Introduction
J. Chen
Post-Mao legal reforms started with a ‘modernised’ traditional approach to law, that is, law was seen as a political tool for defined purposes (Chen 2016a, 20-24).
It was modernised because it was coded in a Marxist language (Chen 2016a, 54-58) and, further, post-Mao reforms were built, indirectly, upon the initial Qing and KMT legal reforms at the beginning of the 20th century that first introduced Western law and legal systems into China. These reforms developed rapidly. In a short period of some 20 years, not only the lawless days of the ‘Cultural Revolution’ (1966-1976) were gone, but a new legal system was firmly established. By 2011, China had declared to the world that a socialist system of laws with Chinese characteristics had been established in China (Information Office of the State Council 2011, 1-2).Importantly, by the early 21st century, Chinese law, in its form, has been transformed into Western law based on a Continental civil law model, with mixed external influences, operating in a very different political, social and economic context. More substantially, the heavy utilitarian and instrumentalist attitude towards law that was clearly evidenced in the greater part of legal modernisation was losing its grip in China and increasingly being abandoned. Even if law might still be seen as an instrument, it was increasingly seen as such for justice, fairness and equality, not merely for creating and maintaining social stability conducive to economic development. In short, substantive development in post-Mao China, especially since 1996, suggested that there had been signs of a transformation—tentative and hesitant though it was— from ‘rule by law' to ‘rule of law' in terms of legal development, and that the Chinese authorities’ attitude towards law was much less purely instrumentalist in nature (Chen 2007).
While scholars in and outside China welcomed the significant progress in establishing a functional legal system in China, the weaknesses and major flaws of Chinese legal development and reforms were also well recognised.
Fundamentally, Chinese law and the Chinese legal system continued to be ambiguous about many of the essential elements required for the rule of law, such as the separation of powers, checks and balances, and judicial independence. Most Chinese scholars agreed that political reform was seriously lagging behind economic and legal reforms and that China needed some serious political reforms to further stimulate legal reforms so as to establish a genuine rule of law in China (Guo, Li, and Hao 1998, ι). Indeed, with the exception of the WTO-induced reforms in civil and commercial law, legal development began to lose its momentum after some 25 years of rapid development. This led some scholars to describe the 10 years under the Hu-Wen leadership (20022012) as either the lost 10 years or as a period of regression (Minzner 2011).The Party decision to deepen political and economic reforms that scholars and reformers had hoped for—in fact two decisions—came about in 2013/2014 (2013 Party Decision; 2014 Party Decision). Although these decisions were short of inspiration and expectations for political and constitutional reforms, they did contain many measures that were significant for improving the actual operation of the law and the legal system in China and, in this sense, they effectively re-launched legal reforms in China (Chen 2015; Beauchamp-Mustafaga 2014). However, it did not take very long for many scholars to see dark clouds on the horizon: legal reform would be a very strictly controlled process, oriented towards consolidating Party leadership in all spheres of the State (Chen 2016b). Increasingly, the official rejection of constitutionalism, separation of powers, checks and balances, and judicial independence is no longer rhetoric, but firm and explicit without any qualification. The demand for direct and absolute Party leadership, strict control over political ideologies, and the safeguard of the Party’s core leadership makes it abundantly clear that they are not negotiable and form part of the State governance of the ‘New Era’.1
So, what is the future of Chinese law and Chinese legal reforms in Xi’s ‘New Era’? Are we witnessing the return of legal instrumentalism to China? Even more challengingly, we must ask, could a rule of law exist in the absence of checks and balances, judicial independence, and the separation of the Party from State? And this is no longer a purely theoretical question; it is a question about the Chinese governance model that is being promoted internationally.2
This paper examines the alarming, emerging trends of retreat from politico-legal reforms that were initially launched in 1978.