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This book examines China’s striving for a constitutional order in the 20th century from comparative, historical, and theoretical perspectives. Through a comprehensive study of six major constitutional reforms experienced by China in the last century, Shiping Hua explores pragmatism, instrumentalism, statism, and favoritism as the key features of the Chinese legal culture. Demonstrating that these characteristics have roots in China’s ancient past and coincide with modern communist legal theory, it argues that Chinese legal culture has greatly impacted upon the country’s move to modernize its legal system. By analyzing key constitutional periods in China’s history, this book also evaluates patterns that can be used to better comprehend not only China’s present legal reform but its future legal developments too. As the first book to examine how the Chinese legal culture has affected constitutional reform in the 20th century, Chinese Legal Culture and Constitutional Order will be useful to students and scholars of Asian and constitutional law, as well as Chinese Studies more generally. Winner of the 2019 ACPSS (Association of Chinese Professors of Social Sciences in the United States) Best Scholarly Publication Award for Original Research.
English translation of materials from a workshop on Confucian constitutionalism in May 2010 at the City University of Hong Kong.
As Hong Kong enters its third year under Chinese rule, the prognosis for the common law remains uncertain. Can the improbable doctrine of 'one country, two systems' be made to work? Will the political controversies that continue to bedevil the territory u
After overthrowing the Mongol Yuan dynasty, Zhu Yuanzhang, the founder of the Ming dynasty (1368-1644), proclaimed that he had obtained the Mandate of Heaven (Tianming), enabling establishment of a spiritual orientation and social agenda for China. Zhu, emperor during the Ming’s Hongwu reign period, launched a series of social programs to rebuild the empire and define Chinese cultural identity. To promote its reform programs, the Ming imperial court issued a series of legal documents, culminating in The Great Ming Code (Da Ming lu), which supported China’s legal system until the Ming was overthrown and also served as the basis of the legal code of the following dynasty, the Qing (1644-1911). This companion volume to Jiang Yonglin’s translation of The Great Ming Code (2005) analyzes the thought underlying the imperial legal code. Was the concept of the Mandate of Heaven merely a tool manipulated by the ruling elite to justify state power, or was it essential to their belief system and to the intellectual foundation of legal culture? What role did law play in the imperial effort to carry out the social reform programs? Jiang addresses these questions by examining the transformative role of the Code in educating the people about the Mandate of Heaven. The Code served as a cosmic instrument and moral textbook to ensure “all under Heaven” were aligned with the cosmic order. By promoting, regulating, and prohibiting categories of ritual behavior, the intent of the Code was to provide spiritual guidance to Chinese subjects, as well as to acquire political legitimacy. The Code also obligated officials to obey the supreme authority of the emperor, to observe filial behavior toward parents, to care for the welfare of the masses, and to maintain harmonious relationships with deities. This set of regulations made officials the representatives of the Son of Heaven in mediating between the spiritual and mundane worlds and in governing the human realm. This study challenges the conventional assumption that law in premodern China was used merely as an arm of the state to maintain social control and as a secular tool to exercise naked power. Based on a holistic approach, Jiang argues that the Ming ruling elite envisioned the cosmos as an integrated unit; they saw law, religion, and political power as intertwined, remarkably different from the “modern” compartmentalized worldview. In serving as a cosmic instrument to manifest the Mandate of Heaven, The Great Ming Code represented a powerful religious effort to educate the masses and transform society.
How was the vast ancient Chinese empire brought together and effectively ruled? What are the historical origins of the resilience of contemporary China's political system? In The Constitution of Ancient China, Su Li, China's most influential legal theorist, examines the ways in which a series of fundamental institutions, rather than a supreme legal code upholding the laws of the land, evolved and coalesced into an effective constitution. Arguing that a constitution is an institutional response to a set of issues particular to a specific society, Su Li demonstrates how China unified a vast territory, diverse cultures, and elites from different backgrounds into a whole. He delves into such areas as uniform weights and measurements, the standardization of Chinese characters, and the building of the Great Wall. The book includes commentaries by four leading Chinese scholars in law, philosophy, and intellectual history—Wang Hui, Liu Han, Wu Fei, and Zhao Xiaoli—who share Su Li's ambition to explain the resilience of ancient China's political system but who contend that he overstates functionalist dimensions while downplaying the symbolic. Exploring why China has endured as one political entity for over two thousand years, The Constitution of Ancient China will be essential reading for anyone interested in understanding the institutional legacy of the Chinese empire.
Democracy and the Rule of Law in China is intended to make available to English-language readers debates among prominent Chinese intellectuals and academics over issues of political, constitutional, and legal reform; modes of governance in urban and rural China; and culture and cultural policy. China’s unprecedented economic development following the implementation of the Reform and Opening policy has drawn widespread international attention; yet accompanying political developments have been largely overlooked. A compilation of the works of twelve contemporary Chinese scholars, this book offers unique insights into the wealth of viewpoints and diversity of issues influencing and defining the development of democracy and the rule of law in China. Based on theoretical and practical analyses of China’s political development to date, the authors propose specific models for the expansion of democratic mechanisms already present in the current political structure. Exploring topics ranging from autonomous village governance and grassroots elections to constitutional reform and judicial independence, the authors are unified on one point: China’s political development must pursue a gradual, distinctly-Chinese course in order to promote social stability, continued economic advancement, and the establishment of a socialist democratic society.
China has changed and the continuing changes have not just been about economic development. Among the many transformations there has been another quiet, peaceful, and largely successful (but far from perfect) ‘revolution’ in the area of law, whose deficiencies have been more often mercilessly examined and documented than have its historical achievements and significance. This legal ‘revolution’ is the subject matter of the present book. Like the previous edition in 2008, it examines the historical and politico-economic context in which Chinese law has developed and transformed, focusing on the underlying factors and justifications for the changes. It attempts to sketch the main trends in legal modernisation in China, offering an outline of the principal features of contemporary Chinese law and a clearer understanding of its nature from a developmental perspective. It provides comprehensive coverage of topics: ‘legal culture’ and modern law reform, constitutional law, legal institutions, law-making, administrative law, criminal law, criminal procedure law, civil law, property, family law, contracts, torts, law on business entities, securities, bankruptcy, intellectual property, law on foreign investment and trade, Chinese investment overseas, dispute settlement and implementation of law. Fully revised, updated and considerably expanded, this edition of Chinese Law: Context and Transformation is a valuable and important resource for researchers, policy-makers and teachers alike.
China's legal system is vast and complex, and robust scholarship on the subject is difficult to obtain. Inside China's Legal System provides readers with a comprehensive look at the system including how it works in practice, theoretical and historical underpinnings, and how it might evolve. The first section of the book explains the Communist Party's utilitarian approach to law: rule by law. The second section discusses Confucian and Legalist views on morality, law and punishment, and the influence such traditional Chinese thinking has on contemporary Chinese law. The third section focuses on the roles of key players (including judges, prosecutors, lawyers, and legal academics) in the Chinese legal system. The fourth section offers Chinese legal case studies in civil, criminal, administrative, and international law. The book concludes with a comparison of China's fundamental governing and legal principles with those of the United States, in such areas as checks and balances, separation of powers, and due process. - Uses extensive legal materials and historical documents generally unavailable to Western based academics - Gives insider knowledge, including first-hand experience teaching law, and close involvement with judges, attorneys, and law professors in China - Analyses legal issues from historical and cultural perspectives holistically
Building the Rule of Law in China explores the idea that China needs a more globalized and diversified vision for the science of law, presenting the need to think differently from the two major western mainstream legal cultures, the Anglo-American and the continental systems. Other globalized, universalized, and diversified models and experiences in the rule of law from diverse civilizations have much to offer China. Through learning from the strengths exhibited by systems in countries with a very developed and well-organized rule of law, and absorbing essential aspects from different countries, China might be well positioned to promote the development of the rule of law in a robust and comprehensive manner. This book explores the topic from several perspectives, giving the reader an up-to-date resource on the ever-evolving vision for the science of law in China. Explores the situation of rule of law in China as it currently stands Presents a case that China must look beyond the two western systems of law for a more globalized vision Gives analysis on the contemporary situation, and insight into the near future Presents a particular perspective on the rule of law in China by a scholar closely involved with its actual development Translates into English, providing a new and valuable perspective to an English speaking readership
This book, based on the theory of Marxism-Leninism, aims to study the essence, content and features of various legal systems in China in different historical periods, as well as the rules of the development of Chinese legal systems. It effectively combines classic analysis and historical analysis to probe historical facts and elaborate the historical role of the legal system, revealing both the general and the specific rules of the development of China s legal system on the basis of the existing relevant research. The subject matter is of abundant theoretical and practical significance, as it enriches Marxist legal studies, deepens readers’ understanding of China s legal civilization and offers guiding principles for the creation of socialist legal systems with Chinese characteristics. It discusses the trends in thinking on the reconstruction of the legal system; changing laws; western legal culture; the legal system in the period of westernization, constitution and reform; preparation for constitutionalism; modification of the law during the late Qing Dynasty; criminal, civil and commercial legislation; and judicial reforms in the modern era as well as the various ups and downs and cases of malconduct after the founding of the People’s Republic of China