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By Root 505 0

a modern legal system in the post-Mao era are viewed as crucial steps toward political reform. 68 To the extent that a modern legal system will foster the rule of law and constrain the power of the ruling CCP, such reforms constitute one of the most basic requirements of the commitments of the post-Mao regime to genuine political reform. Yet, the record in legal reform since the late 1970s has been mixed. While the Chinese government has made unprecedented progress in many areas of legal reform, the Chinese legal system remains structurally flawed and ineffective because the CCP is fundamentally unwilling to allow real judicial constraints on the exercise of its power. In his survey of China’s legal reform, Randall Peerenboom observes:

There is considerable direct and indirect evidence that China is in the midst of a transition toward some version of rule of law that measures up favorably to the requirements of a thin theory... but the reach of the law is still clearly limited. The party’s actual role in governing the country is at odds with or not reflected in the Constitution or other legal documents.

As a result, one can see “little evidence of a shift toward a rule of law understood to entail democracy and a liberal version of human rights that gives priority to civil and political rights.”69

Another comprehensive review of China’s legal reform reached a similar conclusion. “In general, the reform of the judicial system has not kept pace with the rapid economic reforms and social changes in China” because the Chinese government adopted a piecemeal approach to law reform and lacked full commitment to real reform.70 This section will briefly review the major achievements in China’s legal reform and analyze the political factors that lie behind the limits of such reform.

The motivations to undertake even limited legal reform were compelling for the CCP in the post-Mao era. To restore political order and create a new legal framework for economic reforms, reforming and strengthening the legal system was a top priority for the Deng regime. In the speech that marked his return to power in December 1978, Deng called for the strengthening of the legal system and identified, as the new leadership’s top priority, the passage of a criminal code, a civil code, procedure laws, as well as laws on enterprises, foreign investment, labor, and environmental protection.71 As William Alford observed:

The [Chinese] leadership’s principal objective in initiating and supporting law reform has not been to foster a rule of law. Rather it has been to legitimate the leadership’s own power while erecting the edifice of technical guidelines believed necessary to facilitate economic reform and reassure anxious prospective foreign transfcrrcrs of sorely needed capital and technology.72

Indeed, China’s legal system, developed under a planned economy and wrecked by a decade of political turmoil during the Cultural Revolution, was inadequate, outdated, and ill-suited for a transition economy. Economic reform would have been inconceivable without reforming the legal system.73 Thus, the CCP’s need for survival through economic reform overlapped with the practical necessities of legal reform. Legal reform, however, as in the case of other major political and economic reforms, can also produce spillover effects and unintended consequences. Such reforms, in Alford’s words, can be a “double-edged sword”—it may bolster the regime’s legitimacy and help gain investor confidence, but it can also spark the political liberalization feared by the regime.74 This political dilemma provides the overall context for China’s legal reform and limits the extent to which such reform can be achieved.

Nevertheless, the progress in legal reform since the end of the Mao era has been unprecedented in Chinese history, as reflected in the passage of a large number of new laws; the increasing use of the courts to resolve economic disputes; social and state-society conflicts; the development of a professional legal community; and improvements in judicial procedures.