22 May 2013

上课: The Dark Ages, the Black Abyss or 1949-1978 China

All professors of Chinese Law – or at least those giving a general overview of the system – preface their forays with an allusion to the dark abyss from which the modern Chinese law sprung. 

Okay, so perhaps I am being a bit melodramatic. Constitutional Law and the Law of Marriage did exist between the years of 1949-1978. In fact, Constitutional Law was an active project during those years. The National People’s Congress has enacted four Constitutions since 1949: the 1954 Constitution, the 1975 Constitution and the 1978 Constitution all leading up to the current working Constitution of 1982, which has been amended itself four times (in 1988, 1993, 1998, and 2004). 

However, the legal system itself was essentially outlawed (paradox if there ever was one). Political decisions were not required to comply with the Constitution and government actions were often taken outside areas regulated by the latter. Furthermore, the courts themselves were more puppets up for show than anything else. Legal education and the legal profession were destroyed. Without legal experts or lawyers or judges, there was no one to advocate a rational formal system or, in fact, draft one. 

In 1979, the siege ended and a scramble to set up a functioning legal system initiated the reform and opening up of China. The primary focus was the economy. The method, an organized madness: laws were issued for specific topics and locations, drafted on a trial basis and then redrafted later. Efforts were made to professionalize and rationalize the judiciary and legal profession after nearly thirty years without a formal legal education system. 

The darkness before the birth of the modern legal system has important repercussions. Mediation is an important way to handle civil disputes, a legal education is not a requirement to take the bar, and the legislature, not the Constitution, reigns supreme. 

Let it not be said that legal history is ever irrelevant.

KEYWORDS: Chinese Legal Culture, Chinese History, Constitutional Law, Opening Up

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