The Path to Legal Reform Without Revolution
贺卫方按：这是陆思礼教授在他于《华尔街日报》网站博客上发表的文章，转载在这里，供参考。链接：The link of the Lubman column is: http://blogs.wsj.com/chinarealtime/tag/stanley-lubman
As China’s new generation of leaders surveys the work ahead of them, one of the most difficult questions they face is how to narrow the wide chasm between rhetoric and reality when it comes to rule of law. Few people have pushed for the narrowing of that gap as persuasively or courageously as He Weifang, an outspoken and well-known legal scholar at the Beijing University Law School who has been urging legal reform for almost 15 years through journals, the media and public lectures. Now, for the first time, English speakers have the pleasure of being able to access He’s work in a single, carefully translated volume.
“In the Name of Justice: Striving for the Rule of Law in China,” an assembly of some of He Weifang’s most important articles and lectures, has just been published by the Brookings Institution in Washington DC, where He and his book were hailed in a conference of China specialists at the end of last month.
An excellent introduction by Professor Cheng Li of Brookings describes He’s career, in the course of which he has frequently been subjected to political pressure and threats to his teaching position. In 2009, for example, he was punished for his views by being sent from Beijing to a small college in Xinjiang in China’s far west. He returned to Beijing two years later, and has continued to maintain his strong but measured campaign for the rule of law.
He was one of the early public critics of the campaign initiated by fallen Communist Party star Bo Xilai, who as Party Secretary in Chongqing revived Maoist mobilizational tactics and the fervor of the Cultural Revolution while launching a stormy police campaign allegedly against organized crime. The campaign led to the arrests of thousands of people. Since then, accusations by some about their treatment by the police include torture, incarceration in labor camps, and confiscations of property; a small number were executed. He publicly and vigorously criticized these actions and actively participated in a group organized to defend Li Zhuang, a lawyer who represented one of the businessman targeted by Bo’s campaign in a prosecution severely marred by gross illegalities.
The book is divided into chapters with essays on judicial independence, constitutionalism, legal education and professionalization, protection of free speech, and protection of human rights. They combine insights into traditional and Western legal history and institutions to assist in dissecting the control and manipulation of legal institutions by the Chinese Communist Party (CCP). Professor He’s scholarship, as well as his insights into the current situation of Chinese institutions, buttress his suggestions for measures that could be undertaken to loosen the Party’s grasp and strengthen the rule of law.
At the Brookings conference, He outlined essential aspects of his views. He noted the influence of traditional Chinese law before 1911: Incomplete codes were applied not by distinct courts, but by officials untrained in law who applied “a combination of law, moral guidelines, and community customs, none of which were that different from each other.” On the eve of revolution, lacking a legal tradition with courts, judges and lawyers, China was a legal vacuum that was soon to be filled by a Communist Party-state that would use law as a tool for policy implementation.
Moving to the present, in contrast to the CCPs’ domination of law, He notes the increasing consciousness of law on the part of Chinese citizens, the inclination of the legal profession to look to the West for understanding how the rule of law should be effected, and the need for reform.
He calls for the “deconstruction of socialist ideology” in order to give way to a view of governance marked by the separation of powers, which would constrict the CCP’s current grasp on state institutions. He and Professor Xu Xin of the Beijing Institute of Technology have set forth basic principles of legal reform that are discussed throughout the book and which he summarized in his address to the Brookings conference. In order for China to achieve legal reform without revolution, the two argue that:
· Leadership over judicial reform should be given to a special committee of the National People’s Congress;
· The presidents of Chinese courts should not be chosen by CCP officials as they are now, but by an independent selection committee;
· There should be no CCP interference in the outcome of cases in the courts, and there should be no CCP cells in courts or law firms;
· The powers over judicial outcomes exercised by “political-legal commissions” composed of senior representatives of the courts, police and prosecutors must be reduced;
· A constitutional review agency or court should be established to measure official conduct against standards in the Constitution.
These measures, He insists, would help establish an independent judicial system.
He understands very well that these reforms cannot be undertaken quickly and must be supported by the Chinese leadership. But he thinks that the leadership is conscious of the need for reform—which may be proven to be supported by some recent hints from leaders after the 18th Party Congress. At the same time, there is no consensus on where Chinese society is headed. A theoretical foundation is needed for further reform, and He calls for intensive work to identify the possible ingredients of such a foundation, perhaps beginning with measures to end collective ownership of land in favor of privatization of property.
He urges, too, that measures be taken to increase freedom of speech and the press.
In the face of the current authoritarianism of the CCP’s rule, He may seem to be an optimistic visionary. But both in his writing and in person, he is temperate while asserting powerful ideas and deeply insightful views about the cultural and political barriers to meaningful legal reform. As He pursues his personal crusade with determination, he exudes a remarkable cheerfulness and presents an inspiration to his students and the public at large. His book provides a persuasive and clearly written guide for foreigners who are willing to try to understand China through the lens of Chinese law.
Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law. He is the author of “Bird in a Cage: Legal Reform in China After Mao” (Stanford University Press, 1999) and editor of “The Evolution of Law Reform in China: An Uncertain Path” (Elgar, 2012).