The Judicialisation of Politics and the Politicisation of the Judiciary in China (1978-2005)

Abstract

This paper deals with the interactions between law and politics in the particular context of a post-revolutionary socialist regime embarked on a wide-ranging process of reforms — China since the end of Mao era. This theme intersects with a number of others which are essential to an understanding of Chinese society today : socio-economic changes and their relation to legality, the interactions between judicial transition and political changes, and, more systematically, the prospects for democracy. The time-frame of this paper includes a long period, which, for reasons of clarity, we will take as being from 1978 (at the time of the adoption of the policy of "reform and opening up", gaige kaifang) to the present day, which is to say more than twenty-five of the fifty-four years of the existence of the People’s Republic of China (PRC), which was founded in 1949. One will argue that judicial reform in China has in fact constituted as much a technical response as a political response, unexpected after the violent events of Maoism, to the fragmentation of the Party State. Secondly, the contemporary forms of judicialisation of politics have been mostly institutionalised a posteriori in relation to social and judicial practice. Thirdly, since the mid-1990s both the growing differentiation between institutions and the professionalisation and networking (both national and international) of legal practitioners have made possible better anticipation of the stages of the modernisation of the legal system, and above all the preservation of its autonomy in relation to other reform programmes embarked on by Beijing. Lastly, we will see that the foundations of the legal-rational State in China are undergoing rapid change, and that a continuously increasing number of individuals are contributing to their definition. All this is evidence, in our eyes, of a historical process of construction of a legal State, but without any historical determinism as to the future form of a Rule of Law which conforms to the canons of the historical scheme. Indeed, some Chinese school of historians of the law suggest an inversion of the way in which the institutional modernisation of China has been conceived since the end of the 19th century. The classical adage to serve as the basis for reform should become: "Western knowledge as essence, Chinese knowledge as use", not the opposite.

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