Abstract
From the previous chapter we can see that the Chinese lawmaking mode is not much communicative. The most important lawmakers, representatives of SCNPC, are nominated exclusively by the presidium of NPC. And NPC as the top legislature are constituted by less than 0.23‰ of the whole population from four indirect elections. The structure of the legislature is a top-down mode. Since the legal reform 1997, Chinese society is a typical pyramid structure also. The few rich persons have more privileges in society and have more ‘power of discourse’. What is the background ideology of this top-down lawmaking mode? In this chapter I will discuss the background themes of Chinese lawmaking.
—子曰: “为政以德,譬如北辰居其所而众星拱之。”
—子曰:“道之以政,齐之以刑,民免而无耻。道之以德,齐之以礼,有耻且格。”
The Master said, ‘He who rules by means of his virtue is like the north polar star, which remains in its place and all the other stars turn towards it.’ ‘If the people are guided by law, and kept in order by punishment, they may try to avoid crime, but have no sense of shame. If they are guided by virtue, and kept in order by the rules of propriety, they will have a sense of shame, and moreover will come to be good.’ Confucius. 2004. The Analects of Confucius. II. 8–10. Trans. Zheng Wei. Fuen Pan and Shaoxia Wen. Shandong: Qi Lu Press.
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Notes
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Zi Xu. 2006. Tian Di Jun Qin Shi Yuan Liu Kao (A study of the origins of the Sky, the Earth, the Emperor, the Parents and the Teacher in Chinese Culture). Journal of Beijing Normal University 2:34.
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Zhong Yu. 2009. Free Confucius and Un-free Socrates. 12. Beijing: China Renmin University Press.
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Confucius. 2004. Wei Zheng. The Analects of Confucius. II. Shandong: Qi Lu Press.
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Confucius. 2004. Yang Huo. The Analects of Confucius. XVII. Shandong: Qi Lu Press.
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Confucius. 2004. Zi Han. The Analects of Confucius. VIIII. Shandong: Qi Lu Press. (When the Master was very ill, Zilu had some discilies to act as retainers to prepare for funeral affairs. During a better spell the Master said, ‘Long has the conduct of Zhong You been deceitful! By pretending to have retainers when I have done, whom do I deceive? Do I deceive Heaven? Moreover, is it not better to die in the hands of you disciples than to die in the hands of retainers? And if I may not have a grand burial, shall I die by the roadside?’).
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Confucius. 2004. Yong Ye. The Analects of Confucius. VI. Shandong: Qi Lu Press.
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Mencius, Teng Wen Gong I.”
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Zhongxin Fan. 2001. The Basic Spirit of the Tradition of Chinese Law. 404. Shandong: Shandong Renmin Publishing House.
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Confucius. 2004. Xue Er. The Analects of Confucius. I. Shandong: Qi Lu Press.
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Hegao Yang. 2000. History of Chinese Legal Thoughts. 51. Beijing: Beijing University.
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Zhongxin Fan. 2001. The Basic Spirit of the Tradition of Chinese Law. 20. Shandong: Shandong Renmin Publishing House.
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Confucius. 2004. Yan Yuan. The Analects of Confucius. I. Shandong: Qi Lu Press.
- 13.
The according punishment system was also known as Zhun Wu Fu Yi Zhi Zui. Regulated since Laws of Jin Dynasty (267 A.D.). Chinese system of kinship concealment, Qin Shu Rong Ying also reflected this ‘water-wave’ structure of practicing humanism.
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Plato. Apology. Trans. Benjamin Jowett. Online text from http://www.gongfa.com/apology.txt. Accessed 02 Feb 2012.
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Mill, John Stuart. 1906. Utilitarianism. 260. Chicago, IL: University of Chicago Press.
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Confucius. 2004. Zi Han. The Analects of Confucius. VIIII. Shandong: Qi Lu Press.
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Ibid.
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Ibid.
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Ibid.
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Confucius. 2004. Xue Er. The Analects of Confucius. I. Shandong:Qi Lu Press.
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Yuanpei Cai. 1985. The Political Works of Cai Yuanpei. 197. Hebei: Hebei Remin Publishing House.
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Yuan Liu. 2008. The Enlightenment of Marxism in China. Journal of Ideological and Theoretical Education 3:36. see also Liqun Zhang. 2008. The Cultural Self-realization of Marxists in May Fourth Era. Journal of Shengli College China University of Petroleum 1:30–32.
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Xinyan Wang. 2008. The Paradigm for Research on Marxist Philosophy in Contemporary China. 9. Beijing: Social Sciences in China.
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The national discourse was caused by an article by Hu Funing. 1978. Practice is the Sole Criterion for Testing Truth. Guangming Daily. May 11. This famous event is also named as a favorable turn in Chinese modern history.
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Zhengli Sun.2005. Studies on Contemporary Chinese Marxism. Journal of Henan University (Social Science) 4:6–8.
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Zhen Li. 2009. A Study of Contemporary Chinese Marxism CPC Ideology. Journal of Xue Xiao Dang Jian Yu Si Xiang Jiao Yu 9:14–26.
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Xiaomei Huang and Zelin Lei. 2008. Issues of Chinese Marxism Philosophy since Thirty Years of Enforcing the Opening and Reform. Journal of Zhongnan University of Economics and Law Yanjiusheng 3:91–92. See also Yuepeng Ren. 2009. Introduction of Western Marxism, in Habeimasi: Law as Communication. 1–15. Heilongjiang: Heilongjiang University Press.
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Laigui Feng. 2008. From the Localization of Marxism in China to Chinese Marxism—the Transformation of the Research Visual Angle and the Transfer of the Focal Point of Research. Journal of Shangrao Normal College 4:1.
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The Speech of Hu Jingtao on 28 July 2003 at the 17th CPC national congress. http://news.xinhuanet.com/newscenter/2007-10/24/content_6938568_2.htm. Accessed 02 Feb 2012.
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Xiaoping Deng. 1993. Works of Xiaoping Deng 2. 278. Beijing: People’s Publishing House.
- 31.
Zedong Mao. 1991. Works of Zedong Mao 2. 533–534. Beijing: People’s Publishing House. also see Xinyan Wang. 2008. The Paradigm for Research on Marxist Philosophy in Contemporary China. 5. Beijing: Social Sciences in China.
- 32.
See Rio-Tinto case reports on China Daily and BBC: http://www.chinadaily.com.cn/cndy/2009-08/12/content_8558038.htm; and http://www.bbc.co.uk/worldservice/learningenglish/language/wordsinthenews/2009/07/090710_witn_iron_page.shtml. Accessed 02 Feb 2012.
- 33.
See reports from The Australian and CNN:
http://www.theaustralian.news.com.au/business/story/0,,25754321-36418,00.html. And
http://edition.cnn.com/2009/WORLD/asiapcf/08/11/china.riotinto/index.html?iref=newssearch. Accessed 02 Feb 2012.
- 34.
Since 2005, the Chinese legislature has been working on legislations on anti-corruption. In July 8 2007, the supreme court and supreme procuratorate published an official interpretation on official bribery and regulated specified bribery crimes with ‘people with special relationships with the officers’.
- 35.
‘Red-headline documents’ refer to the official documents of the Chinese Communist Party because their titles are always written in red. Translated by Peng He. See the original Chinese literature of Tao Yang. 2008. New Lawyers Law and the Hidden Rules. Xinjing News. June 02. Also see Zhibo Hai. 2008. Why is Law Less Useful Than Documents? Procuratorial Daily. June 11.
- 36.
‘The Constitution has the highest legal authority, and no national law, administrative regulation, local decree, autonomous decree and special decree, or administrative or local rule may contravene the Constitution.’; ‘National law has higher legal authority than administrative regulations, local decrees and administrative or local rules. Administrative regulations have higher legal authority than local decrees and administrative or local rules.’; ‘A local decree has higher legal authority than local rules issued by governments at the same level and lower level. Local rules enacted by the People’s Government of a province or autonomous region have higher legal authority than local rules enacted by the People’s Government of a major city located in its jurisdiction.’ (LLC2000, articles 78, 79, and 80).
- 37.
The Constitution of the People’s Republic of China 1982.
- 38.
See Article 5 of the Constitution.
- 39.
See Article 78,79, and 80 of LLC2000: ‘The Constitution has the highest legal authority, and no national law, administrative regulation, local decree, autonomous decree and special decree, or administrative or local rule may contravene the Constitution.’; ‘National law has higher legal authority than administrative regulations, local decrees and administrative or local rules. Administrative regulations have higher legal authority than local decrees and administrative or local rules.’; ‘A local decree has higher legal authority than local rules issued by governments at the same level and lower level. Local rules enacted by the People’s Government of a province or autonomous region have higher legal authority than local rules enacted by the People’s Government of a major city located in its jurisdiction.’
- 40.
Zenon Bankowski. 2001. Living Lawfully-Love in Law and Law in Love. 186. Dordrecht: Kluwer.
- 41.
Ibid.
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He, P. (2014). The Legitimation of Chinese Lawmaking (I). In: Chinese Lawmaking: From Non-communicative to Communicative. Understanding China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39507-9_3
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