialism in the Constitution concerns mostly the political sphere. What is protected is not socialistic economy, but the specific political dictatorship of the party.
The second principle sounds even more mysterious. What does the "People's democratic dictatorship" exactly mean ? To understand this, we need to move back to the beginnings of the PRC. As Arthur Steiner points out, the concept of "the People's Democratic Dictatorship" was developed by Mao Zedong in the '40s as the policy for his communist party. It replaced the former doctrine called 'the new democracy' which was simply the idea of the struggle with feudalism, imperialism, and bureaucratic capitalism. This was also the ideological basis to gain allies in the war with Kuomintang. In 1949 there was a need to legitimate the new order and Mao Zedong replaced "the new democracy" with "the People's Democratic Dictatorship" doctrine[12]. The first step in clarifying this doctrine was to explain the meaning of 'the People'. For Mao "the People" fell into such categories as the landlord class, the capitalists and Kuomintang. The term "the People" included not only the working class, but also the peasant class, the petty bourgeoisie and the national capitalists[13]. The other Mao's interpretation equaled "the People" with the CCP[14]. Nowadays this definition seems to be slightly different. "The People" are all those who support socialism and the leadership of the CCP. It means that only this category can enjoy political rights and privileges. By narrowing the definition of "the People" dictatorship has been ensured. The term "the People" does not include everyone who has the citizenship of the People's Republic of China and, as the direct meaning could suggest, the Republic of China belongs only to people. To sum up, the People's Democratic Dictatorship is the combination of democracy and dictatorship. Obviously, this democracy is not of the liberal kind. It is rather democratic centralism, where free discussion among the party members is allowed, but when a decision is made, all members are supposed to support the decision. It also means that the power to elect deputies does not belong to Chinese citizens. While in the western democracies citizens have influence on who will exercise power, which is a kind of democratic control, in China it is beyond their control. Central democracy is characterized by the lack of power separation and of constitutional review[15].
The principle of the Communist Party Leadership seems obvious. As it will be shown below, in fact The CCP holds almost ultimate power. But is that possible, if there are very complex institutions, especially when it seems that the National People's Congress (NPC) is the main legislative organ with a lot of prerogatives? One could ask what the real power of the NPC. To answer this question let us examine the Chinese political system. The power in the People's Republic of China is divided among five authorities. Each one exercises another kind of power. Political power belongs to the Communist Party of China, while the National People's Congress exercises legislative power. Executive power belongs to the State Council, its ministries and commissions. And there is not only the judicial power which belongs to courts, but also procuratorial power executed by people's procurators. Besides the horizontal division of power there is also a vertical one. Power is divided among central, provincial, municipal, county, township and village authorities[16]. Yet the most important is not the division of power but the relations between all of these authorities. In theory the prime status in China is held by the NPC, but the NPC recruits the members of the China Communist Party (CCP). Currently, the total number of 2987 deputies are elected (by the provinces, autonomous regions and municipalities) for five years. They meet at the sessions for one to -three weeks. It means that they work as deputies no more than twenty days a year. The NPC amends the Constitution, creates the Basic Law, which concerns the state organs including the appointment of the top officials such as the President, the Prime Minister and the President of the Supreme People's Court (SPC), and civil or criminal law. The NPC also approves the budget, as well as the social development plans, and it decides in the matter of establishing provinces, and autonomous regions among other things. The organizational structure includes nine Special Committees: Ethnicity; Law; Foreign Affairs; Overseas Chinese; Internal and Judicial Affairs; Finance and Economics; Education, Science, Culture and Public Health; Environmental and Resources Protection;
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Agriculture and Rural Affairs. When there are no sessions the duties of the NPC are taken over by the permanent body of the NPC, called the Standing Committee which directs the work of those nine Special Committees. The members of the Standing Committee meet once every two months. Apart from the above mentioned functions, the Standing Committee interprets and enforces the Constitution and the law, and supervises the work of other powers. The Standing Committee plays also a big role in international affairs since it decides on ratification of treaties. This is how it works in theory. In fact, the role of the NPC is rather defined as "rubber stamp legislature" while the CCP (or rather the Politburo and its seven members) dominates all its actions, setting policies, submitting legislation to the NPC and having the ability to remove the NPC's members[17]. Such centralization of power also has good points. It allows the authorities to impose special measures in case of a crises very quickly[18] while in democracy there are endless debates. It is so, because while in western democracies the parliament enjoys decision-making ability, the NPC does not. It is the CCP who is the decision-maker.
As it was mentioned, executive power belongs to the State Council, which also is the highest administrative organ. The members of the State Council are as follows: The Premier, the vice-premiers, the state councilors, the Auditor-General and the Secretary-General. The State Council is composed of Ministries, Commissions, the People's Bank of China and the State Audit Office. One of the State Council's responsibilities are foreign relations between the People's Republic of China and other countries. In practice it means that the State Council has only a limited power to conclude international treaties. They still need to be affirmed by the Standing Committee (in fact the CCP).
A specific organ for the Chinese legal system is The Supreme People's Procuratorate designed for judicial supervision, responsible to the NPC and the Standing Committee. This is also the supervisor of local people's procuratories.
The last but not least cardinal principle is Marxism-Leninism and Mao Zedong Thought, Deng Xiaoping Theory and the important thought of Three Represents. When Marxism-Leninism and Mao Zedong seem to be important rather in the historical context, and as ideological guidelines, the last two mentioned ideas are crucial for modern China. As Killion points out, the combination of all of them secures the strong position of the CCP[19].
Deng Xiaoping Theory was the first step toward making China recover after the catastrophic Cultural Revolution. As this theory has a pragmatic background, he did not reject the theories of his mental ancestors, but tried to adapt them into the modern world and the existing socio-conditions. Thus, he attempted to merge market economy with the political aspect of Marxism-Leninism. He also opened China to the outside world.
The thought of Three Represents was developed in 2000 by Jiang Zemin. While Marxism-Leninism ideology is becoming more and more irrelevant in changing the Chinese society, there was a need to support the supremacy of the CCP in a new way[20]. The thought of Three Represents is focused on the future role of the CCP, which is supposed to support three aspects: first of all, the development in the advanced productive forces in China (e.g. DNA research, space travel, and IT), secondly, advanced culture (sport, opera, ballet, and traditional culture) and thirdly, the fundamental interest of the broadest masses of the people in China (the unity of all people, including minorities, under the leadership of the CCP).
3. Other fundamental principles of Chinese constitutional law include the Sovereignty of the People, the Rule of Law Principle, the Equality of All Nationalities and the Protection of Basic Human Rights. All of them need examination, and therefore this paper is going to present how they are understood and which kind of problems they involve.
The first principle, the Sovereignty of the People is strictly connected with art. 2 of the Constitution and the cardinal rule of law bound with the People's dictatorship. In article 2 it is mentioned that the People exercise their power through the National People's Congress (NPC) and the local authorities. There is also no need to repeat what the division of power in the PRC looks like. Obviously, this sovereignty is ensured if it conforms with the CCP's policy.
The second principle concerning the rule of law appeared in 1999 in Amendment 3. Until that moment China had been under the rule by men doctrine. However, even a short analysis of the cardinal rules puts into question the rule of law in China. One of the main ideas of the concept of the rule of law comes from the Aristotelian statement that law should govern. It means that everyone, also a lawmaker, is under the rule of law. Nowadays there are two understandings of the rule of law. While the formalist definition of the rule of law demands only some procedural standards, the substantive definition involves even more - axiology. In China even the formal meaning of the rule of law is put into question. The cardinal principles indicate that the lawmaker might be above the law. Also, in many aspects of the legal system in China, the rule of law is not effective. As Killion points out, China's government lacks popular sov-
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ereignty, the separation of powers and independent judicial review[21]. It was demonstrated above that technically, all power is held by one body. Another aspect where there might be doubts whether the rule of law functions properly is the judicial system. As it was mentioned before, during the Cultural Revolution law was substituted with mediation and political mechanisms. Since the '80s' this trend had been reversing, and the authorities made attempts to restore the legal culture. They put a lot of stress on the legal education and founded law schools. However, there are still not enough well qualified lawyers in China. What is more, some of them do not have legal education, and they are recruited for example from the police. Therefore, although since 1970 there has been big improvement in this matter, the quality of judges in China is still low. Not only are they poorly educated, but also they do not have judicial independence and their rulings are followed by weak enforcement[22]. The lack of independence is also the result of the accountability of the presidents of the People's Courts to the people's congresses. Despite the fact that according to Judges Law, judges cannot be dismissed without a reason and legal procedure, a president of the people's court can be replaced at any time either by a people's congress or a higher level standing committee (if there is no session of a people's congress[23]. Also, judicial independence is understood differently as in the West. While in western countries judicial independence means, above all, the freedom in decision making, which means that the decision of the judge cannot be affected by any political or economic influences, in China judicial independence is understood collectively, as the independence of the whole court. In every court there is an adjudication committee, (the court president and mostly judges appointed by standing committee) whose main task is not only to discuss the most complicated trials (which in fact amounts to the control of the judges), but also they can enforce the ruling which comes from standing committee. Another problem is that this committee is not responsible for its decisions. Its members cannot be removed unless they are ill, retired or they leave the court[24]. This infringes independence of particular judges even more. However, even collective independence is put into question. Courts are not only financed by local governments, but also senior court officials are appointed by local authorities, so they protect local interests in the first place[25]. As Killion points out, while the Supreme People's Court is responsible to the NPC, it is rather unlikely that in the near future more judicial review power would be granted (except the power to review each death sentence, granted recently). It is so, because it would destroy the supremacy of the legislature over other powers[26](and the supremacy of the CCP as well).
An interesting observation is in this context proposed by Carl F. Minzner. He points out that in the second decade of XXI century we can observe a new trend which he calls the "turn against Law"[27]. Statistics show that the amount of civil cases resolved through mediation doubled from over 30 percent in 2004 to over 60 percent in 2009[28]. Since the same process can be observed also in the West, one could conclude that it is just a global process. However, Minzner argues that Chinese turn against law has a different character. Their aim is to dominate the judiciary system even more and to prevent any social protests. Unlike in the western countries, this is not a movement initiated by lawyers or citizens, but it has an authoritarian character. It is based on ideological and bureaucratic control which should ensure social stability[29]. As such trend put into question the role of the judiciary system, the rights of the party and the legitimacy of institutions, it undermines the efforts to implement the rule of law in China. Minzner admits that obviously there are still observable attempts to improve the legal system, and this shift also brings positive results such as the chance to develop effective ATR legal system, but this new trend is of a character destructive to reforms[30]. Although this argumentation seems to be sound, Minzner seems to forget that Chinese culture is based on Confucianism, according to which mediation is the preferable conflict resolution. Litigation means that virtuous relationships (based on Confucian philosophy) are broken[31], so mediation is much stronger rooted in the mentality of the Chinese, than in that of the western world citizens. Undoubtedly, this cultural background can still serve the party in its instrumental goals such as making the role of the judges even more minor.
Another issue which puts the Rule of Law into question is legal interpretation. There are three kinds of legal interpretation in China: legislative, administrative and judicial. While legislative interpretation prevails, the judicial one has the lowest level of significance. Obviously, one of the duties of the NPC is to issue legal interpretation, if the legal meaning of the rules should be more precise, or if, due to some new circumstances, the legal rule demands clarification. Such interpretation has the same effect as the legal rules issued by the NPC[32]. This means that judges have freedom in their legal interpretation as long as legislative authorities allow it. Fortunately, the role of the Supreme People's Court seems to grow. While in the Constitution courts were not authorized to make legal interpretation, the 1981 resolution authorized the Supreme People's Court
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to interpret the law as long as it is connected with the legal question which arose during the trial. The Supreme People's Procuratorate (SPP) has a similar function. If the interpretations of the SPC and the SPP contradict, the NPC decides which one prevails. It means that the NPC has a very convenient tool to void the ruling of the SPC. Since 1997 the SPC has had even more functions. Its interpretation has legal effect, and the lower courts, if they base their rulings on legal interpretation, should cite both: the law and its interpretation. Another function of the SPC is to reply to the legal questions coming from lower courts[33].
The third Principle states the equality of all nationalities (art. 4 of the Constitution). In China there are about 56 ethnic groups but over 90% of the population is of Han nationality. Such imbalance causes many complicated situations such as the simple example with Tibet. This principle is put into question for many reasons, for example, because the vote in the NPC from the urban areas counts as four votes in the rural areas and the minorities tend to live rather in such rural areas[34].
The fourth Principle has been added in 2004 by the Amendment to art. 33. It is commonly known that China has problems with Human Rights policy, but 2004 Amendment indicates a mental change. It can also be seen that China steadily implements improvements in this matter. Obviously, violation of Human Rights in China is a very broad topic, discussed worldwide. My intention is not to present a full picture of it, but to show some general trends which might be crucial for the future.
As Joseph Raz points out, in the whole discussion about human rights, cultural differences must be considered. Raz calls for synchronic universality of human rights doctrine which means that all people who are now alive have the same human rights. This helps to avoid the problem of a caveman who, according to traditional doctrines would have the right to education. Nevertheless, to avoid the problem of cultural relativity and the difficulty of interpretation, Raz points out that there are not only synchronic universal human rights but also other kind of rights. The first group should be singled out, because they are the rights which make the claim about their violation which comes from a different state or a different culture still valid[35]. Thus, talking about human rights in China from the western perspective, it only makes sense to speak about violation only of those which are synchronically universal. If this category was broader, this could result in the suspicion that this is a way to smuggle western ideology[36]. As it was marked earlier, the CCP avoided the discussion about human rights for a long time, as human rights are perceived as something relative. However, the concept of synchronic relativity makes this argument invalid. There is indubitably a catalogue of human rights which might be relative, but not all human rights have this character.
The second remark is about the way in which human rights function. Raz argues that nowadays human rights movement plays a great role in their enforcement. Ordinary people, very often organized in broader networks, are empowered to react when human rights are violated. This movement corrects the imbalance caused by central governments and corporations[37]. As we all know NGOs are not welcome in China, there is no freedom of speech, web sites owned by human rights organizations are blocked and it is impossible to obtain search results in web browsers for instance for "human rights" or "Tiananmen". If human rights movement is one of the factors which indicates the condition of human rights policy in a country, then the condition of human rights in China is very poor. The only way to make change in the field of human rights is a voluntary decision of the CCP and the CCP makes very small steps to improve the situation (such as the revision of each death sentence by the Supreme People's Court), but at least there are some.
So if, instead of the fundamental, we should consider the ecumenical point of view regarding cultural differences, then which tradition should we recall in the Chinese case? Joseph Chan suggests that Confucianism understood as philosophical thought can be compatible with the human rights doctrine if properly interpreted[38]. Chan suggests four conditions as follows:
1) There are human rights that protect important interest in ren (virtue denoting good feelings, love to another person) or humanity
2) Such protection should be seen as fallback apparatus: rights are important when (...) personal relationships break down
3) Human rights should not be inflated, that is, they should not be considered constitutive of valuable personal relationships or necessary for the display of virtue and they should not be intended to offer protection for debased acts as well as good ones
4) Rights instruments should be the last means to resolve conflicts[39].
If such conditions were fulfilled, then the human rights idea, which stems from western culture would not contradict Chinese mentality. Also some rights, such as the freedom of expression, would demand reformulation which would rather serve, according to Confucianism, the correction of wrong ethical beliefs[40].
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4. To conclude, as Milkwick points out, Chinese law reform has been compared to a bird in a cage. This bird is alive, and we can hear it, but it is still in the cage[41]. Despite all the problems, some of which were described above, China seems to make slow but steady progress toward a more democratic, governed by the rule of law, state. The CCP will not renounce its ultimate power soon, but year by year it makes small improvements. According to Killion, China's further economic growth depends on the political reforms which fulfill the rule of law requirements[42] and some decisions of the CCP (such as providing the rule of law in the Constitution) seem to indicate that they are aware of it.
Considering the slow transformation of the Chinese legal system we cannot forget about the two dominant schools of legal philosophy: previously mentioned Confucianism and Legalism. While Confucianism claims that human society is based on hierarchical relationships which determine certain duties and certain rights and combines law with ethics, Legalism is connected with positive law. It favors centralized power, and Machiavellian style of controlling and maximizing power. Even if these influences are not an official doctrine, they affect strongly the way of contemporary political figures' thinking[43]. Killion points out that:
Confucianism, tradition and Asian values in general constitute China's 'history of the present'. It is through China's distinctive ontological base in tradition that it will potentially make progress in the area of political and economic development, and in the area of constitutionalism, rule of law and judicial review. Confucianism and Asian values serve as harbingers of foundational or societal values, encompassing the forces, if not the values of China's political, socio-economic and legal institutions.[44]
It is impossible to predict the future, but If one wants to predict some trends of the Chinese legal system, he or she must regard them thoughtfully and try to understand them. As Killion points out, Confucianism might be a hope for future Chinese Renaissance, parallel to the Renaissance period in Europe marked by the freedom of thought and intellectual awakening. Confucianism can offer a new idea of liberty - in contrast to western individual freedom, this one would have a collective character (as Confucius understood it). It is so, because Confucianism, strongly set in Chinese mentality, is the ontological basis for the whole the Chinese legal system and as such it is prior to constitutionalism[45]. In addition, this change can happen only with respect to Chinese culture. The western world cannot force the change in the western style, because it would be incompatible with the Chinese mentality. And China has learned its lesson from XIX century and is looking for its own way, without western help unless it is necessary. As it was pointed out in this paper China has still a lot to do to improve its social and political conditions, but no one can deny that mentioned at the beginning Oswald Sprengler was right.
Chan, J. A Confucian Perspective on Human Rights for Contemporary China, [in:] The East Asian Challenge for Human Rights, ed. J.R. Bauer, D.A. Bell, Cambridge University Press 1999
Douglas, E. The Struggle for Human Rights Versus Stability: The Chinese Communist Party and Western Values Clash, Denver Journal of International Law and Policy, 2001/29
Ghai, Y.P., Woodman, S. Loper, K.A. Is there a space for 'genuine autonomy' for Tibetan areas in the PRC's system of nationalities regional autonomy?, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1815887 (visited 11.08.2013)
Killion, M.U. China's Amended Constitution: Quest for Liberty and Independent Judicial Review, Washington University Global Studies Law Review, 2005/4:43,
Lo, V. Tian, X Law and Investment in China: the Legal and Business Environments after WTO Accession, London Rutledge Curzon, 2005
Lo, V. Tian, X. The legal and Business Environments after WTO Accession, London Rutledge Curzon 2005
Milkwick, B. Feeling for Rocks While Crossing the River: the Gradual Evolution of Chinese Law, Journal of Transitional Law and Policy 2005/14
Minzner, C.F. China's Turn Against Law, The American Journal of Comparative Law 2011/59
Raz, J. Human Rights in Emerging World Order, Transitional Legal Theory 2010/1
Steiner, H.A. The People's Democratic Dictatorship in China, The Western Political Quarterly, 1950/3/1
Xin, H. Black Hole of Responsibility: The Adjucation Committee's role in the Chinese Court, Law and Society Review 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038216 (6[th] of August 2013) ■
NOTES
[1] See: B. Milkwick, Feeling for Rocks While Crossing the River: the Gradual Evolution of Chinese Law, Journal of Transitional Law and Policy 2005/14,p. 292.
[2] V. Lo, X. Tian, The Legal and Business Environments after WTO Accession, London Rutledge Curzon 2005, p. 2.
[3] Ibidem.
[4] E. Douglas, The Struggle for Human Rights Versus Stability: The Chinese Communist Party and Western Values Clash, Denver Journal of International Law and Policy, 2001/29, p. 163-164, 259, 260.
[5] B. Milkwick, Feeling for Rocks While Crossing the River: the Gradual Evolution of Chinese Law, Journal of Transitional Law and Policy 2005/14, p.295.
[6] Ibidem.
[7] Ibidem, p.297; However it should be pointed out that corruption is still a big problem in China.
[8] Ibidem, p.299.
[9] M. U. Killion, China's Amended Constitution: Quest for Liberty and Independent Judicial Review, Washington University Global Studies Law Review, 2005/4:43, p. 67.
[10] Ibidem, p. 46
[11] V. Lo, X. Tian, Law and Investment in China: the Legal and Business Environments after WTO Accession, London Rutledge Curzon, 2005, p. 5.
[12] H.A. Steiner, The People's Democratic Dictatorship in China, The Western Political Quarterly, 1950/3/1, p. 38-39.
[13] Ibidem, p.39.
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[14] See: B. Milkwick, Feeling for..., p. 301.
[15] M. U. Killion, China's Amended Constitution..., p.69, 72.
[16] V. Lo, X. Tian, Law and Investment in China..., p. 6.
[17] B. Milkwick, Feeling for Rocks. , p. 290.
[18] Such as in 2008. Measures were imposed in China just in one month.
[19] M. U. Killion, China's Amended Constitution., p.78.
[20] Ibidem.
[21] Ibidem, p. 47.
[22] H. Xin, Black Hole of Responsibility: The Adjucation Committee's role in the Chinese Court, Law and Society Review 2011, http://papers.ssrn.com/sol3/papers.cfm7abstract_id=2038216 (6[th] of August 2013), p. 15.
[23] Ibidem, p. 16.
[24] Ibidem, p. 9.
[25] Ibidem, p.2
[26] M. U. Killion, China's Amended Constitution., p.70.
[27] C.F. Minzner, China's Turn Against Law, The American Journal of Comparative Law 2011/59, p. 935-936.
[28] Ibidem, p. 944.
[29] Ibidem, p. 937-938.
[30] Ibidem, p. 936-938.
[31] J. Chan, A Confucian Perspective on Human Rights for Contemporary China, [in:] The East Asian Challenge for Human Rights, ed. J.R. Bauer, D.A. Bell, Cambridge University Press 1999, p. 226.
[32] V. Lo, X. Tian, Law and Investment in China...,p. 14.
[33] Ibidem, 14-15.
[34] Y.P Ghai, S. Woodman, K.A. Loper, Is there a space for 'genuine autonomy' for Tibetan areas in the PRC's system of nationalities regional autonomy?, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1815887 (visited 11.08.2013), p. 29.
[35] J. Raz, Human Rights in Emerging World Order, Transitional Legal Theory 2010/1, p.41-43.
[36] Ibidem, p.44.
[37] Ibidem, p.41.
[38] J. Chan, A Confucian Perspective. , p. 212-215.
[39] Ibidem, p. 233-234.
[40] Ibidem, p. 237.
[41] B. Milkwick, Feeling for Rocks While..., p. 290.
[42] M. U. Killion, China's Amended Constitution, p. 48.
[43] M. U. Killion, China's Amended Constitution. , p. 65.
[44] Ibidem, p. 68.
[45] Ibidem, p.80.
Lábjegyzetek:
[1] The Author is associate professor, Faculty of Law and Administration University of Lodz.
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