Justice System in China - Research Paper Example

?Justice system in China “It is the spirit and not the form of law that keeps justice alive” Earl Warren Introduction: The key objective of any criminal justice system is to ensure protection of public interest through implementation of appropriate and effective laws and seek its strict adherence. Historically, the system of criminal justice worldwide has seen gradual transformations in the forms of punishments meted out to offenders and criminals, as well as with regard to laws governing criminal and policing reforms, followed by corresponding changes, in the external environment. These changes have mostly been in response to the changes in the political, social and economic conditions of the respective nations as well as the philosophies followed by them. The developments taking place in the cultural and political spheres have played a key role in shaping and influencing the legal systems worldwide, and are apparent from the introduction of new laws over time. This paper on criminal justice aims to understand, assess and examine the criminal justice system in China, its historical and philosophical origins and the impact and influence of political and cultural elements in shaping the contemporary law in the country. Historical origins: China is regarded to be one of the few nations which boast of one of the oldest legal traditions in the world. However, according to studies, the country has faced several setbacks with regard to establishing and implementing an effective criminal justice system. China has seen a series of powerful dynasties, spanning over 4000 years of rich history, and witnessing the implementation of diverse systems of bureaucratic controls (Dammer & Albanese, 2010). Each and every single dynasty in ancient China had their own set of rules and laws comprising of criminal codes and statutes which were binding on all citizens. Some of the most prominent of these statutes include the Yuxing criminal laws established and implemented during the Xia Dynasty; the Tandxing criminal laws established during the Shang dynasty; the Qinlu criminal laws implemented during the Qing dynasty; the Hanlu laws during the Han dynasty; the Jiuxing criminal laws of the Zhou dynasty; the Tandxing criminal laws of the Shang dynasty; the Tanglu criminal laws of the Tang dynasty; among others. The criminal laws implemented by all these dynasties were governed by the administrative officials (Nwankwo, 2011). However with the change in political powers and the formation of new governance, which began with the establishment of China as the People’s Republic of China, during the year 1949; brought an abrupt end to the criminal laws observed for over 5000 years. When the Communist party assumed power in China, it set out to abolish all the old laws enacted by the previous governments, and replace it with new ones which were in sync with the universal laws and which complimented the new socialist regime (Nwankwo, 2011). The administration of the concept of justice in imperial China was founded on the basis of a set of values and theories. The conceptions of justice was largely influenced by three major schools of thoughts which included Confucianism, Legalism and cosmological. All the three schools of thoughts had a completely different approach although in principle, the philosophical justifications offered were the same. Eventually, the three schools of thoughts were finally merged together to form a common law based on a common rationale, during the Han dynasty between the period of 206 B.C. and 220 A.D. These set of laws continued to be put to practice till the twentieth century (Muhlhahn, 2009). Philosophical origins: “Lead the people with governmental measures and regulate them by law (fa) and punishment, and they will avoid wrongdoing but will have no sense of honor and shame. Lead them with virtue and regulate them by the roles of propriety (li), and they will have a sense of shame, and moreover, set themselves right.” Confucius, in Terrill (2009) pp. 556 During earlier times, the concept of equal rights for all individuals, was largely absent from Chinese legal system. This resulted in a general disregard and disrespect of the law in the country. Most of the legal codes established by the rulers found minimum acceptance among the general public and hence a more informal social system of control based on Confucian and Taoist philosophies came into being, during the Han dynasty i.e. during the period from 206 B.C. to 220 A.D. (Dammer & Albanese, 2010). According to the Confucian philosophy, social order can be accomplished by bringing about moral and political reforms. This philosophy is rooted in the thought that all humans are fundamentally good by nature and are capable of goodness, and any act contrary to this ideology tends to bring shame to the people around them as well as to the society as a whole. This ideology of group / collective consciousness was used as a primary force of encouraging and binding people to the laws of the nation and preventing them from indulging in any immoral or anti-social activities (Terrill, 2009; Muhlhahn, 2009). One of the oldest and documented evidences of the written law, known as the Hsing Shu (punishment book) in China dates back to 530 BC, and the oldest imperial code known as the code of Li K' vei, which is dated sometime during the fourth century B.C. These codes of punishments were reformed during the Han Dynasty whereby corporal punishments, which existed earlier, were completely abolished. Most of the laws in China, were based on maintaining social order and unlike the European laws, which extended to marriage and commercial issues, the Chinese law was largely focused on the formation and imposition of penal law. Morality was ranked highly in the Chinese society and lack of impropriety among the citizens was regarded as disruptions to the social fabric (Jones, 2011). According to the Confucian philosophy the concept of li is viewed as a source for regulating human behavior and restoring social law and order in the society. This philosophy endorses the view that human kind is either inherently good or capable of goodness. The concept of li promotes acceptance of all human beings and any government which adheres to this school of thought is essentially know to function in a highly co-operative and harmonious manner (Terrill, 2009). The concept of fa, on the other hand was largely endorsed by the legalists. According to this philosophy, which was greatly influenced from Taoist school of thought, the underlying objective of any legal system must be to ensure justice and maintain law and order. Hence, a strong system of justice must be implemented to ensure prevention of crime. The legalists, unlike the Confucians believed in supremacy of law, rather than human nature (Jones, 2011). The Chinese punishment systems were highly unfair and unequal and did not make any claim regarding equality for all. The punishments hence, were largely unfair, since they were more dependent on the social status of the offender rather than on the nature and gravity of the crime committed. The poor were punished more severely as compared to a rich and / or powerful offender. The system of capital punishments was rampant although pardon could be sought. However, with time the two philosophical thoughts, i.e. Confucianism and Taoism became increasingly obsolete and the society opened up to a more effective and universal form of law, which demanded equal rights and treatment to all, regardless of one's individual status (Jones, 2011). Impact and contribution of political and cultural developments: China is a unitary multi-national socialist country. It’s criminal justice system comprises of the police, procurates, courts and correctional institutions. The reforms in the criminal justice system began after the adoption of the Constitution of the People’s Republic of China, in the year 1954 by the National People’s Congress, followed by the adoption of the legislation on Police reforms in the year 1957. Various reforms were introduced in the following years in all branches of law, i.e. Civil, Criminal as well as Procedure law. However, the series of reforms which was triggered off in the late 1950s was brought to an abrupt halt with the commencement of the Cultural Revolution in the year 1966. The end of the Cultural Revolution in the year 1978 however signified a new phase in the country’s progress towards bringing about legislative reforms during which, greater emphasis was laid on stability, continuity and authority of legislations of the new socialist democracy. The legal ‘repairs’ with regard to the criminal justice laws in China, commenced preceded by the drafting and revision of the Criminal Law which was ultimately adopted by the National People’s Congress in the year 1979. It took almost three decades for the country to adopt and implement reformative criminal law system, which marked the beginning of a more powerful and stronger justice system in the country, since prior to the enactment of this law, there was hardly any effective system in place to guide the judges to try criminals. Furthermore along with the Criminal Law, a new supplementary law, referred to as the Interim Regulations was introduced which dealt with the violation of duty by servicemen (Nwankwo, 2011). China has largely failed to establish an effective legal system ever since the end of the imperial rule in the year 1911, despite several efforts over the decades (Hutchings, 2003). The inability or failure of the country’s administration to introduce effective laws and establish a robust criminal justice system could largely be accounted to the drastic changes taking place in the external environment. Most part of the twentieth century was plagued with chaos caused by civil and world wars, as well as aggressive political campaigning with the country. The chaotic environment which began with the Cultural Revolution continued throughout the early 1960s till a major part of the 1970s. The most significant setback to the legal and justice system overall, in the country, was the complete abolishment of the legal institutions during the Cultural Revolution. The country was in a complete state of chaos, due to the absence of courts, persecutors, and lawyers to govern and enforce laws. It was only during the year 1979, under Deng Xiaoping’s rule that the legal institutions were slowly re-established and the judicial system was reformed. The law schools were eventually re-opened and the judicial system was re-established and re-implemented (MacKerras, 2001; Wing-hung Lo, 1995). Deng Xiaoping, in order to break the existing chaos due to lawlessness, and the general hostility of people towards law, urged for an urgent introduction of a well-formed institutionalized system of criminal justice, comprising of a set of legal codes. He stated that, "To ensure people's democracy, we must strengthen our legal system. Democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes, or whenever the leaders change their views or shift the focus of their attention" (Wing-hung Lo, 1995, pp. 33). Conclusion: Most of the criminal law systems in socialist countries are similar to those in the Civil law systems. The Chinese law system is starkly different from the European or western law systems, since the country has, for the most part, been detached from the western civilizations. The legal systems in China however is more closer to that observed in Japan, in the sense that most of criminal laws in Japan were based on the Conspicuous school of thought, where the significance of social harmony and co-existence has been stressed, and rated relatively higher than any criminal law. Furthermore, it is also notable that the Chinese system of governance largely ignored granting of or protection of individual rights and was mostly restricted to safeguarding the rights of a select few. The criminal law system in the country however, received a major boost following the political upheaval during the Cultural Revolution, which forced the powers that be, to renew and re-establish better, stronger and effective laws. Political and cultural pressures often tend to shape the country’s key administrative policies as is apparent from the case of China’s legal system and play a key role in influencing some of its major administrative decisions. Conventionally, the prevalent philosophies have largely laid the foundation of any country’s judicial systems, although over time, they have given way to more universally accepted laws, in order to align their policies with those of the world. References: Dammer, H. R., Albanese, J. S., (2010). Comparitive criminal justice system. Cengage Learning Publishers, pp. 76-77 Hutchings, G., (2003). Modern China: A guide to century of change. Harvard University Press, pp. 349-50 Jones, M., (2011). History of criminal justice system. Elseiver Publication, pp. 31-32 MacKerras, C., (2001). The new Cambridge handbook of contemporary China. Cambridge University Press Muhlhahn, K., (2009). Criminal justice in China: A history. Harvard University Press, Pp. 15-17 Nwankwo, P. O., (2011). Criminology and criminal justice systems of the world: A comparitive perspective, Trafford Publishing, pp. 108 Terrill, R. J., (2009). World criminal justice systems: A survey. Elseiver Publications, pp. 556 Wing-hung Lo, C., (1995). China's legal awakening: legal theory and criminal justice in Deng's era. Hong Kong University Press, pp. 33-35 Read More