Legalism And Leninism In China’s Constitutional History


The National People’s Convention met in the Great Hall of National Central University in Nanjing on May 5, 1931. Seven days later the Convention adopted the Provisional Constitution (photo by unknown author, via Wikimedia Commons)

When the Qing Dynasty was overthrown in 1911 and the Republic of China (ROC) was proclaimed, the revolutionaries led by Sun Yat-sen embarked on an ambitious experiment to modernise the country according to liberal Western ideals of democracy, human rights and division of powers. The new Republican government issued a Provisional Constitution which guaranteed progressive democratic rights, including judicial independence. However, after the first elections held in 1913, general Yuan Shikai unlawfully seized power and suppressed the elected parliamentary majority. Sun Yat-sen and his party, the Guomindang, were forced into underground opposition. When Yuan died in 1916, the central government fell apart, and regional warlords created personal fiefdoms in which they ruled like monarchs.

The 1912 Constitution was inspired by the ideals of the American and French revolutions. But the failure of democracy, the repression suffered at the hands of Yuan Shikai and the warlords, and the threat of foreign imperialism convinced Sun Yat-sen that democracy in China was unattainable as a short-term goal. He observed with keen interest the events of the Russian revolution, and the triumph of the Communists led by Lenin seemed to him an example of a revolutionary party that had succeeded where the Guomindang had failed. Sun asked for Soviet help, and Russian advisers were sent to China to reorganise the Guomindang on the basis of Leninist principles. Continue reading

Legalist Tradition And Criminal Law – Republic Of China vs People’s Republic Of China


The original Constitutional Drafting Committee of the newly founded Republic of China, photographed on the steps of the Temple of Heaven in Beijing, where the Draft was completed in 1913 (photo by Rowanwindwhistler, CC BY-SA 3.0 via Wikimedia Commons)

In a previous post we have demonstrated that the Constitution of the People’s Republic of China (PRC) contains fundamental elements which are consistent with, if not directly derived from, Legalist principles. In this chapter we shall analyse and compare the Legalist elements contained in the criminal codes of the Republic of China (ROC) and of the PRC.

Legalism and the Criminal Code of the Republic of China

In 1911 the Xinhai Revolution overthrew the Qing Dynasty which had ruled China for over 260 years. On January 1st, 1912, the leader of the insurgents, Sun Yat-sen, proclaimed the foundation of the Republic of China (ROC). On March 11 the government promulgated the Provisional Constitution of the Republic of China (中華民國臨時约法). The Constitution embodied Sun’s political ideals, which he later enshrined in the Three Principles of the People. Sun had been educated in the United States and his worldview had been shaped by the three major Western ideologies of the 18th, 19th and early 20th century, namely nationalism, democracy and socialism. In his Three Principles, Sun tried to synthesize these three political currents in order to revitalise and strengthen China.

The Provisional ROC Constitution was heavily influenced by Western liberal democratic ideals, most especially the principle of free popular elections, of protection of individual freedoms and rights, and of division of powers, including judicial independence (法官獨立). Article 51 stated: “Higher government authorities shall not interfere with the independent work of judges” (法官獨立審判不受上級官廳之干涉). Continue reading

Law In Post-Mao China: Confucianism, Legalism, Imperial Traditions


The Great Hall of the People, Beijing (photo by Thomas.fanghaenel, licenced under CC BY-SA 3.0 via Wikipedia Commons)

In the previous post we have described the similarities and differences between Maoism and Legalism, and in particular we have shown the parallels between Maoist and Legalist doctrines regarding the establishment of an autocratic, centralised state. Moreover, we have demonstrated that Mao Zedong rejected Confucian values, which he viewed as “reactionary”. In this post we will show how the People’s Republic of China (PRC) in the post-Maoist era has preserved elements of Legalism, Leninism and of the imperial legal system; at the same time, however, it has also rediscovered Confucianism as a more humane and family-oriented ideology which helped the Communist state overcome the brutality and the excesses of Maoist class struggle. Beijing’s attempt at combining Legalism, Leninism, Maoism and ancient imperial traditions has created a state with ideologically inconsistent and weak foundations. Yet at the same time the Chinese Communist Party (CCP) has succeeded in preserving power and consensus exactly because it draws upon such broad and various traditions.

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Mao Zedong, Legalism and Confucianism – Similarities And Differences


Red guards during the Cultural Revolution – Image by Belinsky (Public domain) via Wikimedia Commons

When Mao Zedong proclaimed the founding of the People’s Republic of China (PRC) on October 1, 1949, the Chinese Communist Party (CCP) stood before the tremendous task of rebuilding the state on the basis of Soviet-style Communist principles. Yet despite their desire to create a new China, Communist leaders drew on old political and social traditions which brought about a hybrid of ancient imperial policies and Communist doctrines. Other Chinese states, such as the Republic of China (ROC) on Taiwan as well as Singapore, have also incorporated traditional values and ideas into their state-building process. It is the purpose of the present and the following articles to show how the two most important ancient schools of thought – Legalism and Confucianism– have influenced the legal systems of contemporary states in the Chinese cultural sphere. First, we shall analyze the relationship between Maoism and Legalism; in the subsequent posts, we shall examine the rediscovery of Confucianism and the blending of Confucianism and Legalism in post-Mao China; and in the last post, we will see how the ROC and Singapore have assimilated and adapted Confucian tenets.

Mao Zedong And Legalism

According to Fu Zhengyuan, the” transplantation of Marxism-Leninism into the Chinese political tradition was a smooth and seamless process”. Numerous Western scholars, too, have noted how the political traditions of imperial China created a fertile ground for Communist ideology. In particular, the ancient philosophy of Legalism, with its emphasis on state power, wealth and strength, appears to have facilitated the creation of a totalitarian, centralised and oppressive government. Fu goes as far as to argue that the PRC is the realisation of a Legalist “utopia” (Zhengyuan Fu: China’s Legalists: The Earliest Totalitarians and Their Art of Ruling, 1996, p. 128).

As we have explained in a previous post, the Legalist school was a philosophy that aimed at creating a strong, rich and powerful state under the leadership of an absolute monarch. Legalism emphasized the establishment of a comprehensive legal system in order to rule the state effectively and to prevent uprisings. The laws should be harsh so as to instill fear in the people and make them ready to fight and die for their king, as only by such means would the state maintain an army capable of crushing its rivals. Internally, the Legalists were concerned with the threat of rebellion and treason. They believed that the legal system should reward the capable and punish the guilty so as to stamp out every attempt to subvert the state.

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China’s Legal System And The “Ten Abominations”


Escape of Emperor Xuanzong of the Tang Dynasty during the An Lushan rebellion. In the Chinese legal system rebellion and treason were considered two of the “ten abominations” (by Li Zhaodao, Public Domain, wikimedia commons)

Before the overthrow of the Qing Dynasty in 1911, China’s legal system differed from that of liberal Western states in three major aspects: First, the apex of the entire legal system was the absolute monarch; it was the emperor who issued and abolished laws, and the most serious crimes of the legal code were those which endangered imperial dynastic rule and desecrated the emperor and his property. Second, Chinese law incorporated major principles of Confucian ideology, most notably its emphasis on the family, on filial piety and on strict social roles and hierarchies. Third, the imperial legal system was designed to impose social norms – mostly of Confucian origin – with the aim of creating a self-regulating society. These three aspects of imperial China’s legal system are reflected in what imperial legal codes called “the ten abominations” or “the ten evils” (十惡), which were classified as the most heinous of all crimes. Even the emperor himself could not pardon subjects who had been found guilty of committing them.

The term “ten abominations” was invented by the Legalist school in order to identify those crimes which the state considered most threatening to political and social order (see: Charles Benn: Daily Life in Traditional China: The Tang Dynasty, 2002, p. 197). The first nucleus of the “ten abominations” can be found in the law codes of the Northern Qi kingdom (550-577 AD), which divided crimes into ten categories (see Xin Ren: Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China, 1997, p. 37). Confucian scholars initially rejected written laws as a means of governance. However, the idealism of early Confucian thought did not suit the emperors’ need for a stable and strong state. Beginning with the Han Dynasty, Confucian scholars incorporated Legalist doctrines into their philosophy of state-building. Confucians thus compiled law codes, but they infused them with their own moral and social philosophy. The first comprehensive legal code that has survived to this day is the Great Tang Code issued in 653 AD (see Patricia Buckley Ebrey: Chinese Civilization: A Sourcebook, 2009, p. 116). The following dynasties up until the Qing Dynasty built their legal system upon Tang law. In particular, the “ten abominations” remained almost unchanged throughout the centuries. We shall now examine the “ten abominations” as they were formulated in the last legal code of imperial China, i.e. that of the Qing Dynasty. Continue reading