A. Origins

What is the essence of socialist law? The answer might seem self-evident but it is actually quite difficult to define if we take an overview of the variety of Marxist-Leninist arguments.Footnote ²⁸ Admittedly, it is not simply the extension of ‘socialism’—a series of economic theories—into the legal system. To make the definition of socialist law salient, it is necessary to clarify two key phrases in political science: ‘socialist State’—the widely-recognized socialist jurisdictions developed from the Soviet Union—and ‘Marxist-Leninist ideology’—Karl Marx and Vladimir Lenin's political theories to achieve the socialist ideal and finally a communist society. As a metaphor, a ‘legal family’ cannot be seen simply as the systematization or classification of a system on the basis of common elements and characteristics influenced by the parental system. It must also incorporate a common ideology which may be traced back to its point of origin in the parental system or beyond. To sketch the essence of socialist law, it is necessary, first of all, to seek the original conception of socialist jurisprudence and the socialist system from which it emerged.

The classic tenets of Karl Marx and Friedrich Engels provided the Bolsheviks in the ‘October’ revolution with enough political principles for overturning the regime of Tsarist Russia, but gave little guidance on constructing a formal jurisprudence for the new socialist State.Footnote ²⁹ In Marxist doctrine, the economic foundation is the decisive base for the superstructure, which comprises social ideology and correspondingly the legal regime. Thus, law is not a self-contained objective system but, like politics, is only a collection of norms which serve the interests of the ruling class.Footnote ³⁰ The idea of legal autonomy is incompatible with most versions of Marxist legal theory.Footnote ³¹ This notion, namely that law and politics are servants of the economic foundation, supplied the Soviet theorists with the opportunity to inject Marxist political theory into socialist jurisprudence. In addition, in Marxist doctrine, law is seen as being determined exclusively by its political function, since law is created and enacted by the State. Thus, law is a coercive ‘order’ or instrument for the ruling class to control the state, ‘holding down and exploiting the oppressed class’Footnote ³² and ‘safeguarding the interests of the ruling class and the state’.Footnote ³³

Socialist law evolved gradually with the appearance of new ideas. The ‘socialist theory of law’ was originally put forward by VyshinskyFootnote ³⁴ and subsequently supported by Stalin.Footnote ³⁵ From then on, the argument that law and socialism were incompatible, because the former was merely the tool of the ruling class, was officially rejected. Socialist law was not seen as an extension of bourgeois law however, even in the proclaimed ‘socialist transition’ stage, but as a new type of law created by proletariats.Footnote ³⁶ Marxist theory, with its basic maxim of dialectic materialism, was claimed by Soviet theorists not to be a static dogma but in constant evolution with changing times. Thus, socialist law was expected to combine those parts of Marxist doctrine regarded as immutable, despite Marxism being only an analytical method, with the changing societal needs identified by contemporary scholars. It is vividly depicted by Hazard:Footnote ³⁷

With the development of socialist jurisprudence and institutions, as well as the formal repeal of all sources of Tsarist law,Footnote ³⁸ the Soviet Union was eventually regarded as having seceded from civil law world.Footnote ³⁹ After the adoption of communist regimes in east and central Europe and the creation of communist China in 1949, most socialist countries chose to model their law on the Soviet pattern, thereby gradually forming a series of socialist jurisdictions. In short, socialist law originated in the creation of the Soviet Union, spread over most of the socialist countries, and was developed by the repeated interpretation of Marxism by socialist scholars to meet the particular conditions of the period. Merryman, having divided contemporary legal traditions into ‘civil law, common law, and socialist law’, observed that socialist reforms imposed ‘certain principles of socialist ideology on existing civil law systems and on the civil law tradition,’ producing ‘a young, vigorous legal tradition that still displays its essentially hybrid nature.’Footnote ⁴⁰ It might be said that this argument is incomplete, for it emphasizes the role of socialist ideology without delving into the more detailed peculiarities of socialist legal systems.Footnote ⁴¹

In Western popular conception, socialist law advocates the use of law and legal institutions to suppress all opposition to the regime, although the elimination of the ruling classes during the early phases of the socialist world quickly and easily evolved into the idea of one socialist nation without antagonistic classes.Footnote ⁴² Theories underpinning the dictatorship of one party, representing one class, have a crucial impact on the present functioning of socialist legal systems, contributing to what has been termed ‘legal nihilism’,Footnote ⁴³ ‘a deprecation of the importance of legal processes’,Footnote ⁴⁴ and ‘politicized law’Footnote ⁴⁵, albeit that legality was increasingly emphasized in socialist jurisdictions. These sceptical opinions about socialist law partly reflect its external characteristics or effects but do not reveal much detail about the particular systems representing socialist law. It is often assumed by Western theorists that relatively coherent Marxist theories can be transformed into a uniform and unique institutional reality in socialist countries but the resulting features are rarely systematically summarized.

B. Essence

David and Brierley advocate that apart from the ideological difference between civil law and socialist law, it seems appropriate to consider socialist laws as detached from the Romano-Germanic or civil family, and as constituting a distinct legal family, because of the very real distances in substance.Footnote ⁴⁶ Bogdan argues that because of a common economic system and the reception of Soviet legal ideas, the socialist legal systems should be regarded an independent family.Footnote ⁴⁷ The Chinese scholar Chu also explored the peculiarities of socialist law founded upon the following notions: as creating a socialist public ownership system; as manifesting the will of a populace led by proletariats; and as a powerful weapon for protecting democracy and controlling enemies.Footnote ⁴⁸ These latter arguments are perhaps still too general to identify and justify a unique and cohesive legal family. Although specific socialist legal systems, ideologically envisaged as subject to continual evolution, have been invented and reinvented over and over again through the process of frequent socialist legal reform, we will nevertheless suggest that the following stable features can be found in socialist law:Footnote ⁴⁹

1. (1) In the constitutional set-up, there is no Montesquieu-like separation of powers. From the socialist perspective based upon Lenin's theory of ‘unified state powers’,Footnote ⁵⁰ the doctrine of the separation of powers was developed by bourgeois States purely to counter the absolutism of monarchy. The socialist division of powers is called ‘democratic centralism’, in that the people exercise State power via a National People's Congress and local people's congresses. The administrative, judicial and procuratorial agencies are created and empowered by the people's congresses to which they are responsible. These agencies are not truly separate but carry out shared or overlapping functions. Owing to the limited numbers of sessions held by people's congresses each year, a permanent delegated committee—a praesidium—is set up to undertake the general responsibilities of people's congresses, particularly legislative work. Additionally, the Council of Ministers is entrusted to enact and issue decrees and regulations pursuant to the legislation in force.Footnote ⁵¹ There is incomplete regulation of the Communist Party; normally, constitutional law, together with other branches of law, stipulates only the general leadership arrangements but the accountability of the Party is not formalized.

2. (2) In property law, most immoveable or real property, especially land, is owned by the State. This is regarded as one of the most typical characteristics and keystone of socialist law,Footnote ⁵² in that Marx differentiated capitalism and socialism by, respectively, private ownership and social ownership. In socialist economic theory, the abolition of private ownership is regarded as the only way to achieve a communist society; Marx argued that State or collective ownership of property is the only way to prevent class antagonisms and exploitation.Footnote ⁵³ Although the notion of complete social ownership has retreated in many socialist countries as a result of governments' desire to stimulate productive initiatives, it has been retained for land and communal enterprises in key areas. The individual can use but not dispose of and change the function of land leased from the State or collectives. The State is entitled to expropriate properties owned or occupied by individuals with ‘corresponding’Footnote ⁵⁴ compensation, the measure of which is less than the market price.

3. (3) In other parts of private law, a high degree of social interventionism and economic collectivization are advocated too. The purpose of socialist law is not to resolve conflicts amongst individuals but to achieve a collectivist society and socialist morality.Footnote ⁵⁵ Thus, compared with other legal families, the influence of the public interest is much greater in private law, although over time the command economy has been moderately loosened in several socialist jurisdictions. Many private rights are abolished or restricted in terms of number and contour, which leads to the intriguing phenomenon that virtually all private law fields can become a matter governed by the public interest if the need arises.Footnote ⁵⁶ The decision-making method in civilian legal systems—deductive reasoning or syllogism—retreats to being a secondary consideration when the omnipresent public interest emerges. Economic codes, a de facto mixture of public law and private law, are normally promulgated in most socialist jurisdictions. National macroscopic economy and State enterprises are subjected to this branch of law in addition to the general private law.Footnote ⁵⁷

4. (4) Public law, especially administrative, dominates the entirety of legal rules.Footnote ⁵⁸ Market mechanisms are taken over to a considerable extent by national and regional plans, which regulate the macroscopic economy and the specific production and circulation of goods respectively.Footnote ⁵⁹ It appears that a number of social areas are regulated by plan and administrative acts instead of private law; for instance, even the number of child births may be regulated by the State plan on the family.Footnote ⁶⁰ Meanwhile the economic and social situation is so complicated that the national and regional plans often change. Therefore, a socialist regime requires a lot of public law in order to guide all areas of life, and administrative law and subordinate regulations are promulgated frequently.Footnote ⁶¹ In addition, socialist countries often have hyper-inflated and powerful bureaucratic institutions, which formalize a series of implementing rules and orders. Those administrative rules often overlap with each other and produce legal conflicts. Thus, enacting new rules to reconcile these problems is necessary, which leads to the legal system becoming more complicated.

5. (5) As regards legal institutions, the justice agencies demonstrate distinguishing functions and features. ‘Remarkable’Footnote ⁶² to Western eyes is the procuratorate which is empowered with general legal supervision rather than simply the prosecution function. Lenin created hierarchical procuratorates to carry out legal supervision,Footnote ⁶³ by virtue of which the procurator can ensure adherence to socialist legality throughout the entire state administration, including the courts and investigatory agencies.Footnote ⁶⁴ If the procuratorate establishes an illegality or irregularity, it may file a complaint against the relevant body which must immediately cease committing the unlawful act until it has considered the matter. If the body ultimately rejects the complaint, the procurator may protest against this refusal to the superior authority of this body and, ultimately, the procurator may bring criminal or civil proceedings against an offender. Additionally, the procuratorate may appeal any judgement of a civil or criminal court or institute proceedings to review the decision of any court, including the Supreme Court if socialist legality is at stake. Also distinctive is the fact that the courts are thought of as schools, functioning to provide education as to socialist law. Because of socialist legality, which rejects formalism, the court must comply with State policy and the political exigencies facing the communist party. The judge, who is not necessarily a lawyer, must be devoted to the fundamental aim of social change as planned by the government, as must people's assessors where they are used. Their task is not to bring an independent voice to court, unlike their Western counterparts, but to see socialist legality working in practice.Footnote ⁶⁵

6. (6) Legal pluralism is prominent and the hierarchy of the resulting rules is not clear. As in civil law systems, most socialist law is formed through deliberate design by authority instead of evolving naturally as in the common law tradition. But, to civilian eyes, socialist law-making manifests incredible experimentation and its development tends to be unordered. True, this might be seen as a primitive pattern of any other modern legal system. However, when looking at the factors which create this floating and unstable legal environment, the fundamental influence is socialist revolutionary ideology and the dynamic notion of socialist legality, which is aimed at rapidly reforming society by plans and directives.Footnote ⁶⁶ In light of capitalist encirclement, the socialist bloc urgently tried to surpass the capitalist countries in terms of political and economic power in order to prove its superiority. This is reflected in frequent but unorganized legislative experiments by numerous levels of authorities, which might not use their powers strictly in accordance with constitutional law. Nevertheless, while legal pluralism begets conflicts amongst the applicable rules, political doctrine prevails over everything else in this process.

7. (7) Laws are normally proposed and approved by the Communist Party prior to being submitted to the legislative body for scrutiny. Because legislating is time-consuming and inconvenient for the direct leadership of the Party, the Party sometimes issues private instructions formulated by the Secretariat, which override the formal legislation on a particular matter. These confidential instructions may not be published, and may be disseminated only within the Party membership or the institutions of government, unless they are put into the formal legislative process. As a result of the existence of these secret instructions, the repeal or amendment of the law is sometimes delayed for many years, even though it has in fact been unused for a long period.Footnote ⁶⁷

C. Impact on China

In the 1920s, Confucian values were already under severe attack from the New Culture Movement initiated by the ‘May Fourth’ left wing intellectuals. Then in 1934, the Nationalist government launched the New Life Movement, the clan-oriented old culture was abolished and a series of rules were enacted to require every individual to undergo cultural transformation.Footnote ⁶⁸ Meanwhile, following the May Fourth movement, Marxist ideas began to spread in China. Two years later, the Communist Party of China (hereafter CCP) was founded by Chen Duxiu. To sweep away feudalism and colonialism, the CCP continuously drew upon and implemented Marxist-Leninist jurisprudence for dealing with anti-revolutionary cases. During the Agrarian Revolutionary War from 1927 to 1937, the CCP set up more than 10 ‘revolutionary bases’ and parallel bureaucratic systems operated alongside a mass campaign for social justice, in which entire rural populations were encouraged to expropriate the land and to exterminate ‘local bullies and bad gentry’.Footnote ⁶⁹ During this period, the embryonic structure of the socialist justice agencies was gradually formed, continuously adapting to revolutionary circumstances, and the traditional legal culture lost its base. It is noticeable that the CCP had already engaged in mimicking the law of the Soviet Union on the basis of its communist ideology.

After the 1949 ‘liberalization’,Footnote ⁷⁰ Communist legal reformers naturally adopted Soviet codes to mould a socialist legal system. The Sino-Soviet alliance and the extensive Soviet presence in China further encouraged extensive transplantation of the Soviet Union legal model.Footnote ⁷¹ From the perspective of Marxist scholars in China, it was meaningless for socialist law to learn anything from Western capitalist law. They argued that the nature of the law depended on the standard of the social economy and that the socialist stage was more advanced than the capitalist stage with its exploitative foundations. It is fair to say that these Marxist scholars differentiated socialist law from capitalist law primarily through political rhetoric. Consequently, the Communist Party soon dismantled the legal agencies of the Nationalist government in the name of the ‘proletariat revolution’, destroying Nationalist legal professions and legal systems, and also discarded liu-fa-quan-shu (Six-law Overall Regulations), which comprised the main codes adopted from civilian law in the Kuomingtang era.

The 1950s and 1960s witnessed the promulgation of some socialist laws and the establishment of a judicial system. Partly because China was more independent from the Soviet Union than the Eastern European socialist countries and Mao Zedong was a charismatic leader, China was relatively free to formulate parts of the legal system through reference to its own experiences in the revolutionary phase and in accordance with Mao's personal views.Footnote ⁷² Nevertheless, the agencies created did reflect the core notions of instrumentalism and class struggle from Marxist-Leninist revolutionary theory. Thus, politics was heavily emphasized as the absolute command in the Anti-rightist Movement (1957–1958) and the Great Leap Forward (1959–1960), while the value of law was entirely denied.Footnote ⁷³ During the anarchy of the Cultural Revolution (1966–1976), China's existing legal system was entirely demolished by the revolutionary movement, with the judicial agencies destroyed. The normal administration of justice was entirely substituted by mobilization campaigns of activists and Red Guard youth. During these episodes the remaining laws could not be applied on account of ‘their close relationship to the political struggles that characterized the period.’Footnote ⁷⁴ Meanwhile, those social customs which were regarded as ‘feudal’—Confucian thinking—or ‘bourgeois’—Western thinking—were swiftly discarded and discouraged by popular justice. However, even though popular justice created legal disorder in practice, the idea of the educational function of social control, which is coherent with the doctrine of socialist legality, was maintained.

In 1979, following the Third Session of the Eleventh Congress of the Chinese Communist Party, China began reconstruction of its legal system. In the fifth plenary of the China People's Committee's second meeting, the National People's Congress (NPC) approved seven significant laws, including Courts' Organizational Law, Procuratorates' Organizational Law, Criminal Law and Criminal Procedure. Inevitably, the legislators, who had been taught in legal courses introduced primarily from the Soviet Union, enacted those codes on the basis of both socialist theories, which were claimed later to include Deng Xiaoping's legal thoughts, and the original drafts of codes from the 1950s and 1960s. From 1978 onwards, massive legislative activities began with a model of the legal system utilizing normal ‘top-down’ administrative control in lieu of the anarchical ‘mass line’ of the Cultural Revolution.Footnote ⁷⁵ In 1997, the Fifteenth Meeting of the CCP established the national strategy of yi-fa zhi-guo (governing the nation in accordance with the law) and jian-she she-hui zhu-yi fa-zhi guo-jia (building a socialist rule of law state).Footnote ⁷⁶ In 1999, the NPC adopted an amendment to the Chinese Constitution incorporating both concepts in article 5. On 10 March, 2003, the chairman of the Praesidium of the National People's Congress, Li Peng, announced that a socialist legal system with Chinese characteristics, which has constitutional law as its core, had been created in rudimentary form. This series of events clearly shows that the Chinese legal system was following the socialist law model.

Moving beyond rhetoric, this draft socialist legal system adopted the bulk of the legal system of the Soviet Union.Footnote ⁷⁷ The common socialist characteristics enumerated above can be found in legislative and legal practice as we shall see when we turn to Chinese criminal procedure. Further, the tenets of classic Marxism have been cited again and again in all fields of theoretical and practical work in social science and law in China, creating a solid theoretical foundation for Chinese legal construction. For instance, Vyshinsky's definition of law is still widely used in legal teaching and research in almost every branch of law in China:Footnote ⁷⁸

Thus, it is not excessive to argue that contemporary Chinese law is the offspring of Soviet law in terms of a widely-recognized ‘geo-political jurisprudence’.Footnote ⁷⁹ At present, with the demise of the Soviet Union and the collapse of the socialist camp in Central and Eastern Europe, it might indeed be argued that the only major member of the socialist law family is China,Footnote ⁸⁰ which should not be ignored because it has the largest population in the world and is wielding an increasingly important influence in the worlds of politics and economics.Footnote ⁸¹ As a living jurisdiction, China's legal system vigorously challenges the view that the socialist legal family has already disappeared. The Preface of the 3^rd edition of Zweigert and Kötz, for example, announces that ‘the “socialist legal family” is dead and buried’ and for that reason the chapters on socialist law have been ‘discard(ed)’.Footnote ⁸² Other contemporary observers argue that in China the ‘socialist market economy’ or ‘socialism with Chinese characteristics’ has actually betrayed the theory of class struggle previously adopted by the Soviet Union and that the disappearance of the latter legal system means that the three major legal systems of the world now comprise civil law, common law and religious law.Footnote ⁸³ In contrast, we would suggest that the undoubtedly diminished world influence of socialist law does not disprove in itself the continuing existence of a socialist legal system in China and, as we shall see, the impact of recent market reforms in China may have been exaggerated.

A. Origin

It would be difficult to identify all the socialist components in Chinese criminal procedure purely through a textual analysis of the Criminal Procedure Law (CPL).Footnote ⁸⁸ Since legal institutions are ‘remarkably path dependant’,Footnote ⁸⁹ what we need to do is to understand the origin of the CPL with particular reference to its Soviet counterpart. China's present CPL (promulgated in 1996) is a slightly amended version of the CPL of 1979. Apparently, the latter was modelled to some extent on a 1963 draft which was derived from earlier experiences with criminal justice during the New Democratic Revolution (1919–1949) and guidance from the Soviet Union after the liberation of China in 1949.Footnote ⁹⁰ In any event, most articles of the 1979 CPL were based on the 1923 Russian Soviet Federative Socialist Republic Criminal Procedure Code, which was valid in Russia until 1958–60.Footnote ⁹¹ For this reason, the Chinese CPL is sometimes seen as being little more than an abridgement of the Russian code.Footnote ⁹² The structure of the Chinese code, resembling its Soviet parent, begins with ‘general provisions’, in which the basic principles and aims are stated, and then there are several chapters concerning pre-trial procedure, trial, appeals and legal supervision. It has also been pointed out that the CPL shares ‘certain important features with the rhetoric and technique of the Soviet codes’.Footnote ⁹³ Thus the CPL bears a ‘strong family resemblance’ to the corresponding Russian Criminal Procedure Code.Footnote ⁹⁴

In addition, the impact on China of Soviet thinking about criminal procedure is significant. In socialist law, criminal procedure is the process used by the agencies working on behalf of the governing class to legitimize and implement punishment in order to maintain order. This view was gradually developed to a peak by Vyshinsky in the Stalinist period, when the administration of justice was rendered mainly by the security agencies and special tribunals.Footnote ⁹⁵ During the de-Stalinization of the Khrushchev era, socialist legality, as a measure to protect the procedural and statutory rights of citizens, was emphasized, while still calling for complete obedience to the state.Footnote ⁹⁶ It is highly significant that Vyshinsky's theory on criminal evidence still has a great impact on China's criminal procedure, albeit it has been critically reviewed by Chinese jurists.Footnote ⁹⁷ This is unsurprising because in the 1950s mainland China was heavily influenced by Soviet law, and numerous Soviet books and codes from Eastern-European socialist countries were translated. Furthermore, many legal students and scholars were sent to the Soviet Union to learn from Soviet law, whilst legal experts from the Soviet Union came to give lectures in China on, inter alia, criminal procedure.Footnote ⁹⁸ Thus, Soviet legal theory has had a comprehensive influence on Chinese criminal procedure. The prevailing conception of class struggle rooted in the Chinese communist State has caused enduring inconsistency between Chinese criminal procedure and western notions of the rule of law, which underlie the principles of many international covenants adopted by the legislature and implemented in the CPL, although whether they are put into practice is another matter.

B. Ideology

Despite much of the socialist rhetoric which appeared in the 1979 CPL being excised by the 1996 amendments,Footnote ⁹⁹ certain ideological terms have been retained. For example, article 1 of the current CPL still contains phrases like ‘punishing crimes, protecting the people, safeguarding State public security and maintaining socialist public order’,Footnote ¹⁰⁰ ‘to safeguard the socialist legal system’ and ‘to guarantee smooth progress of the cause of socialist development’.Footnote ¹⁰¹ In documents related to criminal justice practice and implementation, socialist jargon such as ‘implementing criminal procedure law to guarantee the construction of socialist country’ is also prominent.Footnote ¹⁰² Such language shows in a straightforward way the programmatic and instrumentalist features of the CPL. Another example is that the function of educating the masses is still espoused in criminal procedure law; one of the stated aims of the CPL is to enhance the citizen's awareness of the need to abide by law and to fight vigorously against criminal acts.Footnote ¹⁰³

Additionally, the socialist rhetoric used in political discourse about criminal procedure clearly demonstrates the latter's nature. For instance, on 23^rd February 2008, the influential Criminal Procedure Law Association (CPLA)Footnote ¹⁰⁴ held a meeting in Beijing at which, although the civilian and common law origin of rules and institutions was frequently mentioned, ideology was still reserved as the main issue for discussion. The principal theme of the meeting, echoing the Party's aims and conveying the spirit of the Seventeenth Plenary Meeting of the Communist Party, was how to build up a fair, efficient and authoritative socialist criminal procedure system.Footnote ¹⁰⁵ It should be noted that the version of socialist legality favoured by the Party is aggressively advanced and any alternative versions are repudiated in official speech.Footnote ¹⁰⁶ Further, in the academic world, Marxist Criminal Procedure Studies is an important research subject, the content of which includes ‘the basic Marxist issues and theories with regard to criminal procedure law; the developing principles, legislative base and judicial practice of socialist criminal procedure law and the remaining problems to be solved ….’Footnote ¹⁰⁷

C. Agencies

The criminal justice agencies in China seem peculiar to observers from common law and civil law jurisdictions. It almost goes without saying that the label ‘People’ or ‘Comrades’ precedes the name of all organizations, such as People's Public Security Organ (police), People's Procuratorate and People's Court, and this of course demonstrates the ideological force of socialist legality. The general characteristics of the socialist procuratorate and courts were summarized above and will not be reiterated. However, as regards criminal justice, the procuratorate's supervisory function will be explored here. This responsibility means that as well as participating in the investigation and trial, the procuratorate, unlike its western counterparts, must scrutinize the legality of the trial and supervise the execution of judgments and the activities of correctional institutions.Footnote ¹⁰⁸ As part of its function of judicial supervision, the procuratorate can protest against any illegal or unfounded judicial decisions and ultimately reverse the judgement.Footnote ¹⁰⁹ Thus in criminal procedure, the procuratorate is widely seen as possessing elements of what would be judicial power in the west. Alongside this, it also serves as something of an ombudsman in the criminal justice system and beyond.Footnote ¹¹⁰ Further, there are various joint committees of the procuratorate and judiciary, whose functions are to discuss and determine serious cases and other difficult issues.

The involvement of the people's congresses in criminal justice is not directly prescribed by the CPL, insofar as it is a legislative body. Under the constitutional principle of ‘Democratic Centralism’, people's congresses have a general authority of ‘supervising the government, court and procuratorate at the corresponding level’ pursuant to constitutional lawFootnote ¹¹¹ and organic law.Footnote ¹¹² Consistent with the trait of legal pluralism of socialist law, the local people's congresses, since the 1980s, have been gradually strengthening and elaborating this authority in criminal justiceFootnote ¹¹³ by pioneering a series of creative supervisory measures.Footnote ¹¹⁴ These systems created by local congresses include ping-yi (appraisal) of judicial activities, zhi-fa jian-cha (examination of law enforcement), ge-an jian-du (supervision of individual cases), cuo-an ze-ren zhui-jiu-zhi (the system of ascribing responsibility for misjudged case) and so on.Footnote ¹¹⁵ While ping-yi and zhi-fa jian-cha are chiefly aimed at general work conducted by justice agencies, the other two measures focus on individual cases.Footnote ¹¹⁶ Some of these efforts are partly institutionalized by the relevant article in the Supervision Law.Footnote ¹¹⁷ Nowadays, most local congresses use these supervisory tools to force the criminal justice agencies to correct any misconduct and to punish the relevant personnel. The supervisory power of people's congresses has thus already considerably encroached on the administration of justice so that it is necessary to categorize this legislative body as one of the criminal justice agencies.

Whether the Communist Party itself can be regarded as a criminal procedure agency is a difficult question, because the CPL and other instruments of criminal procedure do not regulate the position of the Party. But in legal practice, the Party does intervene in some criminal cases, particularly politically important and other serious ones, and constitutes a significant subject within the administration of justice.Footnote ¹¹⁸ The merging of political power and the criminal justice agencies is demanded by the theory of ‘Proletarian Democracy’ implemented by the Party. Many cases involving Party members and cadres are not immediately subject to criminal prosecution but rather first to disciplinary measures taken by party committees.Footnote ¹¹⁹ Apart from these purportedly non-legal devices, criminal justice agencies, as segments of the socialist State, will work together in many cases under the leadership of the Party. To expand control of criminal justice agencies and judicial bureaus of government, zheng-fa-wei (the Political and Legislative Affairs Committee of the Party) was created in the 1980s.Footnote ¹²⁰ Based on the prerogative of the Party, the mechanism of handling legal cases through xie-tiao ban-an zhi-du (the system of co-ordination by zheng-fa-wei to deal with cases) was instituted. Courts should report to zheng-fa-wei and request their instructions when they hear especially important cases or when there are serious disagreements between law enforcement agencies. Sometimes, to solve a particular case, a special commission is convened by zheng-fa-wei and a simplified procedure is followed. Thus zheng-fa-wei play a crucial role as the final decision-makers or as coordinators in resolving criminal disputes.

D. Form

Criminal procedure law not only includes the code (CPL), which shares the same form as its counterparts in European continental jurisdictions, but also includes something rather peculiar to Western observers, namely guiding judicial explanations of code provisions (si-fa jie-shi)Footnote ¹²¹ issued by the Supreme Court. This follows the Soviet model whereby the Supreme Court issued elaborate directives to restrict the discretion of the lower courts in decision-making.Footnote ¹²² As a result, Soviet courts were said to ‘exercise a more powerful leadership than their older counterparts in Western Europe.’Footnote ¹²³ Guiding legal explanations are also issued by other criminal justice agencies in China which is perhaps even more peculiar to the Western eye. Examples of such directives are: ‘Criminal Procedure Norms of People's Procuratorate’ enacted by the Supreme People's Procuratorate; and ‘Procedural Regulations for the Public Security Agencies to Handle Criminal Cases’ enacted by the Public Security Ministry.Footnote ¹²⁴ These sources of law are entirely different from Anglo-American judge-made common law, which is created through specific decisions and judgments. Guiding legal explanations are not based on individual judgments in particular cases, but are stipulations with legal effect even beyond the CPL.Footnote ¹²⁵ Thus, such explanations are not seen as emanating from the judicial skills exercised when adjudicators apply the law in cases but are uniquely a type of authority which is relatively independent from legislation and adjudication.Footnote ¹²⁶ Significantly, most guiding legal explanations are constituted in exactly the same form as statutes enacted by the legislative agency. Similar to the CPL, they adopt a legislative structure of general provisions, specific provisions and incidental provisions, as well as chapters, sections, articles, segments and items. In order to coordinate conflicts between guiding explanations issued by different agencies, joint interpretations of them are normally promulgated jointly by the relevant agencies, such as ‘The Regulations of Several Issues related to Applying Criminal Procedure’ issued by the Supreme Court, the Supreme Procuratorate, the Public Security Ministry, the National Public Security Ministry and the Law Committee of People's National Congress Praesidium.Footnote ¹²⁷ This type of exercise reconciles the apparently competing interests of different autonomous agencies at the same level and thus helps to unify the legal system.Footnote ¹²⁸

E. Content

The doctrine of historical materialism creates a strong emphasis on discovering the objective truth in criminal proceedings. Thus, for example, the doctrine of double jeopardy or ne bis in idem is rejected.Footnote ¹²⁹ Consequently, finding the truth has been always been the prevailing value pursued in criminal procedure with much less regard for finality. While the judgment of a court of second instance is announced to be final, nevertheless, there is a specific section of the CPL called ‘trial supervision,’ under which a judgment with the force of res judicata through a concluded appeal may yet be revised by higher courts. Further, a request to reconsider any final judgment, including those issued by the Supreme Court, may be made by the Procuratorate, as explained above, or by the Supreme Court itself. As regards criminal evidence, historical materialism results in the emphasis being on obtaining objective truth rather than satisfying rules of evidential discovery. Article 42 of the CPL refers to evidence in general as bearing on ‘the true circumstances of a case’, and the CPL contains no features of substantive criminal evidence law, eg rules of admissibility, which constrain truth-finding. This demonstrates again the unconstrained pursuit of the truth in criminal procedure.

A. Civilian

The argument that the Chinese legal system is best classified as civilian is dependent on an analysis of the history of Chinese law, thus it is necessary to take a short excursion into this subject, which will also prove useful for the next section. As will be seen below, it is widely claimed by Western scholars that the Far Eastern legal family originated in a means of ordering social life under which the law is used to such a minimal degree that formal rules are virtually eliminated.Footnote ¹³⁰ For instance, the legal rules in Far Eastern/traditional Chinese jurisdictions were claimed by Zweigert and Kötz to be mainly ‘conventions or habits or mores’, creating ‘a life without technical or professional law’.Footnote ¹³¹ Other prominent Western theorists have taken a similar view.Footnote ¹³² It is fair to say that in ancient China, Confucian-based li Footnote ¹³³—the justified social order of superior and inferior, relative and stranger, old and young etc., to which all are encouraged to adhere—were referred to as the basic norms which regulated social relationships. It is also accurate to claim that family-oriented ethics and obligation-based legal structures, which are unlike individualist, rights-oriented, modern, Western conceptions of law, were deeply embedded in the Chinese legal system, until at least the communist take-over. However, the conventional view of the traditional Chinese legal system has underestimated the significant influence of the Legalist tradition in Chinese law.Footnote ¹³⁴

Most discussions of Chinese legal history overlook the period prior to the Han dynasty, thus leading to the one-sided view that ‘traditional Chinese law demonstrates harmonious value’.Footnote ¹³⁵ The structure of the Xia dynasty (2205–1766 BC), which marked the beginnings of China as a State, was built by ‘warfare and the perpetuation of the traditions of the clan elders’Footnote ¹³⁶ and formed on the basis of an agricultural civilization.Footnote ¹³⁷ The following Shang (1765–1123 BC) and Zhou (1122–256 BC) dynasties were also formed by the rise of a single clan, which was internally stratified by its division into kinship groups according to family blood lines.Footnote ¹³⁸ Meanwhile, the strict rules of fa—a notion akin to lawFootnote ¹³⁹—evolved from the different levels of punishment (xing) imposed on the defeated soldiers of other clans. Simultaneously, in order to control an inherently unstable State ruled by a single clan, prohibitions upon disobeying the social order were also merged gradually into fa,Footnote ¹⁴⁰ which finally became organized lü (codified law) in the Qin (770–207 AD) and later dynasties.

During the ‘Spring and Autumn’ Period (770–476 BC) and the Warring States Period (476–221 BC), the warring states within the nascent China drew upon miscellaneous legal philosophies to guide reform, including Confucianism and Legalism which both emerged during that period.Footnote ¹⁴¹ Confucius (and Mencius) advocated rule by virtue instead of punishment while Legalists proposed the unification of punishments as a strategy for the rule of a State. From 135 BC to 1909 AD, the legal system in China was entirely dominated by the Confucian device of social control through moral education and the Legalist method of codified law and criminal sanction, ie by means of li-fa-shuang-xing (which combine li and fa).Footnote ¹⁴² The following comments about Chinese ‘law’ are typical of the Western academic world: ‘a minor role of law’;Footnote ¹⁴³ ‘legislation dealt mainly with administrative and criminal law matters’ and there were ‘a wide variety of forms of conflict-resolutions outside the courts’ due to ‘the teachings of Confucianism’.Footnote ¹⁴⁴

In contrast, law was much more important than such Western scholars claim. For example, the Tang Code, which is the most representative manifestation of traditional Chinese law, covered private law issues such as Family and Marriage.Footnote ¹⁴⁵ Further, current studies have demonstrated that torts were widely established in criminal codes.Footnote ¹⁴⁶ This meant that private law rights were safeguarded by the system of criminal punishments. The fact that law suits were infrequently brought to court was a result not only of Confucian ideals but, more importantly, of the imposition of equivalent punishment on the accuser in the event of an unfavourable judgment.Footnote ¹⁴⁷ Liang draws a classic conclusion about the features of traditional Chinese law:Footnote ¹⁴⁸

Hence, traditional Chinese law—comprising both li and fa—was a flexible instrument used to maintain feudal autocracy and social inequality in a process given substance by personalized punishments. During the 19^th century, this barbarous legal system became an excuse for Western colonists to institute ‘extra-territorial rights’ and the Western influence increased with various invasions from 1900 onwards. Increasingly, after realizing that Chinese traditional law could not bring about the modernization of the State, pre-communist Chinese governments introduced laws and legal doctrines from the European continent (a process which continued after 1949 with the importation of Soviet law). In particular, in 1905, after five generals investigated the Western European world and the legal scholar Shen Jiaben's deliberations, the Qing government decided to enact comprehensive codes extensively following German law, with reference to Japanese law which had earlier done the same.Footnote ¹⁴⁹ According to Zhang, this indicated the collapse of Chinese law as the predominant member of the Far Eastern legal family, leaving traditional Chinese law as a ‘historical system or legacy of legal culture’.Footnote ¹⁵⁰ Following the Revolution of 1911, the Republic of China, (ie in the Kuomingtang era) inherited the advantages of the late Qing government's legal reforms and implemented further codes derived from the Western civil law tradition while also continuing to abolish the traditional legal culture.

It is generally agreed that in civilian systems the major source of law is codification by the legislature. Thus far, we have argued that many Western theorists might perhaps have underestimated the impact of ‘Legalism’ on traditional Chinese law, while overemphasizing the educational function of ‘Confucianism’. True, Confucius advocated that when conflicts arise, the li have to be applied and interpreted to produce a just result and restore social harmony by attempting to persuade everyone to behave in a way consistent with their political and social position and the status of their family. But that represented something of a utopia rather than the reality of Chinese law because Imperial China had an elaborate system of both criminal and civil law which was comparable to anything found in Europe. In fact, it was the Legalist school which constructed the essential framework of the traditional Chinese legal system whereas Confucianism merely rationalised and legitimised the governance of the rulers and the social hierarchy. In reality, lü (codified laws) and ling (the emperor's orders) were the major ingredients in traditional Chinese law. Thus, the adoption of Western-style civilian codes was rooted in the fertile soil of the native Legalist tradition. Consequently, many mainland Chinese scholars regard Chinese law as one type of civil legal system.Footnote ¹⁵¹

Those who would allocate the current Chinese legal system to the civilian family found this claim on the source of law, namely codes—such as the CPL—resembling their civilian counterparts, and the law's conceptual structure.Footnote ¹⁵² One might note in passing that if one were to argue that socialist law cannot be validly separated from civil law because of codification, it would seem that the current tendency towards codification in England and the United States will blur the dichotomy between civil law and common law. Admittedly, contemporary China, like the socialist system of the Soviet Union, enacts codes and employs a civil law approach, namely deduction, to legal reasoning. Further, modern Chinese law, like many socialist systems, manifests (or possibly retains, as the European socialist legal systems certainly did) some of the features of the civil law, such as the division of legal branches and much of the legal terminology. These are regarded as the essence of legal science. For this reason, in some quarters Chinese law is conceived of as an extraordinary type of civil law.Footnote ¹⁵³ In response to this type of claim, the adoption of a single criterion, either for distinguishing civil law and common law or for conflating civil law and socialist law, is both simplistic and potentially misleading.Footnote ¹⁵⁴ This simply ignores the distinctiveness of socialist law and the very strong influence of the socialist Soviet legal tradition upon the development of the Chinese legal system, both of which were extensively discussed above.

Further, any claim that Chinese law is essentially civilian in nature ignores the various peculiar (to civilian eyes) and important forms of rules within the Chinese jurisdiction, such as the guiding legal explanations issued by criminal justice agencies, the sum of which are much more than the articles in the code. While from the early part of the 20^th century onwards Chinese lawyers found it relatively easily to understand the workings of civilian systems owing to the Legalist tradition and the similar vocabularies, sources and methods of reasoning, this is not sufficient to conclude that Chinese law belongs to the civil law system. As a consequence of socialist ideology, what on the surface might appear to be similar to civil law is in practice substantially different underneath.Footnote ¹⁵⁵ For example, we earlier described the function of the ‘procuratorate’ in socialist systems and, in particular, its highly significant role of general legal supervision. This marks it out sharply from the ‘procuratorate’ in civilian systems despite the same terminology being applied to the two institutions. Again, due to ideological differences, the components of the overall system are very distinct. Roman based private law is essential in forming a civil law system whilst dynamic public law dominates the socialist legal system with private law retaining only a vestigial role.

B. Traditional Far Eastern

The second and most popular claim is advanced by Western scholars on the basis of an ‘archaeology of knowledge’,Footnote ¹⁵⁶ emphasizing that continuity in the context of legal culture means that Chinese law has retained, more or less without interruption, its Confucian elements and these are still heavily influential on the present system. David and Brierley emphasize that in the Far East, especially in the case of China, law ‘plays only a minor role’ in regulating society and resolving disputes, these tasks being largely achieved by Confucian ideals.Footnote ¹⁵⁷ Behind the ‘façade’ of codification in the early 20^th century, ‘traditional concepts have persisted … and have continued to dominate the realities of Chinese life’.Footnote ¹⁵⁸ Thus, despite some ‘fundamental differences’ wrought by socialism, ‘in both traditional and modern Communist China … many matters which in the West would find their way into a court of law are resolved outside the law’.Footnote ¹⁵⁹ Similarly, Zweigert and Kötz devote the major part of their discussion of Chinese law to emphasizing traditional features of contemporary Chinese law, even though by the time of the third edition they recognize that there has been profound modernization of the Chinese legal system.Footnote ¹⁶⁰

It is problematic, however, for Western scholars to categorize the current Chinese legal system in a family of Far Eastern law when they may lack adequate knowledge of the first-hand materials.Footnote ¹⁶¹ Insistence on historical continuity may result from perceiving superficial similarities in the function of community pressure as fitting the theoretical mould of li and fa while downplaying the very different, modern context.Footnote ¹⁶² Furthermore, it is not realistic or accurate to argue that present Chinese law represents a traditional legal culture which has not suffered any major discontinuity in recent history. The tremendous social upheavals during the 20^th century in China repeatedly led to the destruction of the contemporaneous legal system. As Li argues, traditional Chinese law ‘would collapse soon after clashing with advanced legal culture’ because of its prior isolation from the outside legal environment and the end of the internal stability of legal governance throughout the feudal period.Footnote ¹⁶³ With the collapse of feudal society, the traditional Chinese legal system lost the foundation of its independent existence.Footnote ¹⁶⁴ The establishment of the People's Republic of China in 1949 brought a ‘major historical disjunction in Chinese society’,Footnote ¹⁶⁵ and a more Soviet-influenced system of socialist law. ‘Popular justice’ conducted on a massive scale at the grassroots level during the Cultural Revolution temporarily broke down even preliminary socialist legality. But it also entirely overthrew the remnants of the legal order and ethics from the feudal tradition. Following the Cultural Revolution, modern China has retained its socialist base in statute and proclaims ‘socialist legality’ as a fundamental strategy for governing the whole country.

More particularly, a number of movements against Confucian li (norms) were advocated by Mao.Footnote ¹⁶⁶ Traditional li have never had substance, technique or form in Chinese law and now have faded away as a cultural influence owing to the frequent ‘revolutions’Footnote ¹⁶⁷ and, more recently, as a result of the market-oriented need to strengthen the rule of law in the setting of globalization and modernization. Confucian ideas about social control referred to by western scholars, such as guan-xi (relationships) in favor of dealing with disputes, cannot be treated as a source of law but merely a potential social custom or one aspect of multiple sub-cultures.Footnote ¹⁶⁸ While li are sometimes approved by politicians intent on appealing to nationalist sentiment, only in the area of family law might they have some residual influence. But with the furtherance of the open door policy and the acceptance of legality, the influence of this culture on ordinary persons can only become increasingly weaker.Footnote ¹⁶⁹

Another example advanced by Western scholars in favor of li is the fact that civil disputes are mostly settled by reconciliation rather than adjudication. But there is a danger of this claim exaggerating the amount of litigation in Western countries,Footnote ¹⁷⁰ which creates the illusion that reconciliation is particularly Chinese. Even if there is a higher proportion of non-judicial settlement of disputes in China, it is mainly caused by a lack of belief in the effectiveness of law-related institutions, especially the courts.Footnote ¹⁷¹ In fact, hostility to the law is not the norm in current China which is illustrated by a dramatic increase in litigation in the Chinese courts in recent years.Footnote ¹⁷²

Whether any Legalist facets in traditional Chinese law have been retained is a question which might also be addressed. It is recognizable that fa developed by the Legalists has some common features with the Soviet-influenced system of socialist law, in that both concede ultimate authority to the rulerFootnote ¹⁷³ and encourage an elaborate system of rules.Footnote ¹⁷⁴ However, there are obvious differences between Legalist fa and socialist law: traditional fa was mixed religion and ethics as well as politics,Footnote ¹⁷⁵ whilst socialist law is dominated only by politics; and Legalist fa was composed mainly of criminal law, whilst socialist law comprises mostly public law and contains numerous administrative rules. But if some Legalist trace does remain, it can only be seen as a ‘cultural preadaptation’ of socialist legality.Footnote ¹⁷⁶ Certainly, the harsh features of traditional legal culture, along with its educational function, have already been reconstituted into a wholly new Soviet-derived socialist model.

As regards criminal procedure in particular, a comparison of the CPL (ignoring the latest amendments) and the Soviet code, might lead one mistakenly to suggest that the distinguishing features of the CPL are inherited from traditional Chinese law. Unfortunately, however, for those who claim that Chinese law belongs to the traditional family of legal systems, there is not enough evidence in the CPL or associated sources to justify this conclusion. For example, Ji suspected that the guiding legal explanations enacted by the supreme criminal justice agencies are derived from the fa-lü da-wen (questions and answers on law) in Chinese history, based on the tradition of yi-li-wei-shi (taking the official as a teacher).Footnote ¹⁷⁷ However, as we saw above, it is obvious that the mechanism of guiding legal explanations was directly imported from the socialist legal system of the Soviet Union into Chinese law.Footnote ¹⁷⁸

In short, it is impossible to demonstrate a relationship between traditional Far Eastern criminal procedure and socialist criminal procedure from a positivist law perspective, owing to the ideological discontinuities in Chinese legal history discussed above. As Lubman observes:Footnote ¹⁷⁹

It is often argued that the Confucian conception of self-discipline, which allegedly permeates much of Chinese legal codes, distances Chinese legal practice from the Western legal process.Footnote ¹⁸⁰ However, as we argued above, with the abandonment in the early 20^th century of li, with its accompanying moralized Chinese criminal procedure and use of values instead of logic,Footnote ¹⁸¹ emphasis was subsequently placed on the rationalization of rules and the professionalism of the criminal justice agencies. Thus, the traditional law influence was in marked decline before China adopted communism. It is worth emphasizing once more that the Legalist legacy, rather than Confucianism, provided a convenient foundation upon which to build a socialist type of criminal procedure.

It is clear that present criminal procedure evolved from the period of the Democratic Revolution guided by Marxist ideologyFootnote ¹⁸² when agencies with socialist characteristics were formed. The family and clan mediation approach to criminal matters, which was formerly an important supplement to official criminal procedure,Footnote ¹⁸³ was weakened by the tremendous legal reforms of the early 20^th century and finally destroyed by socialism. Contrary to Leng's claims, such ‘societal’ (or informal) models of process, reflected in traditional criminal justice, hardly existed after socialist legality was constructed in China.Footnote ¹⁸⁴ For instance, public inequality, particularly ba-yi (eight deliberations) to mitigate sentences on criminals from the royal families or other types of upper classes, occurring in traditional criminal justice was repealed under socialist criminal procedure. In summary, we are not convinced that there are sufficient traces of the Confucian or relationship-based approach remaining in current Chinese criminal procedure to support an argument that, as a branch of law, it belongs to the traditional legal family.

C. Socialist in Rhetoric Only?

This brings us to the third type of view, which is in the nature of a preconception held by committed liberals who are excited by the collapse of the Soviet Union.Footnote ¹⁸⁵ They tend to see claims of a ‘Marxist ideology under the new historical conditions of China’Footnote ¹⁸⁶ or ‘a socialist legal system with Chinese characteristics’Footnote ¹⁸⁷ as a sign that contemporary China has already distanced itself from the socialist model.Footnote ¹⁸⁸ It is perhaps unwise to reach this type of conclusion without looking in more detail at the full panorama of recent legal reform in China. It is evident that the market system is being geared to fit the dictates of the non-State sector but this is under the absolute leadership of the Party which does not grant the legal autonomy to individuals or commercial organizations that Western liberals envisage.Footnote ¹⁸⁹ Further, it is clear that today's legal institutions are shaped mainly by legal transplants from the Soviet Union in earlier decades and the revolutionary experience resulting from Marxist-Leninist ideology. Public ownership, especially of land and large-scale corporations, has been a stubbornly defended position in socialist China because of its ideological importance.

More generally, socialist ideology is firmly preserved in the ‘four cardinal principles’,Footnote ¹⁹⁰ which are the supreme doctrines guiding legislation and legal practice in modern China. These four principles—the socialist road, the dictatorship of the proletariat, the leadership of the Party, and Marxism-Leninist and Maoist philosophy—are omnipresent and sacrosanct in all areas related to law.Footnote ¹⁹¹ Deng's claims that the ‘rule of law’ shall be in lieu of the ‘rule of persons’,Footnote ¹⁹² that ‘law is the highest authority’Footnote ¹⁹³ and that ‘all are equal before the law’,Footnote ¹⁹⁴ are subject to the above political principles. Furthermore, reality demonstrates the large-scale control of private life by the Party. In the public law area, admittedly the law is less guided by class struggle than previously but it is still deeply influenced by the communist ideology of class conflict. Although a change in the concept of law from the ‘knife handle’ to the ‘conductor's baton’Footnote ¹⁹⁵ represents progress towards liberalism, it is still reserved primarily as a tool for the management of the country rather than as a safeguard against the official abuse of power and guarantee of individual rights. Specifically, both in legal texts and in legal practice, the government and its officials see the bulk of law as a device to regulate and direct others. Although liberal ideas are demonstrated by reforming the law in the direction of social regulation away from being purely a class instrument, officials refute the depoliticization of the law. Rather, ‘political stability and social unity’ are seen as the principal aim in implementing legal rules.Footnote ¹⁹⁶ From current observations, it seems likely that in the near future the leaders of China will still be insisting on Deng's doctrines and socialist ideology without any substantial change.Footnote ¹⁹⁷