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Human Rights in China

HUMAN RIGHTS IN CHINA: DOMESTIC RESISTANCES, DOMESTIC RESOURCES

Law, Market and Culture in the Chinese Human Rights Discourse

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TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………

CHAPTER I

METODOLOGICAL APPROACHES…………………………………………………

1. Preliminary Issues…………………………………………………………………….

1.2. Approaches to legal comparison: relativist, fundamentalist, experimentalist………

2. Issues of comparability/commensurability between Chinese and Western discourses of human rights………………………………………………………………………….

2.1 Understanding and evaluation……………………………………………………….

2.2 Cultural commensurability/ comparability………………………………………….

3. Comparison between ‘rival’ ethical systems………………………………………….

4. Significance of a Chinese-Western comparison………………………………………

5. Chinese legal pragmatism…………………………………………………………….

CHAPTER II

CHINESE IDEAS OF AUTHORITY, LAW AND GOVERNMENT ACCORDING TO CLASSICAL DOCTRINES……………………………………………………

1. Traditional Chinese legal thought. …………………………………………………...

2. Legalism and its intellectual contribution to Chinese legal tradition………………...

3. The terms of a comparison between Confucianism and natural law theories………..

3.1. The theoretical relation between law of nature and natural law in Confucianism….

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3.2. The minimum connection between law and morality……………………………….

3.3. Is Confucianism compatible with natural law theory?...............................................

CHAPTER III

CHINESE NORMATIVE (ETHIC/LEGAL) IDEAS ACCORDING TO CLASSICAL DOCTIRNES………………………………………………………………………………………..

Introduction……………………………………………………………………………..

1. Chinese ancient ideas of jurisprudence………………………………………………

2. Theories of norms according to classical legal doctrines…………………………….

3. Normative domains and their hierarchy……………………………………………...

4. The method for applying imperial statutes…………………………………………...

5. The structure of normativity………………………………………………………….

5.1. Epistemological presuppositions of Confucian morality…………………………..

6. The structural prevalence of politics upon law………………………………………

7. The notion of person…………………………………………………………………

8. The ideal of the fiduciary community………………………………………………..

9. Is the idea of luck absent in Chinese morality?............................................................

CHAPTER IV

THE EVOLUTION OF LAW AND RIGHTS DUE TO DOMESTIC FACTORS…

Introduction……………………………………………………………………………..

1. The ‘crisis of Chinese consciousness’ and Chinese legal modernization……………

2. Some insights in the causes determining failure or success of legal transplants in terms of law compliance………………………………………………………………...

3. The role of market reform for the recognition and protection of rights……………...

4. The constitutional provision of rights………………………………………………..

5. Autonomy of law or rule by law……………………………………………………..

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6. The general relationship between market institutions and rights: the ‘rights hypothesis’ and how the hypothesis can be corrected to explain the Chinese case…….

6.1. Arguments supporting the idea that socialist market economy is influencing the democratization of Chinese institutional system or a wide spreading support for constitutional values……………………………………………………………………

6.2. Arguments contra the idea that socialist market economy is influencing the democratization of Chinese institutional system or a wide spreading support for constitutional values…………………………………………………………………….

7. The different path of Chinese institutional evolution: institutional capacity and the minor role of the courts…………………………………………………………………

8. The sustainability of Chinese economic growth and the implication for prospects of democratization according to political theorists………………………………………...

CHAPTER V

THEORIZING ABOUT RIGHTS IN CHINESE CONTEMPORARY JURISPRUDENCE…………………………………………………………………

1. Jurisprudence in an authoritarian state……………………………………………….

1.1. Salient theoretical changes in Criminal Law and Criminal Procedure Law……….

1.2. The abolition of analogy in criminal law…………………………………………..

2. Chinese jurisprudence debating about rights…………………………………………

3. Marxist jurisprudence on human rights: core ideas…………………………………..

4. Non-Marxist views upon human rights………………………………………………

5. The nature of rights…………………………………………………………

6. The justification of rights…………………………………………………………….

7. The balancing of efficiency and rights……………………………………………….

8. The preference for economic social and cultural rights……………………………...

9. International standards and internal human rights practice…………………………..

10. The principle of equality as a normative standard for legislation………………….

11. Uses and abuses of Confucianism..…………………………………………………

12. Involuntary consequences of a pragmatic approach to human rights………………

CONCLUSION………………………………………………………………………..

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INTRODUCTION

It is generally assumed that the concept of human rights, and perhaps even the idea of subjective rights, has not close equivalents in the Chinese legal tradition. However, these notions have been discussed by Chinese intellectuals since the last decades of the XIX century, and are at the core of the contemporary jurisprudential debate. Citizen’s rights are enshrined in the Constitution of the People’s Republic of China and with the 2004 amendment the Chinese government has officially undertaken the commitment of guaranteeing human rights protection at the domestic level, proclaiming that ‘the State respects and protects human rights’ (article 33). By signing a number of treaties regarding human rights, Chinese government is bound to respect relevant international standards.

The Chinese official or governmental view claims that the concept of human rights is country-specific because it is profoundly influenced by social and cultural factors, economic conditions and historical development, being ultimately their result, or product. Since the above mentioned elements vary in time and space, each country would possess a different idea of human rights; the normative standards to judge the human rights practice would vary accordingly. Moreover, the Chinese official view upon human rights claims to be founded upon fundamental differences regarding the basic values of the political community in respect to the liberal ones, and on the difference in the way of ranking those values. The claim of a distinctive Chinese concept of human rights has generated the question of whether or not the Chinese notion of human rights deserves recognition and attention, or if ‘human rights with Chinese characteristics’ represent only a façade to justify limitations on civil and political rights by the Chinese authoritarian regime. Claiming to constitute a non-liberal conception of human rights, and an explicit alternative to liberal ideals, the Chinese official view poses itself as a challenge to the illuminist intellectual tradition, which is considered morally flawed. This position generates the problem of the right normative standards which may be properly considered binding for all nations. A certain conception of human rights regarded as morally binding for the governments of all nations, if lacking domestic justification, would be considered as an imperialistic or external imposition. The crucial relevance of this argument lies also in the fact that the Chinese conception of rights claims to associate countries with a Confucian heritage, since the values which it supports, and which allegedly inspires it, would come from the common root of the Confucian tradition and could be considered as normative for societies based on non-liberal ideas of politics and government.

In the framework of this broad debate it seems important to assess the claim of the existence of a distinctive Chinese concept of human rights.

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The affirmation of human rights in contemporary constitutional democracies is generally considered the result of a long historical and ideological path, which, starting with the fall of feudalism and through the overcoming of medieval legal particularism, brought to the elaboration of subjective rights, modelled upon property right, as a fundamental category of the legal system, and to the synthesis of the notion of person as a subject entitled of rights. The concept of human rights historically developed in a legal environment in which judicial authority was autonomous from political power and the political aims of the national communities were not limited to accomplish what could be elevated as collective interest, but instead allowed space for the realization of individual and subjective interest. The argument that human rights were historically generated in a certain region of the world (namely Europe and the USA, which share a relatively homogeneous legal tradition) has been rightfully criticized as it is not deemed conclusive in order to affirm that their recognition and guarantee may only be realized in the cultural and legal environment in which this idea originally thrived.

The present study aims at investigating the nature and significance of the concept of rights in the light of the contemporary within China debate, and to assess if the asserted distinctiveness of this notion could eventually be attributed to a different conceptual genesis, an alternative path of evolution. Rights and human rights are provided by the law and the nature and significance attributed to human rights practice presupposes and entails a broader understanding of the legal practice as a whole. This claim about the nature of law and about the relationship between law and rights is based upon studies, empirical evidences and intuitions which will be assessed in the present research, but which deserve further investigation to be conclusively addressed. However, it seems worth investigating the arguments concerning the specific role and significance assigned to the practice of law in China, as well as the arguments about the nature of the relationship between law and politics (and the arguments adduced to justify or support these ideas) in order to understand the degree of autonomy of law, which is a pre-requisite for the respect of legal rights.

A meta-legal investigation, coupled with the analysis of key moral notions, seems better suited to highlight the differences of the Chinese interpretation of the nature and significance of human rights.

Beside the nature of law and its role, the conceptualization of the relationship between authority and its subjects is another relevant theme to be investigated. Since their origin, human rights have been understood as a protection of the individual from the interference of political authority, under the fundamental assumption of the separation of the interests of the state and that of the citizens. In the tradition of continental Europe rights have been originally understood as public subjective rights, while in the Anglo-Saxon jurisprudence they have been considered as prior to the state and constituting the ultimate reason for the constitution and exercise of any public power. In two different ways, the conception of the relationship between political authority and power has set the legal space in which rights exist and can be

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exercised. A last theme, deeply related to the actual conception of rights and the characteristics of their actual practice, regards the ways in which legal norms attributing rights are interpreted and applied. This depends on the way the organs empowered of the application of law are organized, and from their actual functioning, beside the rules and paradigms of legal interpretation, the study of which, however, falls ouside the scope of the present enquiry.

The changes in law occurred in China during the XX century due to legal modernization and the remarkable and fast rationalization of the legal system that took place in the last three decades to support economic reforms and guarantee the well functioning of the market are significant and extensive, and could therefore bring to the choice of investigating the contemporary law only. However, this perspective would lack depth, not only for to the obvious reason that the explication of present phenomena lies in past processes and remote causes, but, most importantly, and substantially, due to the circumstance that the peculiarities of the Chinese legal practice can be attributed to a system of thought and to a way to organize power which has been modified in its forms but corresponds in many respects to that of the past in its substance. A large number of legal dispositions providing citizen’s rights, both at the constitutional level and at the level of ordinary legislation, are modelled upon the legislative texts in force in contemporary mature constitutional democracies. From a formal point of view the similarities with the model are remarkable. However, the formal similarity must not be misrepresented as entailing full correspondence of the substantive normative contents as well. The actual content of legal dispositions is determined by the interplay of official provisions and non-explicit norms lying underneath the legal system, or implicit principles guiding their interpretation and application. For this reason it seems that investigating the conception of human rights from a broader philosophical perspective, rather than a pure analysis of the changes in positive law, may bring to deeper insights and more comprehensive understanding of the within china human rights discourse as a whole.

The enquiry in the conceptualizations of the Chinese moral and legal tradition will clarify some of the terms of the contemporary debate about rights, at the same linking them to the broader context of Chinese legal development. In this respect, the reflection of traditional legal schools and some of their arguments possess explanatory power. Chinese ancient jurisprudence was neither elaborated in a systematic way nor collected in an orderly fashion within written records or collections. Reflections upon law are rather embedded in broader philosophical discussions and sometimes even in the works of scientists. Four classical schools: Confucianism, Legalism, Mohism and Daoism, elaborated the arguments upon the nature and the role of law that mostly influenced the subsequent reflections. The core tenants of each school have been reinterpreted and countered in various ways through the centuries. Even not overlooking the richness of the more recent interpretations, the following discussion is focused on the core assumptions of each school, especially Confucianism and Legalism, for the most part contained in the works attributed to their respective founders, or, in some cases, their most representative disciples.

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Human rights are provided by law but their justification, according the ‘traditional view’, ultimately depends upon moral ideas. The moral premises grounding the notion of rights, in this perspective, are related to the conception of the person as endowed with some prerogatives since birth and morally deserving equal respect and protection, secured through the provision of equal rights for every person. The prevailing contemporary Western jurisprudence holds that the attribution of legal recognition and protection to some human interests is the fundamental point for providing human rights. On the basis of the assumption that the notion of ‘individual’ does not possess moral relevancy in Chinese ethical discourse, it is generally denied that the concept of human rights can be framed in the Chinese context. Moreover, the distinctive holistic character connoting the representation of society would prevent the attribution of comparatively higher axiological value to the individual in respect to the community. The priority attributed to the community over the individual would entail the negation of the character of inviolability and inalienability of human rights. The collectivistic perspective would regard the interests of the component parts of the whole as being structurally subordinated to the interest, wellbeing, surviving of the whole. On the contrary, the norms providing individual human rights should not be derogated unless, and only to a certain extent, in the case they are conflicting with the protection of other human rights. The above mentioned moral ideas are generally and indiscriminately attributed to the Chiese ethical discourse. The approach of the present research questions this reductionists views and will try to highlight more sophisticated aspects which are generally overlooked but could add insights to a reflection in the perspective of comparative ethics. Although in an indirect way, this kind of reflection may also contribute to the global discourse upon human rights, adding to the debate the Chinese voices that are less represented in the official discourse, but are nevertheless significant in the within China debate.

The rich Chinese philosophical and ethical tradition has elaborated some very sophisticated moral notions which seems to be relevant for the within China discourse upon human rights. Some values, beliefs, ideas, as for instance the virtue of filial piety, even if their original formulation can be traced back to the very early stages of Chinese civilization, still exert an extremely remarkable influence in the everyday life of the Chinese citizens. A close analysis of these notions would potentially provide the grounds for a justification of human right starting from distinctively and genuinely Chinese premises. The selection of the moral believes, conceptualizations and ideas discussed in the present study was made using a method of a cross referenced comparison between the existing literature on Chinese moral theories, the results of public surveys, in turn compared with the ideas emerging from personal interviews and discussions with legal scholars, lawyers, judges, students and common people, during a six month period of study and research at the Universities of Chongqing, Xiamen and Hong Kong. This method has allowed the research to focus on those aspects of the moral theorization which seem to represent a part of the Chinese contemporary positive morality. The advantage of using such a criterion lies in the possibility it might offer of sketching in general terms the degree of compatibility

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between the positive morality of Chinese population and some basic tenants about the idea of human rights (which, even though conceptually problematic, will be taken for granted and not discussed in the present study), and of approximately individuating the aspects constituting a hindrance or, rather, a support, for the generalized acceptance of the idea of human rights. However, this level of the discourse should be distinguished from two other levels: the academic or jurisprudential and the governmental or official. The contents, nature, and incidence, both in the public overall discussion and in normative public choices, varies in each of the three above mentioned domains. In the following pages attempt will be made to maintain distinguished the three levels, specifying from time to time which level is in discussion.

The view that the progresses in Chinese human rights practice are mainly due to external factors is commonly held in the literature. The adoption of rights is considered a major consequence of the People’s Republic of China’s aspiration to access the World Trade Organization (accessed in 2001) and to attract foreign investment, since both processes implied the imposition higher standards of transparency in law and administration, the modification of legal institutions and the amendment of legal dispositions. Also, the official recognition of human rights has been generally considered a consequence of the political pressure exerted by international community raising heavy criticism for the domestic practices which violated basic international standards of respect for human rights. In line with this perspective, the paradigm of ‘selective adaptation’ has been used to describe the dynamic of domestic legal transformation due to the reception of international norms. This process indicates in the interaction between local practices and international normative standards the source of the actual normative contents of the Chinese legal and institutional system, considering the similarity with existing rules as one of the most important factors determining the acceptance of a norm and its effective application, together with the capacity of that norm of meeting the needs or resolve the problems affecting the local community that applies it. Another paradigm used to describe the interaction between domestic and external rules and standards has been that of a process of learning called ‘internationalization’. While the above mentioned literature mainly adopts an external perspective, the focus of the present work is instead on the domestic factors shaping the trajectory of change of the human rights discourse in China.

The most important domestic phenomenon which has brought salient changes in the conception of rights and in their legal provision has been the shift from an economic system based on state plans to a system that has been called ‘socialist market economy’. In the following pages it will be closely and deeply assessed the extent to which the shift from a planned to a socialist market economy has catalyzed a change in respect to the dominant conception of the role and nature of law, of its relations to politics, and in which ways the institutions of the market have influenced the representation, the contents and the relevance of rights. The recent shift in the economic system makes of China a particularly interesting object of observation for

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three main reasons: first, because notwithstanding the introduction of a quasi-capitalist market economy, the authoritarian regime has not undergone a significant process of transformation towards democratic methods of governance, thus challenging the assumption of an existing mutual implication between capitalist-like economic systems and democratic methods of governance; second, because a remarkable economic growth occurred in the absence of a stable, rational, transparent, consistent system of law, with a structural institutional weakness of the judiciary, thus challenging the assumption that an efficient and rational legal system is the prerequisite for the functioning of the capital market, lastly, because the socialist system has been coupled with the protection of rights, undermining the idea that certain economic systems are more apt, or suit better, the protection of rights (disconfirmed by the Indian case as well). These claims are related to the debate between the alleged incomparable values of equality and freedom usually associated respectively to liberal and socialist political theories.

The Chinese contemporary jurisprudential debate about human rights has been originated by the need to elaborate a new legal framework, new theorizations and legal categories, to synthesize the past conceptualizations with the changes originated by the new circumstances of the market economy. Notwithstanding its domestic relevance, Chinese contemporary jurisprudential theorizations have been less investigated by non-Chinese scholars. The limitations imposed upon the public discussion about human rights by the authoritarian regime’s constraints are certainly heavy; however, the Chinese reflection upon human rights deserves attention for the potential contribution it may be able to bring to comparative legal scholarship. Moreover, it is not to be excluded beforehand that the elaboration of Chinese jurisprudence about rights could represent a meaningful contribution to the global discourse of human rights.

The questions of method appear to be crucial for the present enquiry. The first chapter is dedicated to the illustration of the advantages and disadvantages of three different methodological approaches, the relativist, the fundamental and its variances, and the experimental. The second and the third chapter are dedicated to the analysis of the fundamental legal and moral ideas developed by the classic schools of thought. In the second chapter a very short introduction of the main classical legal theories is premised to the discussion on the opportunity to qualify the Confucian doctrine as a natural law theory. The third chapter is divided into two sections. One is dedicated to defining the position attributed to law by the classical legal schools within the broader normative domain and in relation to morality and politics. A model of the structure of morality is represented with the aim to clarify several issues, among which the conceptualization of the relationship between political authority and its subject, which still lies at the basis of the material constitution of the Chinese state. The remaining part of the third chapter is dedicated to some highly fundamental moral ideas, such as the ideal of the fiduciary community, the notion of person and the process of self-development. These moral ideas may offer the grounds for a distinctive Chinese notion of human rights. Also, the significance of investigating distinctive and less

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commonly stressed moral ideas could lie in the potential contribution these notions could be able to bring either to other moralities or to the global human rights discourse. The analysis of moral fundamental values and legal theorizing by doctrines of the past is not conducted with the aim of finding the antecedents or some sort of embryonic conception of the idea of human rights in the Chinese intellectual tradition, or with the aim of illustrating the reasons for its absence. Indeed, it would be rather surprising to find either a fully fledged conception or even just the antecedents of a conception of human rights back in pre-modern history, when the idea of human rights was absent even if in the areas of the globe where it has been subsequently developed. The enquiry has instead the purpose of indicating how the legal and ethical domains have been conceptualized and to highlight their distinctive characteristics, what place is assigned to law, what is the hierarchy of norms and how the social relationships have been regulated. Throughout the Chinese legal history at least two parallel and autonomous normative orders, official and non-official, organized in different ways have regulated social interaction. The difficulty lies in the correct classification of rules, in the analysis of their nature and their relationship. The investigation in the unofficial area of production of law is particularly relevant in order to understand how social organization and other mechanisms of regulation of social behaviour interacted with the official law of the state. The analysis carried on in the second and third chapters serves to add comparative depth to the subsequent discussion focused upon the domestic factors that played a role in the trajectory of evolution of rights and human rights in China.

Enough attention and dissection has been given to Communism in China by other sources. Several studies have already deeply investigated the role of the CCP in relation to the right discourse from different perspectives and the arguments and conclusions they have reached will be duly acknowledged in this study, whose purpose is, however, to scratch the surface and investigate beyond this argument into the legal and ethical Chinese tradition, in order to acknowledge not only the reason of resistance to the idea of rights and human rights, but also to articulate the possible underpinnings of this concept in the Chinese discourse as well, assessing the hypothesis of a different genesis for human rights, with Chinese premises. The knowledge of the Chinese premises allows a deeper understanding of the reasons of the alleged Chinese resistance to the idea of rights and, on the other side, an acknowledgement of the theoretical basis upon which the Chinese discourse of rights could be grounded and to which resources could draw. Researches of this kind have been already undertaken. Angle, for example, indicated in the neo-Confucian thought, and in particular in the recognition of legitimacy to individual human desires, a possible motivation, or ground, for recognition of human rights in the light of the same Chinese tradition of thought. Similarly, this study delves into a more foundational structure for morality in China, as oppose to the relatively recent graft of Marxism-Leninism-Maoism, much of which could easily be construed as an evolution of legalist tendencies and Confucian legacies.

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The attempt to modernize the legal system was initiated by the decaying Chinese empire due to the confrontation with the Western culture. The fall of the last dynasty, overwhelmed by internal crisis, and the reaction of the intellectuals against the past, perceived as a past of injustice and exploitation, generated the intellectuals’ rejection of the Chinese culture and legal tradition and the desire to embrace the Western corresponding ideas. This phenomenon has been called ‘the crisis of Chinese consciousness’ and was characterized by a strong intellectual prejudice towards all that was Chinese, included legal and political doctrines. The studies on human rights have been initiated at that time.

The influence of Marxist thought fostered a suspicious attitude toward law as a method of governance since the foundation of the People’s Republic of China in 1949. The practice of law was abandoned due to the extremism of Cultural Revolution (1966-1977) and substituted by political action of mass movements. The rediscovering of law in the modern sense seems to be linked to the most recent developments, and mainly to the political decision of progressively abandoning the system of planned economy and initiating a process of reforms toward the establishment of a socialist market economy. In order for the market to function, rights have been provided and the legal system rationalized. Together with institution of the Western legal tradition, the legal jargon has been adopted as well. Chapter IV is dedicated to the analysis of the relationships between the market economy and the evolution of rights, while Chapter V is dedicated to the jurisprudential within China debate about law and rights.

At the end of the analysis it will be possible to advance at least partial or provisional answers to the following questions: 1) Is the Chinese notion of human rights distinctive and theoretically well grounded? 2) How is it related to the Chinese moral conception of person? 3) How the domestic factors contributed to develop the idea of human rights? 4) What, if any, is the contribution that Chinese ideas of rights offer to the global discourse upon human rights?

Before starting the articulation of the research it seems appropriate to state two general premises. The first concerns the usage of the term ‘culture’. An analysis of the idea of culture would lead the discussion too far away from the main theme of the present study, and for this reason it cannot be carried on here. However, when in the following pages reference is made to culture it is never to be understood with essentialist nuances. The second premise concerns the contraposition Western-non Western. The terms are only used to indicate a provenience, and not as representing shared identities opposed to each other. However, when reference is made to Western legal tradition the expression is used, notwithstanding its inadequacies due to overgeneralization, to refer to the legal development resulting in contemporary constitutional states or Continental Europe, the Great Britain and the United States of America, which are generally considered as constituting an area sharing a particular, relatively homogeneous, ‘legal culture’. The perspective of this research does not share the ethnocentric assumptions entailed in the debate initiated in the 1970s,

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between Orientalists and Occidentalists. In the framework of this debate has been inserted the one about Asian values, which has now been abandoned due to the weak theoretical foundation of its major claims and assumptions and due to the number of unanswered objections which showed the its inadequacy and the minor relevance of its contents.

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CHAPTER I

METODOLOGICAL APPROACHES

1. Preliminary issues.

The aim of this research is to get a deeper understanding of the meaning, the relevance and the significance of the notion of human rights in Chinese contemporary legal context1.

The present study relies mainly upon Chinese and non-Chinese scholarly works published in English and on a limited selection of sources in Chinese language (including laws, field research carried on by other scholars but whose results are not yet been published outside China, books and articles of Chinese scholars). The method of bibliographic research and the study of legal texts have been integrated with discussions with judges, legal scholars, law students, lawyers and common people, during a six month period of teaching and researching at the Universities of Chongqing, Xiamen and Hong Kong. The delineation of the line of enquiry has been the result of the technique of checking one person’s views with others’ and confronting their statements with the relevant literature on the topic. In some cases this method served to inform the view and in some other cases has been useful to reject or reinforce some lines of argument2.

The Chinese dominant conception of rights claims to be distinctive3 in respect to those elaborated in other countries or historical periods. The claim of distinctiveness of the Chinese idea of human rights can be assessed by investigating some legal, philosophical and political key notions, which may be considered the grounds for the idea of rights in the Chinese context. Therefore, the relevant area of this study is not limited to the provisions of positive law. Instead, it includes ethical and meta-ethical

1 The present research does not aim at elaborating a classification or at constructing a model of comparison; however, it may constitute a first step towards their formulation.2 A similar method has been used by Harding Andrew and Peter Leyland in their research on Constitutional law in Thailand. See Andrew Harding (2008: 42).3 The claim of the distinctiveness of the Chinese conception of human rights can be understood in two different ways. In a strong sense, this claim substantially coincides with the relativistic affirmation that human rights are culturally specific. Thus, since Chinese understanding of human rights, at least the one voiced through the official governmental view, appears to deny some of the characteristics commonly attributed to them by other interpretations, the advocates of the distinctiveness of the Chinese conception of human rights in the strong sense refuse the applicability of standards of judgment of the domestic human rights practice which are not Chinese In the weak sense, instead, the claim of a distinctiveness of the Chinese conception of human rights affirms that there may be some relevant peculiarities and meaningful ideas in the Chinese discourse of human rights, due to the different legal, cultural and intellectual environment in which they were formulated. The present research aims at assessing the second claim through an – as much as possible – unbiased analysis of the Chinese discourse of human rights. The debate between universalists and relativists is not addressed in the present research, being at the core the Chinese conception of rights and not the assessment of the universal or relative nature of human rights. For a discussion on the topic, however, see Angle (2002: 1-3); Peerenboom (2003); Donnelly (1984) Often the relativist claim has been accused of ‘ignoring dictators’. For a debate see Ames (1988: 206-207; 1997) and contra Donnelly (1997: 207-213)

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analysis following the assumption of the traditional view4 on human rights that they participate of both the legal and the ethical domains5.

The cross-cultural6 nature7 of the enquiry poses the crucial question of the methodology to be adopted, and the choice of the method is influenced by the answer to a number of preliminary questions, which will be addressed in the present Chapter. The present one is not strictly a research in the field of Comparative Law, even if it certainly it aims at contributing to this area of studies. Rather, the perspective adopted in this study is legal-philosophical, since it seems particularly adequate for understanding the differences and peculiarities of Chinese legal discourse. The Chinese legal system, and within it, the human rights discourse, may appear as a mass of chaotic and often inconsistent whole of rules and practices to the eyes of a Western-trained legal scholar. This is due to many factors: the hierarchy of legal sources is not clearly defined or rather systematically disregarded8, the criteria of legal interpretation are not sufficiently articulated, some documents, decisively contributing to determine the actual content of the law or the administrative practice are not available to the public, but only accessible for “internal” use by the administration officials. This chaotic character has been highlighted by scholars who affirmed that China undoubtedly does not ignore the experience of law, but certainly lacks a legal

4 Raz (2010b) criticizes the views that consider human rights as rights possessed by all human beings just in virtue of their humanity; Tasioulas (2010) instead, defend this position. 5 According to this perspective human rights are claims which are recognized by the law as legitimate (rights) due to moral considerations (the equal value of human beings, basic interests of the person that deserve, need, are worth legal protection). In the account given by Tasioulas (2010), the positions belonging to what he calls the Orthodox view upon human rights understand them as ‘moral rights possessed by all human beings simply in virtue of their humanity’. According to this view, they are sources of moral duties, exclusionary in their normative force and whose transgression ‘by a duty-bearer who can be properly held morally responsible, and who lacks any justification or excuse for their conduct, typically justifies a distinctive range of moral responses’. This features, and in particular the third, according to Tasioulas, ‘underlines the fact that human rights belong first and foremost to the domain of moral principles’. Regarding the universality of human rights according to the Orthodox view, Tasioulas argues that the meaning of this clause is that they are possessed by all human beings (even if it is to be determined what falls within and without this category). The group of Political views, which according to Tasioulas differ on the extent to which they disagree from the Ortodox view, instead, understand human rights as a concept not within morality in general, but instead ‘one within a specifically political morality’, which ‘must have a basis in an autonomous form of “public reason”. Tat way the Political views respond to the charge of ‘parochialism’ raised against the Universalist accounts of human rights.

The present enquiry does not address the debate between universalist and relativist views upon human rights.

6 To avoid the risks conveyed by the usage of the term “culture”, and since it is not the purpose of the present research to analyze this concept, it seems important to state once for all that when the words “culture”, “cultural”, etc. appear in present research it is not attributed to them any essentialist nuance, nor “cultures” are understood as undiversified wholes expressive of monolithic identities.7 Comparative law classifies the variety of legal systems distinguishing two broad categories: Western/non-Western legal families. The latter includes system of law belonging to African, Asian and Islamic legal culture. See Pegoraro & Rinella (2002). The main objection to the above mentioned categorization is the ethnocentric assumption from which it moves. Moreover, it has been rightly criticized as it suffers of overgeneralization and lacks precision. However, while an analysis between relatively homogeneous systems of law may focus on legal texts, jurisprudential praxis and doctrinal theorizations, a cross-cultural comparison involves a further level of analysis, and namely the understanding of the ways in which values, concepts, praxis and paradigms of evaluation merge with the interpretation of legal texts in the analyzed legal system, which may differ to a greater or lesser extent from the ones proper of the legal system to which the interpreter belongs. See Bell (1994); Pegoraro & Rinella (2002:53). 8 Keller (1994) Rinella (2007); Consiglio (2008: 200-205).

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system9. The articulation of the implicit rules of the Chinese legal environment is one of the preconditions for understanding it as a different form of “order” and a great contribution to reach this kind of understanding is given by the knowledge and the correct articulation of its broader philosophical and moral underpinnings. Focusing on the main theoretical differences and on the elements that justify the differences, the discontinuities, the peculiarities of Chinese law in respect to the assumptions of the non-Chinese observer, will help in understanding the specific “order”10, the proper connections between causes and effects, the hierarchy of norms, the relations between rules and exceptions, which characterize the whole of Chinese legal experience as a specific system, in which the practice of human rights is situated.

Moreover, the adequate understanding of the nature and significance assigned to the notion of rights and the justification of rights given in the context of Chinese reality seems to be the minimal precondition either for raising moral criticism or for eventually reaching a common understanding upon the role that human rights may play at the international level. The understanding between conversationalists belonging to different cultural backgrounds requires sharing information, translating them. For this reason the methodological adoption of the principle of charity elaborated by Davidson seems to be appropriate. The purpose of this principle is to maximize the agreement between the interpreter and the others, therefore the principle prescribes to the interpreter to make the best possible sense of the beliefs, behaviour and expressions of others in the process of understanding and interpreting them. The adoption of this attitude implies avoiding to the maximum possible extent the ascription of false, contradictory, incoherent or irrational beliefs and behaviours11. The understanding between participants of this sort of communicative interaction is only possible under the condition that the participants “share a certain amount of background assumptions”12.

1.2. Approaches to legal comparison: relativist, fundamentalist, experimentalist.

Results of observations are influenced by many factors, among which of paramount importance is the approach to legal comparison which has been chosen. As stated above, the present study is not strictly in the field of comparative law but, this notwithstanding, the methodological options elaborated by the researchers belonging to this scientific field seem to provide satisfactory answers to the question of method13

9 Lubman (1970).

10 As Harding (2008: 19-25) argues, there may be different ‘orders’, that is ‘order’ can assume many forms.

11 Celano, (1994: 295). Another problem is if the standards of evaluation to be applied for framing the enquiry or for forming judgment have to be those of the society that is being studied or may also be standards beyond those of the society being studied, external to it. Alford (1986:950) considers reasonable to use both only if addressed comprehensively.12 Ivi, 295.

13 See Clarke (1996:201-209); Lubman (1970:230-260); Berman, Harold J. (1970).

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generally arising in a cross-cultural enquiry focusing on human rights, which may be considered as being in between the moral and the legal field.

The approaches generally used in legal comparison with Chinese legal system may be grouped under three headings: fundamentalist, relativist and experimentalist14

approaches.

The fundamentalist view holds that the interpreter should adopt a point of view which is internal to the legal practice in order to achieve correct and satisfactory results. This perspective allows the understanding of the practice in the light of the interpretation of its participants. This view seems to be premised upon a relativist assumption: social actions can be understood and evaluated solely on the basis of principles already known (or familiar to) the specific culture (understood, perhaps over-generalizing, as a community of practice) of the observer that tries to understand and assess those actions. As a consequence, since the Chinese and the Western legal experience differ remarkably, principles or elements which form part of the legal language of the West are not deemed adequate to understand or study Chinese legal experience successfully. The advocates15 of this approach often hold as legitimate the new synthesis and the reshaping of certain concepts operated by the members of the receiving community in the process of adopting legal notions, rules and institutions (for example in the case of legal transplants). In other words, different meanings resulting from the reshaping of a particular concept are considered legitimate, even if they may be in some respects not compatible, coherent, but instead contradictory or conflicting (even) with the (core) meaning of some concepts in the original context of use.

The opposed approach is called relativist view and holds that is it possible to understand and to evaluate Chinese concepts of law and rights from a merely external point of view. The adoption of this model has been justified in relation to the Chinese legal practice on the basis of two premises. The first is that the Chinese legal community has consciously and willingly adopted institutions and models derived from Western law. The second premise is that an intense dialogue between China and Western countries has been already established due to the economic globalization. The existence of a significant similarity between China and the rest of the world is also attributed to the alleged abandonment or disappearance of the distinctive elements of a Chinese legal tradition and practice, which have lost the importance they possessed before. For the advocates of this view, the adoption of an external point of view to the practice sufficiently guarantees the accuracy of the results, while there is no need to adopt an internal point of view in order to correctly understand the meaning of the terms of the practice.

14 For a discussion upon the first two methods see Rinella (2010: 6-17). The third category has been for the first time individuated in this study.15 See for example A. Harding (2008: 19-45); Ajani & Serafino & Timoteo (2007); and also Ajani & Luther (2009).

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It could be argued that the two different models outlined above would be appropriately used for different areas of law. Namely, the relativist approach could be more appropriately adopted in comparing institutions and provisions in the areas of Civil and Commercial Law, while it would not be appropriate for comparisons in the field of Constitutional Law. In this latter area, instead, the adoption of the fundamentalist approach would be more appropriate. Constitutional law is generally considered an area of law in which not only forms matter, but also ideas, substantive values and axiological options, which instead would only marginally matter in correctly understanding the meaning of Civil and Commercial Law provisions. Constitutional law is deeply influenced by political and social environment: in this field the context dominates above the text. As a consequence, the study of Constitutional Law should take on the work and results of other disciplines such as political science, cultural anthropology, philosophy, economy. Therefore, familiarity with history (and in particular with legal history) as well as general culture and ethics or religion, would contribute substantially in understanding the forces that shape Constitutional Law. For example, the idea of right in China might differ because the context is different, while the idea of tort or contract, being a more technical notion, would be less permeable to broader axiological and culturally determined elements. Due to the relevant differences in these two fields, the method should vary according to the area of law in which the object of comparison is situated. Even if this choice might be plausible, the assumption that the pregnancy and relevance of culturally specified ideas and values matters more in the field of Constitutional Law rather than in those of Commercial and Civil Law may be reasonably criticized. Indeed, it may be well interpreted as a matter of degree. As a consequence, the same approach can be properly applied to Civil, Commercial and Constitutional law as well.

The experimentalist approach can be defined as a variant of the fundamentalist one. The most important premise grounding this approach is the critique moved to the universal applicability of analytical models elaborated in the West: in their respective fields, Western constitutional comparative law, legal theory, and other disciplines, have elaborated and developed models starting from distinctively Western assumptions. However, these models are deemed universally applicable, claiming to possess explanatory power in respect to any system of law. Yet, in several respects, the Chinese experience challenges the general applicability or the explanatory power of models which were elaborated in the West16. The observation Chinese legal practice through the lenses of those models often leads to conflicting results, contradictions, confusion. Law is itself a cultural product, and the role that law plays in culture and history is the layered outcome of micro-events and micro-decisions which form part of the people’s history. As some scholars pointed out17 the problems

16 For example, the Chinese case challenges the commonly held assumptions of an existing link between an efficient legal system and the well functioning of the capitalist market economy. This issue and its implications for the recognition of citizen’s rights will be addressed in Chapter IV below. In any case the models in discourse keep their explanatory power in respect to the functioning and the shortcomings of the Western constitutional systems of law, because they share the intellectual humus in which these models originally thrived.17 See Lubman (1999: 7-12).

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and the challenges that a state like China faces are not the same that mature constitutional systems are facing, since China is undergoing a process of evolution and transformation as an authoritarian regime18. For example, the starting point in observing Chinese constitutional development is often that the best system of government is the one that couples rule of law and protection of rights. The normative (maybe implicit) implication is or would be for China to adopt such a system, with the same features that, as history demonstrated, are “the best human societies have been able to think out so far”19.

It is arguable, instead, that sophisticated analytical model framed by Western theories are not apt in explicating constitutional evolutions in authoritarian regimes, as it is in the case of China20: illuminated by this light, some of the relevant factors to assess the process of evolution would not be detected. A good example may be the role of the courts21. The development of constitutional systems in the Western countries was led by the activity of the judiciary which represented a powerful counterbalance to the King22 and the governments. On the other side, the institutional weakness of courts, attributable to a number of factors of heterogeneous nature, suggests that the trajectory of constitutional development in China will remarkably differ from that which led to contemporary Western constitutional democracies. Considering all the above, the experimentalist approach aims at elaborating ad hoc frameworks of understanding, taking into due consideration the historical, cultural and intellectual characteristics of the Chinese legal and political experience, which are considered more apt both in defining the features of the system and forecasting its future developments. This approach makes use of concepts and models originated in the West, but modifying some of their aspects which are at odds with the peculiarities of the Chinese case. In some instances this approach is revealing of the theoretical prejudices of contemporary constitutional theory23.

Another variant of the fundamentalist view is the “developmental approach to research”, coupled with an attitude of “sympathetic engagement”. Andrew Harding and Peter Leyland advocate this particular approach in light of research they conducted through a collaborative and constructive dialogue with the purpose of understanding the process of legal transformation and constitutional development in

18 Among others see De Vergottini (1998); Peeremboom (2001; 2002a; 2004; 2006b; 2010), Dowdle (2003).

19 This observation is the starting point for the attempt by M.W. Dowdle (2003: 1-36) of formulating an analytical model apt to the analysis of the Chinese constitutional development. His approach is pragmatic and “equates the potential of development of the merging constitutional system to the process of institutional learning”. (Ivi: 9). The approach based upon Western theories and categories is criticized also by Clarke (1998-1999: 49-62).20 Dowdle (2003).

21 See Chapter IV below.

22 The expression ‘rule of law’ was used for the first time by Sir Edward Coke, chief of justice at the court of King James I. He fought the King’s attempts to interfere with the activity of his Court affirming that it is a rule of law for the magistrates to adjudicate in the interest of the parties and of the whole society only, and not in the interest of the authority who invested them with the office of judges.23 See Dowdle (2003) and also Clarke (2003b).

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Thailand. The expression “sympathetic engagement24“ indicates “a critical approach to Asian law which at the same time appreciates the significance of Asian law in its own theoretical and historical context”. “Sympathetic engagement represents a recognition of differences and, if necessary, an acknowledgment of the need to agree to disagree over fundamental values25“. It allows critical analysis and, on the other side, sympathetic understanding and appreciation of the observed phenomenon in its own terms. The developmental approach consists in an active engagement of the scholar in assisting the process of reform of the country she is studying, while, at the same time, analyzing the legal system of the same country. This involves discussion and a collaborative multilateral process in which the scholar entertains a dialogue with other legal scholars, laymen, public officials, judges, officials of public administration in the country she is studying. Implicit in this choice is the assumption that the best way to understand Asian constitutionalism is adopting a discursive, non-confrontational attitude rather than an inquisitorial one26. By adopting the methodological perspective in discourse to study Chinese law, the non-Chinese scholar can benefit from the explanation of concepts and direct interaction with conversationalists possessing the background of the studied system. At the same time, the Chinese legal scholars as well are benefitted by discussion and learning with a non Chinese legal expert. In this way the Western scholar indirectly contributes to the constitutional discourse and development of the country itself and becomes an actor rather than a mere observer. Moreover, the benefits of this dialogue lie in the opportunity of bringing back in the country of origin a more truthful picture of the ongoing process of legal change, beyond the study on legal texts. The critique often used towards this approach is that it allows “holding criticism in abeyance by adopting a patronizing attitude towards phenomena and values that, instead, in the opinion of the observer, should be explicitly criticized or which deserve at least dissent”27.

In my opinion the developmental approach may be the correct frame for the global dialogue between developed and developing countries. In particular, the legal cooperation between developed and developing countries28 regarding human rights issues29 is of the highest importance. This kind of cooperation may be seen as an

24 This expression borrowed by Harding from Peter Jackson (2003).

25 Harding (2008:35).

26 I have learned from my own experience that a confrontational approach in is not usually satisfactory when dialoguing with a Chinese person. Too direct or explicit questions, especially on sensitive issues such as human rights protection, in the majority of cases generate a suspicious attitude between the conversationalists; consequently the open disposition to dialogue is undermined, especially when conversing with common people. The usual answers to direct or explicit questions that may put the government in a bad light are not satisfactory, vague or at best they reiterate common places and general platitudes. Statements more respondent to the reality of legal practice of rights protection are expressed in non formal, friendly contexts, when the conversationalists perceive a disposition of trust towards the interlocutor27 Ivi: 45.

28 While China claims the status of developing country because a high percentage of the population still lives under the poverty line, the per capita GDP, on the basis of the national gross GDP, figures above Germany and Japan which are developed countries.

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alternative (in the long run) to external intervention either by the means of political pressure or economic sanctions or by force30. The legal dialogue brings about exchange and hybridization of ideas and values and in this sense is the bridge for a dialogue among peoples and cultures. The discourse about human rights is part of the dialogue between legal systems, which have profound cultural implications. China is known for being a recipient of legal models and institutions. However, from the global point of view, the reception is not neutral. The recipient is active in the sense that it changes the models adapting them to the context and this in turn might change the model itself. In the human rights legal discourse, Chinese ideas and practices may significantly change the global balance if normative relevance were attributed to them. Assumed that the developmental approach is based on a cooperative attitude and on dialogue, in order to be successful it should generally conform to the rules of a correct communication. This implies that the parties involved should be truthful, open, should not hide or neglect in discussing relevant elements of the knowledge they possess; they should be willing to cooperate and advance reasonable arguments; every part willing to participate to the dialogue should be admitted to take part in the dialogue on equal footing; etc31. These are fundamental conditions to be respected in order to return a picture as much as possible that is truthful and complete of the reality inaccessible to the other conversationalist, and of course in order to be able to consider the arguments in support of one or the other moral view sound, valid, correct. The constitutive limits of this approach are therefore connected to the conditions, ground and rules of the dialogue. It is often noted that the Chinese scholars who are closer to power or persons who speak at any title in the name of the government tend to exalt the good and wise aspects of the government decision and action. Some link this behavior to the peculiar feature of Chinese culture that tries to avoid any kind of loss of face. On the contrary, Europeans may adopt a protectionist attitude towards the danger of a potentially overwhelming Chinese power, which may be justified in some cases and not justified in others. In such circumstances it is difficult to speak of “dialogue” because dialogue involves being truthful as a matter of respect for the other conversationalist. Notwithstanding the relevance of this issue, it is only hinted and not discussed in the works of Harding and Leyland.

The last variant of the fundamentalist approach is called “functional”. The functional approach32 focuses on the function of the legal rules and institutions. This

29 For example, the European-Chinese cooperation on the field of legal studies in general and human rights in particular may be regarded as an experiment. 30 The debate upon the legitimacy of forceful intervention in case of gross violation of human rights cannot be addressed here in full. Some regard the forceful intervention as legitimate in some cases (Rawls), other regard it as always illegitimate in the name of the principle of self-determination of peoples (Zolo 2007). Others consider even economic sanctions as forceful intervention and deem they should be considered illicit (Carty 2007). But great importance in the discussion must be attributed to the description of the circumstances that would allow a forceful intervention.31 The rules of moral discourse are articulated by J. Habermas and could be applied to cross-cultural dialogue as well. See generally Habermas (1981; 1983).32 Pegoraro & Rinella (2002: 51).

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approach is advocated by Stanley Lubman33, who explicitly faces the question of methodology, fully aware that enquiries in Chinese law from a Western perspective raise issues on the perspective itself. “As Westerners” he writes, “our own assumption about the nature of law, its historical development, and its impact on relationships among the state, society, and the individual, uncritically shape our observations about Chinese law. … Chinese and Western legal institutions sometimes appear so disparate that comparing them “seems hardly appropriate”“34. Lubman acknowledges that an approach based on function may not be satisfactory: “Functional analysis has been rightly criticized for leading the researcher to “make assumptions about the way social system functions in terms of postulated needs which imply the way such system should function”35. Notwithstanding the recognition of these insufficiencies, Lubman chooses to adopt a perspective that “merely tries to analyze the relationship between particular closely defined social phenomena” in a search for what the great comparatist Erns Rabel called the “social purpose” of legal institutions”36.

As Lubman himself points out, the critique to this method is based upon the objection that the function of a certain legal rule or institution is identified using criteria which are proper of the culture of the interpreter. The obvious risk involved in this operation is the inappropriate or erroneous attribution of a function to a rule or institution. Moreover, the legal language is a mixture of technical and ordinary terms. When it comes to interpret the meaning of terms such as contract, rights, property, tort or crime, the danger may arise of allowing categories of analysis to be ‘influenced by the normative agendas that are embedded in the legal terms themselves’. As Scogin correctly points out, the evaluation of the usefulness of a given term in studying Chinese legal experience involves the explication of some of the implicit assumptions that underlie their use by legal scholars and legal historians37. Lubman begs the question by saying that the fundamental objection to the functional approach can be rejected, but does not articulate the supportive arguments for this assertion in full. Moreover, he justifies the adoption of the functionalist approach by remarking that it possesses advantages, notwithstanding the critics raised by the legal culture approach, which holds that law can only be understood in the light of the historical, economic, ideological context of reference. In favor of the functional approach it may be said that the differences are less profound after the intense imitation and dialogue that occurred in the last three decades.

The choice of the methodological approach is influenced to a certain extent by the idea of law embraced by the interpreter. If the law is understood as a set of legal rules, the knowledge of the cultural context and history may be presupposed to a strictly and

33 The issue of the methodological approach to be adopted in studying Chinese law is addressed by Lubman in several of his works. See generally Lubman (1969; 1970; 1976; 1983; 1991; 1999).34 Lubman (1999: 11-12) acknowledges that comparison between West and China involves taking in due consideration the respective legal histories and traditions.35 Ivi: 36.

36 Ibidem.

37 Hugh T. Scogin Jr. (1994: 14).

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rigorously juridical analysis in its method and object. This idea of law seems to hint toward the adoption of the relativist approach. The understanding of law as a legal discourse, instead, even if it is perfectly compatible with the adoption of a relativist position, appears to be an argument in favour of the adoption of the fundamentalist approach. Law, understood as legal discourse, includes the rules but also the education of the jurists, the organization of justice, the criteria and method of inference and interpretation used in the legal practice. Law as a legal discourse “includes the logical categories that serve to distinguish subjects, the concepts that define them in the system, the conceptual elaborations and the argumentation that explains ideologically and technically the rules and the legal solutions”38. The law and the legal system are not merely regarded as the whole of the legal rules applicable to individuals in a given social group (which is generally, but not necessarily, organized in the form of a state). The legal system is instead considered as being composed by the whole legal rules and their interpretation and practice. As a consequence of embracing this understanding of law, the method for approaching the study of law in China, should adopt “the type of textured, reflective examination that Clifford Geerz terms “thick description”“39. On the contrary, usually “legal academics place little value upon descriptive work in legal scholarship”40.

If the law is understood as a cultural product, in some sense it is true what Watson writes: “[l]egal culture is legal tradition, and legal tradition is legal culture, but with an exception. Those living the culture, namely lawyers, including judges and law professors, are usually unaware of, and indifferent to, history”41. If the affirmation quoted is true, the precaution of articulating the implicit premises of which legal interpreters are often unaware is a necessary effort in order to minimize undue overlapping of concepts or misunderstanding in describing a different culture.

Several reasons may be adduced for rejecting or adopting one of the above-described three models in relation to the aim and purpose of the present research.

The defenders of the relativist approach warn that language does not only express reality, but also shapes it. The supporters of the relativist position assume a reasonable defensive attitude: the usages that fall short of a given definition of a concept, the core definition, or notion, can be criticized as improper, erroneous, or misleading. The Chinese selective adaptation42 and the uses of terms such as ‘human rights’, ‘Constitution’, may in some cases be regarded as improper or even illegitimate. For the linguistic usages that fall short of the ‘proper’ or ‘correct’ interpretations, a completely different terminology should be used, or instead they should not claim to represent instances of the theoretical model. To this justification for the adoption of

38 Pegoraro & Rinella (2002: 53).

39 Geertz (1973: 3-10).

40 Alford (1970: 947).

41 Watson (2004).

42 Potter (2003: 119-150).

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the relativist position may be advanced a charge of imperialism. The first critical point of this position is represented by the difficulties in stating a core conception or a core definition of concepts such as the concept of human rights. The function of this core notion could be that of defining the minimal elements of any conception of human rights that every interpretation must possess, providing a notion for testing the others. If, for instance, other accounts of human rights do not possess the core elements of the notion, then they cannot be named accounts of “human rights”. The first step is, therefore, to be able to state one clear definition of the notion of human rights. The problem in finding this common notion is that philosophers sharply disagree on the issue. Defenders of the adoption of a relativist position implicitly assert that China did not merely operate a redefinition of the notion of human rights according to its cultural peculiarities and actual conditions. But, instead, Chinese interpreters elaborated a “stipulative” notion. Stipulative notions “set radically innovative meaning in respect to the current use of the notion; therefore, they either attribute old meanings to new expressions or set new meanings for existing expressions. (…) stipulative definitions can be proper or improper instead of true or false”43. The reshaping of the concept of human rights by Chinese authoritarian regime and the claim that the definition is justified by different cultural underpinnings, which characterize Chinese culture (but are not shared by people who do not recognize themselves as members of the Chinese community) may be used as a justification for various forms of repression44. The relativist approach would allow thought-out criticism for the results of the reshaping of the concept of human rights by Chinese scholars and authorities as proper or improper, correct or incorrect.

The concern of the advocates of the relativist approach and the reasons they put forward seem to be sound and deserve due attention. Yet, this approach overlooks that there is a difference between understanding and evaluating. The relativist approach seems also to disregard that the practice of law consists of both implicit and explicit rules. If it is held that law is contained in books, then the relativist approach is a good choice. If, instead, law is regarded as being constituted by a positive legal text and implicit rules as well, and if it is acknowledged that, in interpreting the law, extra-legal elements also come into play, then a methodology that takes in due consideration the cultural practices is better suited to fully understand legal phenomena. The adoption of an internal perspective, a point of view from within, helps in understanding the implicit commitments of the participants to the legal practice and identifying the “practical alternative rules” which come into play in the practice and determine which kind of rules will apply in a given situation. For example, even if a valid legal rule exists and is theoretically applicable to the case, it may nevertheless not be applied due to implicit rules of legal interpretation, or to extra-legal rules known to the participants to the practice. They may be willing to choose a legal path or other, non-legal, paths, following rules that can be more

43 Schiavello (2010: 19).

44 The charge of ‘ignoring dictators’ is addressed on the bases of the above mentioned argument. See Donnelly (1997).

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generally qualified as socio-relational in nature45, or, instead, such kind of rules may influence the interpretation of the existing legal rule to a remarkable extent.

In order to really understand the terms of the practice as they are understood by the participants to the practice, the interpreter should personally identify with one of the participants to the practice, adopting an internal point of view upon the practice which is the object of study. The distinction between explanatory reason and justificatory reason is relevant here. Explanatory reason are reasons which explain why an action was performed or a belief is held; justificatory reasons justify as good, correct or fair the action that was performed. The distinction between the two kinds of reason is not sharp because it is not always easy to qualify a reason as a good reason to justify an action or a belief. This distinction is partially convergent on the distinction between internal and external points of view. In fact, if one adopts the internal point of view in respect of a reason, this reason could be understood as a justificatory reason, because it justifies the behaviour or beliefs of the people who adopt it46. The adoption of the internal point of view may help understanding the justificatory reasons held by the participants to the practice. The participants to a practice orient their behaviour to values and commitments that can be described or understood only by the adoption of the internal point of view47. The adoption of this perspective seems to entail the suspension of judgment as a necessary attitude for the observer to adopt. But the judgment may be suspended only temporarily and a more critical attitude recovered successively. Alternatively, the interpreter can adopt a critical point of view. The problem is that the choice of this latter approach may impede the grasp of the actual characteristics of the practice.

A warning in relation to the adoption of the relativist approach comes from Alford. Since Mao, attempts have been made in China to develop a legal system with the characteristics of a modern system of law. These changes have been welcome as innovations which will eventually lead to a rule of law system or, on the contrary, as a mere facade built up by the leadership “in an effort to restore within the ruling elite a set of rules that would enable them to play their usual game in less murderous conditions” 48. The reasoning by Alford is based on three assumptions. First: the Chinese adopted the legal jargon familiar to the Western observer; second: the adoption of this language leads to expect that the legal system will be used “as we believe we do when we use it”49; third: Chinese do not meet the expectations causing the interpreters to think that the adoption of legal language by Chinese is wholly cynical. Alford concludes that it is precisely because the recent developments of Chinese law make it appear less distant and different – because of the legal jargon

45 The choice of one of these paths depends upon several factors that would deserve further research that is not possible to conduct here. 46 Schiavello (2010: 19-22).

47 Hart (1994: 55-57).

48 Alford (1970: 954).

49 Alford (1970: 954).

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used, because of the intensification and significance of the academic and economic interactions, and so on – compared to the traditional or imperial law, the scholar should pay more attention and be more vigilant in examining the later developments of law. The problem lies in the adequacy of the use of Western standards (due process, human rights, judicial review of legislation) as standards of evaluation and as a framework for the inquiry in that field. Deceived by the use of a similar language, the interpreter may be inclined to think that Chinese too are willing to “organize their legal and economic systems as we believe we wanted to organize it”. Alford suggests that in order to understand what is implicit in the use of Chinese legal jargon, the observer should use philosophical, sociological and linguistic tools. These instruments will help in understanding the selective adaptation50 of the legal method, rules and jargon to the local tradition. Even if the approach of the present research is fundamentalist, the reasonable concerns of the relativist approach are shared by the author. However, it is precisely because criticism should be addressed when legitimate, that there is the need to know and understand first Chinese legal practice first in its own terms, but clearly dismissing any sort of condoning attitude.

2. Issues of comparability/commensurability between Chinese and Western discourses of human rights.

In order to carry on a cross-cultural enquiry on human rights it is necessary to state one’s stand in relation to two different philosophical questions: first, the possibility of understanding the meaning of a concept expressed in a different ‘language’ and, second, the comparability or commensurability of concepts and values51. Both problems will not be addressed in full, but rather discussed to the extent necessary for an understanding of the issues and for the articulation of the point of view adopted in the present enquiry.

2.1. Understanding and evaluation.

The possibility of understanding the concept of human rights expressed in the Chinese language by interpreters belonging to a different community is important because it constitutes the ground of conversation. But is it possible to understand a

concept expressed in a different “language”？A ‘language’ may be defined as a system of communication and meaning, a social

practice engaged in by groups of people52. In a language shared by a discursive community are embedded different ideas, views and ways of understanding the world.

50 Potter (2006: 389-396).

51For discussion upon the interactions between ethical discourses, on general problems of ethics in a cross-cultural context see Pohl & Müller (2002); Schmale (1993); Bell (2000); Pohl (1999); Lin Xiaoxin (1999); Munro (2005); Shen (2003).52 Angle (2002: 27).

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One formulation of Wittgenstein’s thesis concerning accord in judgment holds that problems of meaning, understood as questions of translation, can only be solved from the perspective of the cultural horizon in which the language is used. The values and the common beliefs of a culture shape the meaning of the language53. As a consequence, the meaning cannot be understood without understanding the common values and beliefs of the culture and discussion about problems having practical nature cannot be carried on between people who do not share a common cultural background, for the very reason that the paradigm of understanding would differ. Paradigms of understanding include description and evaluation. If different cultures are considered as having reciprocally incommensurable paradigms of understanding, the discussion upon the solution of practical problems is inhibited because “both agreement and disagreement are impossible to reach between people belonging to different cultures”54.

The correct approach to this problem seems to lie in the theoretical distinction between agreement and understanding. The world pictures embed a certain distinctive set of believes about the world and also a way of ordering the interests to which people attribute value. Assuming there would be a dominant way of ordering interests (and it may be a serious issue how to determine which one among the others has to be considered the dominant way), it may differ between different cultures, as well as the kind of interests deemed valuable may be different. So the evaluation of a specific way of ordering interests may be judged as wrong or inappropriate by an interpreter with a different cultural background. The reasons why a certain culture values an interest highly, or rather does not value it at all, may be unknown, but they are nevertheless knowable. The non-Chinese observer may for example judge as wrong both the kind of interest that makes part of the world view of Chinese dominant morality and the way of ordering them (and vice-versa, of course). But this judgment seems to be determined by the tendency to consider a certain set of interests as the proper set for human life. This is a consequence of the claim of universal correctness regarding the moral syntheses, principles, rules and solutions any morality theoretically advances. The possibility of a cross-cultural dialogue lies in the recognition that it is possible to understand the world view and hierarchy of interests different from our own, without agreeing with it. The main reason why philosophers have found cross-cultural communication problematic is that most believe that successful communication involves coming to share something with another55. Yet, in discussing issues of practical choice and its justifications, understanding does not necessarily mean agreeing or sharing the other’s believes56. Evaluative incommensurability, incommensurability regarding evaluative notions, has to be distinguished from the incommensurability of meaning, which implies the

53 The thesis in its anti-divisionist formulation is analyzed by Celano in the reconstruction of arguments in favour and contra Hume’s argument known as naturalistic fallacy. (Celano: 1994).54 The arguments above are articulated in Celano (1994: 589).

55 Angle (2002: 33).

56 Celano (1994: 294 ss)

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impossibility of understanding. Generally this statement would be compatible with the philosophical views which separate understanding from sharing and/or agreement. The attitude towards this issue may depend on which kind of philosophical view is held by the observer: whether a philosophical view which tends to separate understanding and agreement (or attunement), or one that tends not to separate them.

For example, Confucian philosophy is committed to the conjunction between understanding and agreement or sharing the same views. This could be an inherent obstacle for Confucians in the way of dialogue and understanding. As well as it may be for other similar philosophical views.

In any case, while conducting the discussion about human rights, the principle of charity should apply. Davidson’s formulation of this principle entails avoiding the attribution of false beliefs to participants and sticking to the interpretation that the participants attribute to the concept57.

2.2 Cultural commensurability/ comparability.

Incommensurability is commonly understood as a lack of common measure, without which it is not possible to specify the exact measurement of things.

The views upon the issue of cultural commensurability/comparability58 in cross-cultural studies may be ascribed to three main groups. Some scholars hold that concepts and values are always comparable. Some scholars hold that concepts and values are comparable in some cases but not in others, and therefore commit to a sectorial idea of comparability/incomparability59. Some others60 instead commit to the

57 See Donald Davidson’s essay Radical Interpretation (1984).

58 See Raz (1988: 321-366). The reasoning about incommensurability/incomparability of values and bearers of value is used by Raz to refute what he describes as ‘the second feature of consequentialism’, that is, the ‘believe in comparability’. Raz argues that ‘values and valuables are to a large degree incommensurable’ (Ivi: 321), and denies ‘the truth and not the meaningfulness of judgments of comparability’ (Ivi: 323). ‘Incomparable’ and ‘incommensurable’ are treated by Raz as equivalent terms, while he distinguishes ‘incommensurability’ from ‘indeterminacy’ of value, that is when it is neither true nor false that of A and B either one is better than the other or they are of equal value. The definition of incommensurability given by Raz is that ‘A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value’ ( Ivi: 322) and the test of incommensurability is the failure in transitivity: ‘Two valuable options are incommensurable if (I) neither is better than the other, and (2) there is (or could be) another option which is better than one but is not better than the other.’ (Ivi: 325). In any case, Raz discusses incommensurability between ‘individual options’ (Ivi: 323). The incommensurability between values in general is often manifested in cases such as those defined by Angle ‘moral schizophrenics’: these are people holding different sets of values which are incompatible and are sometimes forced to choose between them in their real life. In the cases now described the person is forced to make a choice which becomes an existential rather than a theoretical determination. (Angle 2002: 67). See also Chang (1997); Pearce (1987) for an analysis from the perspective of logic; Wong (1984) Angle (1994); Biagioli (1990: 183-209). Biagioli argues for a third way to understand incommensurability between rationalists who rule out the very existence of incommensurability and relativists, who instead take it as a datum. Incommensurabulity emerges ‘diacronically in relation to the socioprofessional identity and relative power and status of those involved in the non-dialogue’. He argues that, ‘while incommensurability may appear as a problem to those who view it synchronically, that is, as a result of the linguistic structure of already existing theories, its diacronical analysis suggests important clues about the process paradigms and socio-professional identity develop out of previous ones.’ (Ivi: 213).59 MacIntyre (1991: 104-122).

60 Claims of incommensurability are raised by Ruth Benedict in the context of ends and means of different societies and by Thomas Kuhn in scientific practices and their vocabularies.

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absolute incommensurability of values and concepts. Therefore, in cross-cultural dialogue about human rights some hold that conversationalists may be able to agree upon a concept, thus setting the ground of conversation and potentially for agreement upon practical matters; others hold that conversationalists of different cultures may be disagreeing about certain concepts or about some characteristics of certain concepts, and the third group hold that we are using irreducibly different concepts. The view of the first and the second groups theoretically permits the achievement of a consensus or agreement upon questions of practical nature. If value and concepts are commensurable, nothing stands in the way of the commensurability/comparability of concepts between two different cultures since it should be possible either to find a sound and apt equivalent in the other language or to find the existing corresponding concept. If “there are always conceptual differences between us, even if we speak the same language…conceptual differences…need not to stand in the way of successful communication”61. In Angle’s opinion, the difficulties of dialogue are not to be found in the conceptual differences but in the lack of the will in cooperating and dialoguing or in the lack of the grounds for cooperation (which in his view can be absent, or lacking if the differences are irreducible).

Alsdair MacIntyre has argued that incommensurable discourses between certain traditions can be made commensurable if certain conditions are met62. The starting point should be the admission of fallibility as a condition of a fruitful and worthwhile conversation with rival moral and intellectual traditions. This in MacIntyre’s view entails for the conversationalists to take into full account that, as a result of the discussion, the point of view sustained on the basis of the intellectual and moral resources of one’s own tradition may have to be abandoned.

Another argument supporting the commensurability between values, concepts and ways of reasoning which characterize different cultures comes from the interpretation of the notion of culture. The etymology of the word “culture”63 conveys the meaning of the act of practice of cultivating the soil; but it may also be referred to the action of venerating something or someone. The ambiguity in the usage of the term culture lies in the nuances of the two meaning above. The understanding of culture as a product of man, allows regarding culture as changeable, evolving and dynamic, while the understanding of culture as given, sacred, implies regarding it as unchangeable. The products of culture such as human rights are alternatively understood as modifiable notions, products of history, which were formulated and evolve as a concept, and have been the object redefinitions and reshaping, and may one day even loose the role they

61 Angle (2002: 26).

62 MacIntyre (1988) argues that genuine moral traditions can, at least sometimes, be compared and assessed through a process of comparative internal criticism. Another claim by MacIntyre is that “conceptual differences between competing moral traditions can be so great that traditions are rendered “incommensurable” see A. MacIntyre (1991). 63 The word culture is derived from the Latin verb colo, -is, colui, cultum, -ĕre, which means to cultivate the soil, which conveys the meaning of culture as something which needs care and cultivation to be acquired and to grow.

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play in the contemporary world and be forgotten64, or as monolithic, unchangeable and even somewhat absolute, sacred, in the sense that they are not at men’s disposal.

Culture is a generalized term. Every culture is constituted by individuals who identify with some characteristics and form a group. The individual has certain beliefs, values and preferences. If it is possible to understand another individual who shares the same cultural background of the interpreter, then it is also possible to understand an individual who identifies, belongs, or has been raised in the context of another culture. It is just a matter of degree in difference or in shared assumptions, that is, in the assumptions which are known to both the interpreter and the speaker. In this respect the dichotomy known/unknown must be distinguished from the dichotomy commensurable/incommensurable. It may be argued that the labelling of a notion or concept or value as incommensurable is sometimes trivially due to the lack of sufficient data and information. Of course, lack of information between conversationalists does not only cause the impossibility of understanding but also equivocation and misunderstanding.

Another argument in favour of cultural commensurability is the communicability of paradigms of rationality. If a paradigm of rationality can be expressed and understood, then values, concepts, system of beliefs forming that particular paradigm can be expressed as well.

According to Angle it is better to define languages as incommensurate rather than incommensurable because language in itself is open-ended and dynamic. He adds that distinguishing between languages is bound up with norms, power relations and self understanding. Two languages are considered incommensurable when “divergences of practice and vocabulary are so pervasive that the task of enriching one language and so being able to score an interlocutor’s utterances seems hopeless (…) “Incommensurable” sounds as a relation that stands for all time: If language A is incommensurable with language B, the sentences of the one can never be correctly translated into the other”65. This is considered to be a lack in the grounds of cooperation because it is not possible either to agree or to disagree on practical questions. Angle critiques the notion of incommensurability, arguing that it is too blunt an instrument because the argument of incommensurability only leads to two conclusions: either two ideas, notions, concepts, values are commensurable, or they are not. Moreover, Angle argues that incommensurability is a matter of practice because “the commitments of one’s community can help to shape the words one uses”66. The theoretical framework used by Angle to understand the discourse of human rights in China is based upon Brandom’s approach to meaning. This approach defines concepts as pattern of commitments. It is considered a good explanatory theory for the process of evolution of the human rights discourse in contemporary China. In this perspective, the determination of whether two persons are disagreeing

64 See Clelia Bartoli (2009: 45-78).

65 Angle (2002: 44).

66 (Ivi: 47).

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about a shared concept, or are using two different concepts, “is in significant part a practical question about with which community they identify and thus to which norms they are subjects”67.

Angles recalls that the term human rights was not used in China but was introduced into the vocabulary at the end of the XIX century. Among the different terms used to indicate rights, the one that is more frequently used is 权利 (quan li). The circumstance that in Chinese language the term human rights was not known and was imported there from Western countries would seem to suggest that Chinese had no need for the concept68. But since the Chinese have adopted the concept, it may be said that it is now in some sense part of their culture.

The choice of the adoption of Brandom’s approach to meaning is criticized by Peeremboom. He raises one main objection: the switch from viewing concepts as shared-meanings to the more practice-oriented commitments approach to concepts does not provide meaningful criteria for determining when commitments are sufficiently similar or different to decide claims that people are using the same concept or different concepts. Accordingly, it does not solve the philosophical issues that arise in assessing claims such as “ “Li Buyun and Joseph Raz are using the same concept of rights” or “China has a distinctive rights discourse and thus rights are contingent rather than universal” or “China has a rights discourse similar to that in the West”, which supports the view that rights are universal”69.

This objection is implicitly based upon the distinction between two different notions of concepts, the ideal and the ordinary ones. Maria Cristina Redondo warns about the problems that the possible overlapping of the two different notions of ordinary and ideal concept may cause in analyzing specific ordinary interpretive or evaluative concepts. In discussing human rights, as Redondo points out, reference can be made to the ideal or to the ordinary concept. Ideal concepts are delimited by a coherent set of properties, which are considered to be essential for the concept, and therefore have to be satisfied. Any other property or content attributed to the concept is determined in relation to that core concept. Ordinary concepts are instead determined by the understanding of participants to a practice in which the concept is used and is applied. The participants are successful in identifying instances or examples of the concept in the practice and it is precisely the successful uses that determine the content of the concept. Therefore, the understanding of the content of the concept varies if the concept is the ideal or the ordinary one. Since many disagreements may be easily explained by saying that one is referring to the ideal concept and the other to the ordinary concept it may be useful to clarify which concept is in discussion. The objectives and characteristics of the activity of

67 (Ivi:46).

68 As Angle (2002: 43) notices, sometimes the addiction of a single world is unproblematic and “the latter’s vocabulary can readily be used to score utterances concerned with the former”. But in some cases the addiction might be problematic, that is, when the terms to be added are a cluster of terms.69 Peerenboom, (2005: 324-327).

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identifying concepts differ as well if the concept analyzed is an ideal concept or an ordinary one. An enquiry of the ideal concept of subjective rights, for example, will concern: the value protected by the notion and what justifies the qualification of something as a subjective right or human right70. The concept to which Angle is referring is the ordinary concept as it emerges in the linguistic usage. In Brandom’s approach concepts as pattern of commitments seems to refer to ordinary concepts. In this usage vagueness and contradiction may emerge, in fact, a practice may instantiate different ideals contrasting with each other: any ordinary concept may be referred to different ideal concepts. In order to reach a global understanding upon the concept of human rights, the focus upon the ordinary concept of human rights in the Chinese context may bring ambiguities and contradictions. This is precisely the focus of Peeremboom’s objection: “the commitments approach is not very useful philosophically if two people can score commitments in very different ways, or include some commitments and not others in the calculus, and thus reach different conclusions on whether they are using the same concept of right. At least this failing is more than a little problematic for a philosophical account of concepts that purports to promote cross-cultural dialogue by allowing us to sort out claims about whether we are using the same concept or different concepts, whether we mean the same thing by "rights," and whether China's rights discourse is distinctive”71.

The need to be able to use concepts in a non-equivocal way, of being sure that the concepts used by the parties are the same, or if China has instead elaborated one or many different concepts of human rights, which differ from those used in the Western discourse, is certainly a philosophical question. Of course, the relevance of this question may be modest if the target were to assess the actual application of human rights in people’s everyday life.

3. Comparison between ‘rival’ ethical systems.

The investigation of some notions elaborated within the Chinese moral tradition will be undertaken in the present work for the reason that it is considered relevant in order to assess if some moral concepts of this tradition possessing normative value can be universally recognized as a legitimate ground for a distinctive Chinese concept of human rights, and perhaps delimiting an area of justified moral disagreement regarding human rights. This investigation in comparative ethics has philosophical nature. Rosemont warns about the obstacles that may be encountered in carrying on an enquiry in comparative philosophy72. The first is the obvious but very relevant issue of linguistic accessibility. The linguistic hegemony of the English language in which the dialogues are generally conducted sometimes penalizes the Chinese conversationalists, due to the very simple reason that, in the translation from Chinese

70 See Redondo (2010: 151-157).

71 Peeremboom (2005b: 325).

72 Rosemont (2004: 51-53). The present research, being not a research in pure comparative philosophy, nevertheless engages with some issues of comparative philosophy and comparative ethics.

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to English, some Chinese expressions partially lose their meaning; moreover, some concepts such as rights, justice, democracy, or more strictly philosophical jargon like paradox or dilemma, and so on, do not have an exact equivalent in Chinese. Linguistic problems are somewhat easy to be solved, overcome or bypassed, even if not always in a fully satisfactory ways. Nevertheless, the risk is that the resolution results in linguistic and epistemic imperialism of the West. The normative rule to be respected seems to be “allowing the other their otherness”73, which entails giving due space and acknowledging their differences. The second methodological difficulty is the different style of philosophical works: hypothetico-deductive and analytical in the Western writings and allusive, symbolic and figurative in the Chinese philosophical writings74. It is difficult to understand the points made in the argumentation by philosophers belonging to the other tradition, especially the classical ones, without prior specific training. Thirdly, the Chinese philosophers generally adopt an integrating approach that merge together religious, ethical, political, aesthetical and metaphysical aspects75, while instead the analytical distinction of these terms characterizes not only the style but the also contents of at least a relevant part of Western philosophy in general.

Enquiries of comparative ethics have the effect of making our moral system appear relative, as only one of the main alternatives: “[a]wareness of different moral systems with different moral beliefs warrants a mild degree of scepticism but does not undermine the reasonableness of making any evaluation”76. From this it does not necessarily follow that morality is itself relative. The role of moral comparison is to “inform the traditions about each other and thus stimulate moral discourse, but may not otherwise “guide” or adjudicate the shape of the final synthesis” in practice. As pointed out earlier, the possibility to consider legal cultures in universal or value-free terms seems chimerical, since when engaging in broad theoretical work one uses conceptual frameworks, which are resulting from the values and traditions of one’s own culture77. Some of the salient moral aspects of the present days China, for example, are certainly shaped by the centuries long spread of Confucianism from China through East Asia, among other influences, constituting a “plausible moral world that, while not wholly congruent with the liberal one, might be able to provide useful resources toward a more ecumenical planetary ethics”78. Human rights can be

73 Rosemont (2004: 49-71).

74 The style of the books in which Confucian teaching are collected is aphoristic; the problems are not analyzed in a systematic manner. Incisive sentences or anecdotes bear ethical principles. The disciples of Confucius, Mencius and Hsun Tzu, instead, developed a more orderly stile of writing, but allusion or examples are preferred to a reasoning consisting of a chain of arguments leading to certain conclusions. However, the Chinese philosophical tradition also knows different styles of argumentation. For example, the critique of the lack of a stringent argumentation was addressed to Confucian philosophers by a scholar called Mozi, the founder of the classic Mohist school, 墨家 (Mo jia).

75 The integration of different aspects (for example rules and emotions and so on) may be an interesting aspect on which the moral comparison between Chinese and Western philosophy may focus.76 Hansen (2004: 78).

77 Alford (1970: 946).

78 Sullivan (2007: 202)

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used to give “an illustration of the role of comparative ethics in normative reasoning” but this role is limited and depends on respect of “three conditions of normative respect”79. With regard to the limitation of the role of normative ethics, the main point to stress is that the normative relevance of ethical comparison is not direct, that is, the results of the moral comparison do not imply that one should adopt the alternative emerging from the comparison. The result of the mental experiment that compares morally different traditions does not directly affect the moral choices of any tradition, which therefore do not have to abandon their respective system of moral justification according to the results of the experiment. Nevertheless, the normative relevance of comparative ethics may be indirect. It lies for example in the fact that the set of beliefs among which the discussant of one tradition must achieve reflective equilibrium, after the moral comparison, will include a belief about another morality80. Turning to the “three conditions of normative respect”81 that a moral tradition must possess in order to be normatively significant for a ‘rival’ or ‘different’ moral tradition82, these are specified by Chad Hansen as follows: first, the rival moral tradition must be significantly different in its conceptual or theoretical approach; second, it should be an intellectually rich, reflective, hierarchical system of norms; third, should satisfy some plausible conditions for substantive rightness (e.g.: has been historically successful or leads to the correct moral judgments)”, or “[i]t “yields moral insights that impress us from our present point of view”83.

The conditions for conducting ethical comparison include that exclusive appeal to tradition (intended either as a fact, or as an argument of authority) to justify a certain moral position should not be allowed. This kind of justification, in fact, underestimates the power of a tradition to articulate valid justifications other than the very fact of its existence, therefore reducing its value to a condition of fact. Instead, the person belonging to a certain tradition, in participating to a broad ethical confrontation, should justify her moral stand on the basis of what is correct in the light of facts and of the available rules of reasoning84. In this case, for example, ‘the ideas that can be extracted from the Confucian tradition must stand on their own merits and bear normative relevance to one's own moral philosophizing to the extent that they

79 Hansen (2004: 72).

80 (Ivi: 74).

81 Hansen (2004: 78-79).

82 That is, to be able to destabilize the firmness of one or many moral conclusions of the other tradition. A clarification concerning the adjectives ‘different’ and ‘rival’ concerning the moral tradition is needed. These terms do not hint at considering moral traditions as completely heterogeneous, non-intelligible, non-communicative between each others. As it will be specified below, moral disagreements within a certain moral community and those between two different moral communities are a matter of degree. However, the principles, the hierarchy of values, and the behaviours requested or considered correct, the beliefs, etc., may differ significantly. 83 Hansen (2004: 79).

84 Ivi: 79.

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present a sufficiently different but credible alternative to the ideas in one's home tradition’85.

Another condition for cross-cultural moral comparison is the acknowledgment that the moral disagreements within a certain moral community and those between two different moral communities are a matter of degree and not the symptom of completely heterogeneous, discontinuous, or isolated moral traditions (even if intuitively it may be easier to think the opposite).

The line of enquiry in the perspective of moral comparison will be driven by the elements which help us to understand the contemporary within China discourse upon human rights. This also includes the analysis of the notion of law and the theorizing upon the connection between “law” and “morality”.

4. Significance of a Chinese-Western comparison.

The present study aims at contributing to the field of Chinese legal studies and to that of human rights studies in several ways. First of all, the significance of this enquiry lies in the acquisition of knowledge for its own sake. As Harding notes, comparative studies are often driven just by curiosity sustained through academic freedom: the importance of the knowledge so acquired and the actual uses or applications of such knowledge are rarely noted by the researcher at early stages, and are often unpredictable at the time of their acquisition86. This research explores an area of Chinese law, which has only recently begun to be observed and studied. In fact, Chinese legal studies have been often motivated by economic purposes: corporate law, commercial law, international private law and civil law have been, and still are, privileged areas of interest. It is also true that the ascendancy of the language and practice and institutions of human rights has spread in the Asian region and in China in recent times87. As Albert Chen notes, even if these countries have to some extent inherited significant elements of US and European constitutional systems of human rights, at least nominally, and although social practices differ from that of the US, in the places in which the commitment to rights has been firm and energetic (as for instance in India) the interplay between the cultural concepts and the concept of human right resulted in an enrichment and a development of the latter88. Therefore it may as well be the case that Chinese understanding of human rights may contribute to enrich the global understanding of the notion.

85 Ibidem.

86 Harding, Andrew, ‘Asian Law, Public Law, Comparative Law Stir Fry: Theory and Methods Considered’, in Groppi, Piergigli, Rinella, Asian Constitutionalism in Transition, pp 19-45, at 26.87 Chen (2006: 506).

88 Ibidem. The human rights discourse in China can be compared to a system which has a variable behaviour, which depends on some internal parameters. These parameters are microscopic but influence the overall picture at a macro-level. The penetration of the human rights idea in China, in a context which gives due consideration to Chinese agency may be regarded as a matter of large-scale historical forces working themselves out, or as the result of local, contingent developments. As much as they were local and contingent, though, they were not arbitrary.

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Moreover, the present study aims at deepening the understanding of Chinese constitutionalism, by analyzing how it is related to underlying processes of change in Chinese economy, society and politics, and to its own past tradition of thought.

Lastly, and most importantly, for the reason that the thought of Chinese jurists is less investigated outside China, the construction of a theoretical frame for the different positions of Chinese jurists about human rights issues, the acknowledgement of the theoretical developments and underpinning of the notion of rights in China and the investigation of principles that justify different doctrines or behaviours by the Chinese community (intellectual and political) is a contribution to human rights theory.

Meanings are the result of complex processes and forces, and they change in the course of history. Human rights may have a different meaning in China, which is competing with other meanings, or may modify the meanings assigned by others to the same concept. The investigation in moral and legal history of China is justified by the need to assess the claim that the Chinese conception of rights is different from the one in the West. This investigation is also significant because it could help the peculiar elements of the Chinese moral tradition to emerge, in fact, “the Chinese rights tradition has rich resources that thinkers today can call upon”89.

5. Chinese legal pragmatism.

Scogin90 suggests to avoid adopting a positivistic point of view in analyzing the legal phenomenon in China: even if the basic assumptions upon the nature and role of law as theorized by the Legalist school91 may be compared and paralleled (not disregarding some major differences) with the classic tenants of legal positivism, nevertheless, this would be a reductionist approach in analyzing the phenomenon of law in China because law, since imperial times, included moral considerations and was more than the use of coercion by the emperor. However, a natural law perspective upon Chinese law would not be adequate either (as it is extensively argued in chapter II below). Pragmatism, instead, seems to be a thread passing through the whole legal history of China. Today, as well as in the past, the legitimacy of Chinese political authority possesses strong pragmatic accents. The theory of the Mandate of Heaven92

was the justification of the take over of the power by different dynasties (see detailed discussion in Chapter II below). According to this theory, “a man chosen by Heaven because of his superior qualities was entitled to revolt against a tyrant or to replace a decaying dynasty”93. Even if this theory possesses strong substantive character, the pragmatic element of the success of rebellion is decisive to ground legitimacy in the

89 Angle (2002: 19).

90 Scogin (1994: 22).

91 The Legalist or 法家 Fa jia is one of the main classic legal schools. It has often been compared to the positivist school of thought for its basic assumptions. It will be described in Chapters II below.92 The Mandate of Heaven 天命 is a doctrine elaborated by Ru jia, 儒家, which was initiated by Confucius.

93 Liu (1991: 328).

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common people’s perception, partially irrespective of the motives of the rebellion or in the ideas purported by it (although not excluding a genuine adhesion to them).

The uses of Confucianism by the Empire, first, and by the Communist party, later, are characterized by “politicization” of this doctrine and by a use of its appeal on the people to win their support94. The described use of the doctrine was therefore clearly pragmatic.

Confucianism itself has been defined as a pragmatic doctrine95.

Another sense in which pragmatism has been used as a prism to look at Chinese philosophy is the alleged parallel between American pragmatism and Confucianism. The idea that American pragmatism is the specific strand of the Western tradition to be used in analyzing Chinese legal practice was firstly suggested by Hall and Ames also because in their opinion, pragmatism was considered as superior to all other moral reflections. What matters here, instead, is that pragmatism “comes closer than other elements of Western thought to the strongest elements within the Chinese intellectual tradition”96. Chinese pragmatism is one of a peculiar kind, which dominated the Chinese intellectual realm for a long time. The expression “Confucian pragmatism” has been justified by the significant conceptual overlap between American pragmatism and Confucianism97. The tendency of Chinese interpreters who created the expression is to link Confucian philosophy with practical values and consider the content of the philosophy elaborated by Dewey as something already known to Chinese philosophical experience. However, the difference between the two strands of thoughts must yet not be overlooked. From the point of view of the intellectual history, the western strand of philosophical pragmatism was brought to China at the beginning of the XX century. It was adopted as the official philosophy of the Nationalist party. Dewey visited China in 1919. In the 1920s and 1930s pragmatism and Dewey’s theory were very influential98. Nevertheless, some Chinese philosophers as Hu Shi, a follower of Dewey, focused and committed to “experimentalistism” more than to “pragmatism”. The anti-nationalist reaction primed by the Communist party after its takeover of power swept away the commitment to pragmatism, which was the target of harsh critiques. The critique did not address substantive issues of content. Instead, it was an ideological contraposition, pivoting on the association of legal pragmatism and the Guomindang or National party and Western philosophers such as John Dewey or Roscoe Pound. Moreover, in the 50s,

94 See Huang (1995).

95 Peerenboom (1990) understands Confucian jurisprudence in a non-foundationalist sense, pragmatic and contextual in character. For a discussion on this feature of Confucianism see chapter II below.96 Angle (2002: 18).

97 Wen Haiming (2009: 293). Wan indicates that the conceptual operation that is attempted by the usage of the expression “Confucian pragmatism” is to reinterpret the Confucian philosophy in light of the pragmatism of Dewey. The influence of this philosopher is longstanding since he lectured in China in 1919. See for example Clopton, & Chen (1973) Sim (2009: 3-8).98 See Angle (2002: 296), and Ames(2003: 403-417).

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there has been a generally proclaimed ideological rejection of theories elaborated in the West, which is paradoxical considering that Marxist doctrine itself comes from the West.

In present China, pragmatism dominates the legal discourse both of the conservatives and of the reformers99. It also dominates the attitude of the large majority of the population toward politics. Surveys provide evidences supporting the conclusion that the attitude of students towards politics changed from idealistic to pragmatic, mainly after the Tian An Men massacre100.

Moreover, pragmatism still dominates in political action. The triumph of pragmatism is represented by the choices made in late 70s by Deng Xiaoping, who countered the “Two Whatevers” policy line (see chapter IV below) with espousing the Maoist slogan to “Seek Truth from Facts” ( 实事求是 ). The “white cat, black cat” theory (“No matter if it’s a white cat or a black cat, as long as it can catch mice, it’s a good cat") epitomizes the sort of experimentalistism and pragmatism that has gripped post-Mao China.

Lastly, it seems useful to stress the role that pragmatism played more specifically in the development of legal theory. Let us start with the acknowledgment of a deep dichotomy characterizing Chinese legal realm, and namely a dichotomy between the commitment to dogmatism in theoretical issues and the pragmatism which connotes practical issues and choices. This circumstance can be explained by the justification underlying the commitment to dogmatism in ideology, which is, itself, pragmatic. First of all, ideology possesses a pragmatic character in the sense that the criterion of choice is opportunity-driven instead of fairness-driven. Secondly, the very reason for maintaining a commitment to socialist ideology is a pragmatic reason. Socialist ideology provides the theoretical foundation of the principle of democratic centralism101 which is the base and justification of the existence of the single party rule. It is a pragmatic reason that obliges to keep the ideology of the party in place. Pragmatism is accused to be a position that ignores the fact of limitation of freedom of expression and other freedoms and rights perpetuated by the authoritarian regime. Power relationships, in fact, have an impact on human rights dialogue determining its restriction and setting strict limits. But it may not be necessarily so.

The Chinese pragmatic approach towards law certainly consists of an instrumental way to look at law (regarding law as an outcome of actuality, subordinating law to policy, and connecting rights to duties, giving prominence to duties). Those theoretical elements which are compatible with Marxist doctrine are accepted as dogmas, but their justification is based upon mere pragmatic reasons. The point is that both for Marxist and pragmatists, law is a tool in the hands of the CCP and is used to

99 Yu, Xingzhong (1989: 30).

100 Chan (1996).

101 Democratic centralism is a constitutional or fundamental principle, according to which democratic government is exercised by the people through the single party rule, which adopts democratic method within its own internal organization.

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support policy. And policy determines its contents. Moreover, pragmatism is used to invoke neo-traditional solutions to new problems. For example, “in 1986, the Minister of Civil Affairs, Cui Naifu, pointed out that ‘because the concept of the family remains strong among the Chinese people, there is no need to shift insurance function from the family to society. Responsibility to supporting old people should be shouldered by the family’”102. The effect of pragmatism in the legal realm have been the separation of legal theory from practice, an emphasis on instrumental aspects of law and the subordination of law to policy; it is also due to pragmatic considerations the generalized application of ad hoc rules103, thus determining an inversion of the relation between rule and exception as it is generally understood by contemporary legal theory104. Some hold the view that pragmatism impeded the formation of a coherent and workable theory of Chinese law. Chinese legal pragmatism would therefore constitute a hindrance for a Chinese theory of law.

102 Kent (1993: 130) this statement was reinforced by the new obligation outlined in the Constitution that parents have the duty to rear and educate their minor children, and children who have come of age have the duty to support and assist their parents.103 Yu, Xingzhong (1989: 31).

104 The widespread application of rules that can be defined ad hoc, thus lacking the characteristics of both generality and abstractness, determine the inversion of the relation between rules and exception. See Castellucci (2007: 75).

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CHAPTER II

CHINESE IDEAS OF AUTHORITY, LAW AND GOVERNMENT ACCORDING TO CLASSICAL DOCTRINES

1. Traditional Chinese legal thought.

Among the civilizations of the ancient world, the Chinese was far more isolated than the others. It communicated with other communities, exchanging cultural and technical ideas and inventions, but nevertheless the essential style of Chinese culture maintained a remarkable and perennial autonomy. This is also true for its pre-modern legal tradition105. The present chapter’s quest will be driven by the underlying purpose to understand the nature and role of law in Chinese pre-modern society and the extent to which it has shaped Chinese legal evolution. The analysis below is preordained to a deep and satisfactory understanding of the conception of law and its function in contemporary China in its own terms.

It may be useful at this preliminary stage to define what it is intended by the use of the words “tradition” and “legal”. By the term “legal” is made reference to the legal experience, the complex whole of rules guiding human behaviour – including both the formal law written in the codes and the informal customary law – the elaboration of theories about what the law is or should be, referred to as legal philosophy or jurisprudence, and the legal science, which includes the study of the law by professionals, the elaboration of methods of interpretation and application of the law, as well as principles and rules of constitutional, criminal and civil law and procedure. As it might have been noted, the definition of the term legal, at this stage, has been traced using categories elaborated in the Western legal tradition. At the end of the exposition, after a close examination of Chinese own conceptualization of law, it will be possible to draw a particular definition appropriate for Chinese legal experience, which may be different from the one described above. The use of Western concepts is in some sense unavoidable106 and with methodological caution it is possible to minimize the unconscious overlap of notions and concepts which are extraneous to the examined context, and to avoid the use of dubious premises based on external judgments, which are only apt to drive one to trivial conclusions, at best, and misleading or wrong answers, at worst. The analysis is based on the fundamental idea that, despite their diversity in time and space, legal systems share common concepts and methods, and can be beneficially compared. This comparison may shade new

105 Ruskola (2002: 179-180).

106 The unavoidability of the use of Western notions is as well an effect of globalization. The reason is that the process of globalization has pushed towards the standardization of the usage of legal categories. For example the language used by international law is derived from Western law. Despite the apparent uniformity in the usage of Western legal language it is useful to stress the distinction between language and its usage. Some concepts or institutions that arose in Western countries might be used in a non-western fashion (meaning that the content is different has been manipulated, adapted, reshaped; or that the western legal terms and notion have a different technical meaning or application).

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light on heavily debated concepts, situated in a zone in which law and morals partially overlap, such as human rights, and on the overall discourse of legal theory.

The term tradition is generally defined as a ‘customary sets of belief, or ways of behaving of uncertain origin, which are accepted by those belonging to the tradition as persuasive or even authoritative and which are transmitted by unreflective example and imitation’107. The definition of ‘legal tradition’ by Harold J. Berman is illuminating. ‘Tradition’ is ‘the sense of an ongoing historical continuity between past and future, and in law, the organic development of legal institution over generations and centuries, with each generation consciously building on the work of its predecessors108.’

The expression “traditional Chinese thought” is used in the literature on the topic in two different senses. In a narrower sense it is used to indicate the different doctrines belonging to the Confucian current of thought, as it is generally held that this doctrine has mostly influenced the development of Chinese legal system and legal concepts, but this meaning is affected by the defect of reductionism109; in a broader sense it is used to indicate the development of Chinese legal system and culture for nearly two millennia since the fall of the Qing dynasty in the early XX century (from the Han dynasty, which is further divided in former Han 202 B.C. to A.D. 9, and later Han from 25 to 220, to Qing dynasty – from 1644 to 1912)110. This period is the most fascinating portion of Chinese legal thinking, as it is genuinely Chinese in its origin and conception. The pre-modern era is the period of time where it is possible to find original Chinese legal elaboration and jurisprudence.

Once defined the main terms of the discourse, it may be useful to state a general premise. In fact, it is not correct to speak of the Chinese pre-modern legal tradition as a whole. This unprecedented 2400 year long civilization111, despite its apparent continuity, hides under the surface a dynamic confrontation of currents and counter-currents of thought, different and opposing schools following one after another, which remarkably contributed in shaping, each in its peculiar way, the legal development of the Chinese Empire. It is generally assumed that the main contributions to the

107 Prof. R. S. Downie “tradition" The Oxford Companion to Philosophy. Oxford University Press 2005. Oxford Reference Online. Oxford University Press. School of Oriental and African Studies. 11 July 2009 http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t116.e2538.108 Berman (2006: 2-3).

109 In fact, Confucianism represents only one, albeit certainly important, current of thought influencing the legal and the broader intellectual development throughout Chinese history. 110 Kim (1981: xii-xiii).

111 The Chinese legal tradition is therefore older and more durable than ancient Roman law, which lasted from 754 B.C to 565 A.D., almost thirteen centuries. However, despite longer duration without interruption, the influence of concepts and institutions of Chinese law has been limited to the bordering areas and countries, while the contribution of Roman law to the evolution of legal concepts reached broader scope and significantly deeper importance for legal theory and practice in different world regions, as well as in international law. The theoretical reasons and historical circumstances that fostered this development and the extent to which global legal discourse and singular non-Western tradition have been influenced by Western legal concept (whose origin can be traced back to Roman law) are very complex issues that will be only superficially addressed later in the exposition of this study, because their analysis would lead too far from the core contents of the analysis.

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development of pre-modern Chinese legal thinking are due to two schools of thought: Confucianism and Legalism. Nevertheless, the legal tradition annexed concepts and ideas whose paternity cannot be attributed to either of these schools. Among them, it is certainly worth mentioning the mixture of quasi-religious beliefs and customary social practices that is referred to as ‘Ancestors worship’, the Yin-Yang school, as well as Taoism (Dao jia) and Mohism.112

The analysis of legal development, concepts and institutions of pre-modern China is undertaken here with the aim of finding, elaborating and explicitly stating the underlying premises whose awareness can provide us the context in which is possible to interpret correctly legal concepts of contemporary China. The awareness of such ‘inarticulate major premises’113 is helpful in limiting the unconscious and uncritical transfer of the assumptions which are usually made about the fundamental premises and underlying foundation of our own legal system and law, even if it does not guarantee its complete avoidance.

Moreover, the proper and detailed knowledge of the pre-imperial and imperial intellectual legal history of China is a necessary key to understanding later developments. In fact, the contemporary relevance of Chinese legal tradition can be appreciated in different ways at three different levels: first, the institutional level, including the praxis of government; secondly, at a scholarly level, in the jurisprudential debate among scholars, and, lastly, at the laymen level, the commoners understanding of political and legal matters. Elements which characterize pre-modern or traditional Chinese legal thought can be fond in different fashions in all the above-mentioned levels in the contemporary legal experience. For this reason the knowledge of classical legal doctrines is relevant to understand contemporary Chinese legal practice and the human rights discourse as well. The political, legal and social systems are still dominated by values of Confucian ascendance114, while the conception of law and the methods of governance elaborated by the Legalist school are still part of the legal system as they contributed not only the formation of the structure of the state and of the legal system, but also inspired the formalistic interpretation of law in the post-Mao period115.

The expression wai ru nei fa 外儒内法 (outwardly Confucian, internally Legalist)

epitomizes the influences of both the classic legal schools on contemporary practice of law: 'on the surface Confucianism, Legalism in fact'. The meaning of this expression, created by Chinese legal scholars, is that the ideas of Confucianism, as for

112 Religious and sacerdotal practices and rituals are at the origins of Roman law. Recent studies are dedicated to the comparison of the two archaic traditions of law and their sacral and religious origins. The contribution of the first two schools will be partially acknowledged in the present chapter. The Mohist and Daoist theories of norm will be discussed in the next chapter.113 This famous sentence of Justice Holmes is quoted in Berman (1970: 313).

114 Blazey & Kapterian (2008).

115 See generally Potter (2003).

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instance the focus on moral education, universal love and compassion, and moral rectitude of the rulers, which benevolently care about the subjects, appear to be pivotal notions to determine the content of the law and the way the legal system operates. But instead, the real core of Chinese legal practice is constituted by principles and ideas derived from Legalism, the intellectual school which represented the main rival of Confucianism, and advocated, among other things, the use of law (instead of the means of moral persuasion) as a method of government and control of the population, harsh repression of crimes and supremacy of the will of the ruler. The same structure of the contemporary Chinese state would be inspired to Legalist doctrine. More specifically, the expression wai ru nei fa indicates a legal system in which legal rules provide harsh repression of deviant behaviours in order to enforce a moral order defined in a Confucian fashion. The contemporary legal scholars use the expression to describe a system in which the law is used as a tool to achieve certain goals and to protect the interests specified by the rulers.

The ideas of Legalist and Confucians (and above all the latter) elaborated almost 2500 years ago and developed throughout the course of Chinese history, have penetrated into the bones of Chinese people. This is not to say that they are unchangeable, but rather that they still influence the social habits, the behaviour of commoners. Moreover, the influence of concepts derived from Chinese classic legal scholars can be detected in the practice of the application of law, in the criteria and standards used for adjudication by the courts. The quality of law drafting is often poor in respect to clarity and precision, even if the technique has been improved in very recent times; the usage of vague notions and the lack of precision still affect the situation of legal dispositions. In the activity of interpretation by judges legal “cryptotipes” emerge. Cryptotipes are paths of thoughts, paradigms of reasoning and criteria of measurement and judgement, which are originated in the culture in the broadest sense and always present in the mind of the interpreters116. A cryptotype might be compared to what in a hermeneutic perspective is called ‘pre-comprehension’. In some case-judgments in contemporary Chinese law practice it is possible to identify cryptotipes of clear Confucian ascendance: the cryptotypes may well emerge in interpreting “vague notions” contained in the legal texts117.

The contemporary relevance of the notions derived from classical legal schools justifies a closer analysis of the contents and circumstances in which these schools were originated.

The analysis will highlight some major differences between Chinese legal theorizing and practice; the fundamental assumptions about the relationships between legal, political and moral realms; the understanding of the nature of social relationships; and the corresponding theories, doctrines and practices which are

116 See Gambaro & Sacco (2008).

117 Timoeo (2008). For example, if in a given case the application of a poorly drafted law may bring to an outcome which sharply contrasts to the generally shared feeling of justice, the judge may sometimes determine the rule to be applied using notions derivate from the Confucian heritage. See exemplified cases in Liebman (2008).

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generally considered the basis of the European and American doctrines of human rights. The historical development of the concept of human rights is generally assumed to be dependent on several assumptions which will be taken for granted and not discussed here: (1) the individual nature of human rights; (2) a tight connection between the moral and legal culture of rights; (3) the autonomy of law from politics; (4) the link between democratic system of government and rights. The close analysis of the Chinese legal and intellectual history will highlight a sometimes remarkably different set of beliefs about the nature of legal authority and its limitations; the relationships between law and morality; the marginal role attributed to the jurisprudence; the structure, organization, functioning of society. The distinctive evolution of the Chinese legal practice grounds the hypothesis of a different historical and conceptual path of evolution of human rights which will be further assessed in the light of the more recent developments of the last three decades in chapters IV and V.

In the following pages, the characteristics of the Chinese ancient worldview in the context of which some of the fundamental rules governing society were elaborated will be briefly described.

In ancient China the society and the Emperor were considered as part of a symbolic order. A strong and deeply rooted system of belief supported this order. The officials administering the state, the state structure itself and the society at large were imbued with the same thick ideology, thus allowing the system to be stable and to regenerate itself reproducing the same order in a circular recreation throughout the centuries. This explains the image of closure and the apparent changeless character of Chinese state that the first visitors of China brought back to their home countries. In this perfect symmetry and self-regenerating order, the effective elements of change were in fact preferentially introduced from the outside. A legend about the origins of law wants it to be invented outside China and imported from a less civilized population, the ‘Miao’ people, who was incapable to govern itself by the means of education and the practice of rites and had to rely on the harsh mean of law and punishment118. The introduction of law in China was therefore interpreted as a sign of decay of a moral system, upon which the self-regulation of society was based. However, the emphasis upon morality remained a characteristic of Chinese legal culture. A peculiar feature of the Ming and Qing imperial codes is the presence of some provisions having no practical use and shaded with strong symbolic meaning, but which expressed a clear message to the people, for instance, the solemn affirmation of family values.

118 In the Greek mythology the laws of divine origins are brought to men by the goddess Themis, who was the first wife of the god Zeus, together with justice and order. The symbolic meaning of this myth is that laws and the moral notion of justice are not separated since the beginning, while it seems that in China the law as a creation of men comes after the order, and in later times.

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The predominant character of Chinese tradition is conservative119. Cultural continuity is regarded as valuable and preferred to fluidity or change. Consequently, a successful argument used to affirm new ideas has been tracing their paternity back to legendary figures. Authoritative sources are preferred to others, suggesting that a paramount role is attributed to the authoritative argument and to the emphasis put upon figures, above all sages and rulers, who acquired in the course of time a sort of ‘mythical aura’, as for instance the Yellow Emperor120. Due to the 'respect of the past and the decisions of the ancestors, deeply ingrained in traditional thought'121 a general attitude of resistance to change was generated and maintained over centuries (and this was also due to the agricultural nature of Chinese economy and civilization).

Another characteristic of Chinese historical and philosophical thinking is its strongly secular tone. In general, the explanation of human and natural events relies on human terms and is not explained in terms of the supernatural122.

As already mentioned, the schools of thought that mostly influenced the reflection upon the law, its method and its relations with politics and morals, are the Confucian

school (儒家 Ru jia) and the Legalist school (法家 Fa jia).123 Affirming this is by no

means disregarding or overlooking the remarkable influences of other currents of thought on the reflection upon law. In fact, other elements whose paternity is not attributable to either of those schools, are discernable in Chinese jurisprudence, due to

the penetration of concepts of Daoism (道家 Dao jia), Mohism, (墨家 Mo jia) and of

the Ying-Yang school (营养家 Ying-Yang jia).124 Confucianism philosophy is mostly

119 It is correct to point out that the character of conservativeness is a conceptual characteristic of the notion tradition. The idea is contained in the Latin root of the term: tradere, which means to hand on and therefore, entails the activity of preserving what is being handed on. The attitude of preserving the content of a tradition may be called traditionalism. A tradition may be traditionalist with regard to its contents or with regard to the justification of its contents. In the latter case, ancient origins are used as the justification of new contents. Chinese tradition may be defined a ‘traditionalist tradition’ in contents and justifications, at least this is correct for the way Confucius justified the basic normative assumptions of his doctrine, by referring to a golden and glorious past.120 See Peerenboom (1993: 85). The Yellow emperor is the figure of the ideal ruler who unified the country, choose the wisest ministers to govern with him, he established the music and rites, and ren yi (benevolence and righteousness). He gained the support of the people and was able to make their heart one. Together with the Yellow Emperor other figures King Wen, King Wu, Fu-his, Shen-nung, were culture-heroes who portrayed the exemplary virtues and qualities of the ideal ruler. Moreover, they were considered as historical figure and therefore part of the line of dynasties. It was also attributed to them the invention of technical innovation in the fields of agriculture, science and writing. See generally Dawson (1978: 5-6). 121 MacCormack (1996: 12).

122 Bodde & Morris (1967: 51).

123 See generally MacCormack, (1996); Dawson (1978); Bodde & Morris (1967); Menski (2006); see also Chen Janfu (1999: 3-19).124 Needham reports the common suggestion that the dualism of Yin-Yang thought was imported by Iran. In the 4th century those terms originally indicating the ‘shady side’ and the ‘sunny side’ a hill or mountain, were used with a philosophical meaning to indicate the negative (dark, female, weak, night moon and so on) and positive (light, male, day sun and so on) elements. Needham rejects any direct influence by Zoroastrianism, while admitting the possibility to recognize a superficial similarity between the two philosophies. The goal of the Yin-Yang Jia was in fact not to make the light prevail over the dark, assumed the first as essentially evil, the latter as essentially good, but the perfect balancing of the two principles that constituted the ideal of perfect human life.

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concerned with ethical and political theory. It was originally formulated by Confucius and then continued by his disciples. After long debates (almost 200 years) the version of Confucianism elaborated by Mencius (d. 289 BC) became dominant. The challenges posed to Confucianism by the moral arguments elaborated by non-Confucian intellectuals were in part answered by Confucians and later by neo-Confucians and new-Confucians, and partially remain unanswered. In any case they contributed in creating a spurious mixture collecting features of different intellectual provenience. The impressive durability of the fortune of Confucian thought does not exclude the challenges and periods of partial decay with an ideological distrust driven and supported by the leadership in command125. Nevertheless, principles and values were kept alive by the ideological premises that imbued everyday social interaction of Chinese men and women. The first reason explaining the long-lasting influence of Confucianism is that since the Han dynasty to the fall of the Qing dynasty in 1911, Confucianism has been adopted by dynasties as the state orthodoxy, by which the conduct of officials and individual was driven. Secondly, and remarkably, from 606 A.D. onward, the state officials were recruited trough the examination system, based on the capillary knowledge of part of the corpus of Confucian literature, known as The Four Books, containing The Analects (considered the most authentic version of the teaching of Confucius), The Great Learning, The Doctrine of the Mean, and The Book of Mencius. Thus, ‘the Confucian system of beliefs and values was the lens through which the officials looked at the everyday practice of the administration of the state and the main source of tools for the art of good government, strengthened by a strong personal adhesion and even emotional commitment to what the administrators of the state considered unalterable principles’126. State officials were general administrators who had received their education primarily in the Confucian classics. Their knowledge of laws was not adequate to judge complicated or intricate controversies: ‘[t]hose in charge of the administration of justice, from the district magistrate upwards, with the exception of a few high officials staffing the central judicial agencies, were not specialists in law’127. As a result, in Ming and Qing times, magistrates and prefects tended to rely on the services of private persons who had made a special study of the law, employed on their personal staff and paid from their own resources128. They were called 'legal secretaries' and submitted their draft

Needham (1961: 153-154).125 ‘In the early twentieth century, the Chinese New Culture movement argued that Confucian ethics were feudalistic in content and served the interests of monarchical absolutism; Confucianism was seen as responsible for the social and cultural stagnation of the nation. The Chinese Communist party, following this line of thought, has generally rejected Confucianism as being inimical to Marxism-Leninism, yet on occasion it has acknowledged, for reasons of expediency, certain progressive features of Confucianism, such as the emphasis on popular education and the application of a common set of ethics to all individuals’. Hung-chao Tai "Confucianism" The Oxford Companion to the Politics of the World, 2e. Joel Krieger, ed. Oxford University Press Inc. 2001. Oxford Reference Online. Oxford University Press. School of Oriental and African Studies. 4 July 2009 <http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t121.e0151>. 126 Ch'u (1961: 287).

127 MacCormack (1996: 10).

128 Ivi: 11.

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judgments to higher legal authorities129. The absence of law experts is one of the main differences between Western and Chinese legal pre-modern legal practice. Western jurisprudence traces its origin back to ancient Rome. In the archaic epoch since its foundation, the Roman society was regulated by mores (customs) and rituals, but from the V century B.C., when the first written law appeared (called the XXII tables) onward, a corpus of laws (leges) and institutions was developed. The practice of officials called praetores who exerted the function of iuris dictio, on the basis of the provisions contained in the edictum praetoris issued every year, created a corpus of norms, beside which, other sources of law were the iura, derived by the practice of jurisprudence. In the classic roman epoch (27 B.C. – III century A.D.) the technique of the law reached its peak due to the activity, both practical and scientific, of a class of skilled experts in the art of law (iuris perites) who perfected a method called classical, which was stratified and consolidated over time. Moreover, in their activity large room was given to the reflection upon the reasons, the aim and the nature of the law. This huge patrimony of iura, the classical jurisprudence, and leges, after a period of darkening, was recovered, collected and systematized by the compilers of the Corpus Iuris Civilis or Corpus Iuris Iustinianeum (528-533), a code ordered by the Roman Emperor Iustinianus.

The doctrine and teaching of Confucius undoubtedly and heavily shaped the development of legal thought since the V century B.C. even though he was neither an official nor a legal scholar. Presumably, in the process of elaborating his thought, Confucius looked at the values and beliefs concealed in the social practices and customs. In fact, some core ideas of Confucianism were already present in very ancient codes, as witnessed by the code issued during the kingdom of K’han Kao (1122-1116 B.C.), one of the most ancient known juridical documents, largely deemed as authentic. For example, the concept of filial piety, which provided the grounds for some duties and obligations, ‘occupies a central place in the social and legal system of the state several centuries before its emergence as a main plank of Confucian thinking'130. Filial piety131, among other virtues, was in fact a highly valued quality and also a normative standard in the context of the social practice of ancestor worship. This practice, built upon a quasi-religious system of beliefs, was the humus that fertilized the common ground in which later philosophies stemmed and in which specific legal institution were originated and consolidated in due course.

The ancient cosmological conception of pre-modern Chinese society is very important to understand the premises of legal thought. It was distinctly holistic: the

living and the dead, the nature, humans and Tian 天 , usually translated as heaven,

were considered as united and interwoven in a single whole. The basic institution was the patriarchal family, pivoting on the principle of the continuity of the patroline. The

129 A comparable role was carried out by giureconsulti that helped the praetor in his activity in ancient Rome.

130 MacCormack (1996: 2).

131 Filial piety, xiao 孝, is one of the most important virtues in the Confucian moral system.

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kinship included the male descendants from a common ancestor132. A commonly held belief was that the community of humans was composed by the living and the dead members of the family, who, after death, acquired the power to secure protection and good fortune on behalf of their living descendants. The obligation upon the male members of the family was to constantly carry out the ceremonies necessary to propitiate their male ancestors, back to the third or fourth generation in the ancestral line133. The consequence of the miscarriage of this duty was feared as potentially catastrophic for the foundation of the society as a whole. The respect to the family elders, especially to the parents, was cardinal as well during the earthly life134. The attitudes inherent in the notion of filial piety had within their inner logic a strong normative dimension that indirectly influenced the positive law, and, in fact, shaped some of the characteristic of important legal institutes as divorce (providing grounds for its justification) and capital punishment (specifying degrees of it and other criminal offences) (See also chapter III below). The holistic conception of the world of living and death was at the origin of a special system of land-holding called “ancestral trust”, developed during the Song dynasty (960-1279). With the aim to guarantee the perpetual care for the ancestors, trusts were established and the property was endowed in the name of the common ancestor. In this way the male descendants could secure the support necessary for the ritual practices in honor of the ancestors. The descendant of the ancestors lived together in order to enjoy the benefit of the trust. The large diffusion of this practice is witnessed by the fact that almost ninety percent of the land of the Southern part of China at some point was held in ancestral trusts. The patri-lineage is called tsu or ‘five mourning group’. This shows the tight connection between, on the one side, the dead and living member of the family, and, on the other side between the institution of the family and the social structure. Each group held the property in common and, therefore, counted as a single economic unit defined by the scope of the mourning, which could also be divided in different autonomous units135. In due course, these communities developed into linear villages in which groups of agnates, claiming common descent, lived together in one community with their wives and daughters, invariably governed by a system of customary laws written down in the official genealogies, together with the names, titles, deeds and writings of their lineal ancestors. These clans, along the commercial and trade guilds in the cities and other local collectives, thus came to represent extremely important sources of informal rules and dispute settlement, distinct from, though complementary to, the system of imperial law administered by the imperial bureaucracy.

132 T’ung (1961: 14-16).

133 The ancestors were considered immortal because the family itself was immortal, being a self perpetuating whole composed by ancestors, living and future members. 134 A common feature of primitive societies is the tendency to link the survival and good health of the community to the adherence to the past. Departing from the past could mean dissolution of the community. 135 T’ung (1961: 18-19).

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The kinship system was deeply rooted in the society and proved to be resistant to change. This particularly occurred in the areas of family law and the structure of social classes when the process of modernization of Chinese law was later initiated at the beginning of the twentieth century. The kinship system was not only regulated by customary norms and practices. During the ages of the empire, some of the norms originated within the kinship system, called li, were gradually transposed into the positive dispositions of the imperial codes. This phenomenon is known as “confucianization of the law”136.

Confucianism was adopted by the Han dynasty as the official ideology of the empire, and provided the justification of authority with the doctrine of the Mandate of

Heaven137 (天命, tian ming). The religious character of this doctrine is shown both by

the provision of detailed ritual duties that only the Emperor was responsible to carry out and by the consequences upon noncompliance of those duties, potentially devastating for natural and human life138. The Emperor was endowed with his power by Heaven. This does not mean that the sovereign had to follow and perform actions according to the will of the mandate-giver. The theory of the Mandate of Heaven cannot be drawn close to the voluntarism theory in law, making specific reference to the justification and principle of power. This theory is premised upon the idea that Heaven is connected to human life. In the Mencian interpretation of the Mandate of Haven, the ultimate reason of authority is interwoven and substantially coincides with the responsibility to care for the welfare and benefit of the people upon which authority is exercised, with the capacity of perceiving the basic needs of the people,

136 See generally T’ung Tsu-Chu, Law and Society in Traditional China. See chapter III below for a more detailed discussion upon the influences of Confucianism upon official and unofficial law respectively. Some scholars, such as Liu, challenge the generally shared assumption that the law of imperial codes was influenced by the precepts of Confucianism.137 天命 or mandate of Heaven is a Confucian notion. Heaven , tian (天) has been defined in many ways: the nature of Heaven varies according to different doctrines. Nevertheless, the general character attributed to the notion of Heaven is not transcendence but immanence. The very character of the Confucian doctrine is secular. See generally Fingarette (1972).138 See generally Dawson (1978: 5-32).

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meet them and realize the conditions for a better future for the population139. The underlying conception of authority is compatible with a substantive theory of authority. It is questionable if it is also a variant of perfectionist theory of government or authority. Perfectionism is a Western theory according to which authority should aim at the perfection of the individuals and their virtue or personal excellence. It seems that the overall task of authority in Chinese political thinking is to maintain social order rather than allowing each individual to attain moral perfection. Taking this into due consideration it is possible to compare perfectionism with Chinese theory of authority. Indeed, moral perfection of the individuals is a result of the good governance by the ruler in the Chinese context as well. The main features of perfecitionist theories are: firstly, the idea that authority should guide those who are subject to it in a way that allows them to attain their highest good; secondly, the belief that the authority has to pursue a certain idea of the good of the subjects which is therefore objective and knowable; thirdly, the prescriptive role of the idea that the value of certain human activities or goods must be taken into account to provide the means to attain the good of the community (in the practice of government this refers first of all to the activities of drafting and applying the specific mean of the law)140. Certainly, the attribute of being a good ruler, especially for Confucians, depends upon the degree in which the ruler is capable to promote human welfare and excellence. Nevertheless, it seems that the designer of the political and social order does not have a “conception of the good” of the subjects, which is part of a sound perfectionist theory. In fact, the ruler is supposed to practice wu wei, a philosophical concept probably derived from Taoism, indicating non-activity (which is however not equal to passivity) or non-interference. The conception of the good represents a synthesis made by the emperor on the basis of the needs and ideas expressed by the population (according to the doctrine of the people as the bases). Yet, on the other hand, the two elements of a perfectionist theory are both recognizable. Every strand of Chinese philosophy retains that some forms of human activity or experience have special value. Moreover, this special value is taken into account for political decisions and in the drafting of the provisions of law to discipline human relations. Adding to the

139 The doctrine of “people as the basis” elaborated by Mencius has been reshaped and forms part of the policy of the current Chinese top leader Wu Jintao. The core of this doctrine seem to offer still the current justification for one-party rule through the principle of “democratic centralism”, one of the fundamental principles of the Chinese constitutional system. The reasoning justifying the CCP monopoly of power is connected to its qualification as a vanguard party, capable of offering a better future for the population through the formulation of “scientific judgments”. After a “democratic process” of consultation of the people, the party formulates scientific judgments on the way to realize a better future. The “good” for the community is the result of the interpretation of the basic needs of the people by the party, and not the result of the confrontation and debate of different ideas of good through a procedure. The correctness of the scientific judgment is measured by a consequentialist reasoning, on the basis of the actual adequacy in meeting the needs and realizing a better future. The core point is that the interpretation of the needs and the synthesis of the idea of common good seem to be a prerogative, a task exclusively attributed to the party, and constitutes the link between the party and the populace. Without this justification there would be no point in the one-party rule. For this reason the durability of the one party rule has been connected to the sustainability of the economic growth for contemporary PRC, being economic growth the common goal individuated as the ‘better future’ for Chinese people (see Chapter IV below). The idea of ‘people as the basis’ inspires the political slogans: ‘making people rich, giving benefits to people’ and ‘the Heaven’s conception (idea or thinking) derives from people’s thinking and the understanding or listening of Heaven is acquired by listening to the people: what people want Heaven will do’. According to Mencius’ theory, people are more important than the state and the state is more important than the emperor.140 Feinberg (2003).

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above that the conception of the good, even if not originated by the supreme authority herself, was clearly discernable from the larger social and cultural environment, then it seems reasonable to compare the doctrine of the Mandate of Heaven to the perfectionist theories of authority, acknowledging relevant similarities.

Political community is considered by Chinese as an extension of the family community141. Therefore, its good functioning is guaranteed by rules that mirror the rules governing the family, thus implying a strong paternalist interpretation of authority, in the lack of a theoretical limit upon the interference on the private life of the subjects and their freedom to choose autonomously what they consider good for themselves. The ruler is theoretically allowed not only to shape the normative frame to attain the welfare of its subjects, but also to enter the life and conscience of the subject and educate them as a father should do for the good of his children. This might be regarded an intolerable interference in the domain of freedom of conscience, of thought and expression. However, it can be better understood in the context of Chinese society, where the idea of freedom has different connotations142. It is nonetheless certain that this idea influenced recent legal development, and its theoretical underpinnings are one of the elements explaining the still strong reluctance, expressed by the contemporary public rhetoric supported by large portions of the population, to the acceptance and absorption of the idea of inviolable individual rights and liberties143.

The doctrine of the Mandate of Heaven provided the ideological grounds to legitimate the Empire (interestingly the Chinese term to indicate ‘revolution’ is ‘ge

ming’ 革命 , translated as ‘to remove the mandate’) and contributed in defining the

role of the supreme authority of the state and its powers. This doctrine is present in various versions. In the light of the above it seems reasonable to conclude that the theoretical base upon which the political structure of the Chinese state is grounded is not a pactum, or contract, in the way the main classic contractual144 European theorist (Hobbes, Locke and Montesquieu) constructed it, and, consequentially, very relevant and debated political and philosophical notions such as “authorization” (in the

141 This idea is similar to the Aristotelian ideal which considers the political community as the association of villages, and the villages as the association of families. However, in Aristotle’s idea, the political society is different from the family in its nature and in its purpose. In the Confucian thinking family ad state are analogical models. Nevertheless, the conflicts between the interests of the state and the interests of the family are the typical conflicts in the Confucian tradition and in general the family interest is considered normatively superior and therefore has to prevail in case of conflict between the two.142 Freedom is not a given attribution of man in a moral sense but rather an achievement reached through self development and education. Part of the process for achievement of freedom is the capacity to fulfill one's own role in the family and in the society in a creative way. The idea of freedom presupposes the connection of the person with other members of society and therefore in evaluating the consequences and implications of a free action one has to consider not only the consequences for oneself but also those for the other members of society. 143 It is a common view among scholars that the doctrine of the benevolent government from above was not sufficient to guarantee the rights of the subjects below, and the population was instructed more to preserve social harmony than to assert their own rights.144 Even though contractualism is not the only European political doctrine, its basic assumptions and premises regarding the legitimation and foundation of public power can be profitably compared to the ones developed by Chinese theories to highlight the differences.

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meaning given to the expression by T. Hobbes) “representation”, “delegation of power”, “limits upon the exercise of conferred power”, do not possess the same relevancy and significance in the context of the Chinese theory of public authority145.

The theory of the Mandate of Heaven certainly provided a mean to restrain power and a mechanism to remove tyrants, even if it lacks a system of designation of the most suitable person to rule. The doctrine in discourse is explanatory for the number and kind of constraints imposed upon the ruler and therefore it has been interpreted as an embryonic conception of the Rule of Law146. The reflection on the relation between the ruler and the law has been carried out by the scholar Chen Guangzhong, as well as the rules of interaction between the ruler and his officials. Through his explication emerges that Emperors were absolute monarchs, supreme authorities, not constrained by law147. They had the power to issue law, but no duty to respect it. The advice of wise officials persuaded the Emperor that only establishing him as a law abiding model the law could be fully implemented throughout society. One of the official’s advice to the Emperor during the Han dynasty was that “Law is held in common by the son of heaven with heaven; it is not his alone”148. This statement underlies the belief that the will of the sovereign was subject to constraints of moral nature, connected to the responsibility of the ruler for the welfare of his subjects. The only reason allowing for the removal of the mandate and the substitution of the Emperor was his conduct of misgovernment. This notion has a strong substantive connotation: the evidence of misgovernment was either the serious reduction of the well being of the subject or, more probably, the success of an attempt to overthrow the established power of a dynasty. The ideological justification of the succession in government of a different group of people was precisely that they were worthy to succeed. The worth was in turn measured by virtue of their success. The legitimacy of the government was based on reasoning, which simplified may have sounded like the following:

Heaven chooses the worthy ruler and gives him the mandate to govern the country.

If a ruler governs, it is because it has been endorsed by the Mandate by Heaven.

145 On Hobbes conception of representation and authority see Viola (1979).

146 See for example Turner (1992). The fact that the doctrine of the Mandate of Heaven poses constraints to the action of the emperor has been used as an argument to support the idea that in the Confucian elaboration it can be found at least an embryonic conception of the rule of law. However, i t is not proper to interpret the theory of 天命tian ming as a conception of the rule of law because the doctrine of rule of law concerns since its beginnings the positive law. The rule of law is a meta-rule prescribing how to produce the positive law and apply it. The objective of the rule of law is to reach a kind of non procedural formalism, and it is compatible with authoritarian regime s. Here, instead, the restriction of power is based upon ideas having moral rather than legal nature. This is only one of the reasons why the comparisons between the Rule of Law and the doctrine of the Mandate of Heaven can be criticized as improper. However, the Chinese theory of the Mandate of Heaven, prescribing limitations to the arbitrary power of the emperor who significantly deviates from the Way and as a result looses the Mandate, can be compared to a substantial version of the Rule of Law, in which the connection between law and morals is tight and the moral dimension is predominant. 147 There is a similarity between this concept and the idea of “superiorem non recognoscens” and “legibus solutus” referred to the sovereign.148 Ocko (2000: 65-87).

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Only the ruler is able to issue the right rules in harmony with Heaven.

The ruler who does not follow the Way of Heaven cannot issue the right rules and this causes its fall.

If a ruler falls, it means that Heaven has withdrawn its Mandate.

The dogmatic assumption that only the ruler is capable to issue the right rules gives him a kind of infallibility prerogative, and this, coupled with the paternalistic premises of Chinese theory of government, creates a theoretical obstacle to the development of ideas such as representation and democracy. The power is unidirectional: it comes from above and never from the populace149.

The justification of power is distinctively pragmatic; it is based upon a consequentialist argument that has the effect to legitimate the government by its force, by its capacity to obtain and maintain power (and in the Mencian doctrine by the capacity of the government to meet the basic needs of the people). This argument has been used until present to legitimate the leadership of the Communist party of China, adding more sophisticated arguments in response to their critics150.

The only effective counter-power to the emperor was that of the bureaucracy, which used the theoretical leverage of the classical ideas that the best way for the sovereign to govern is to choose the best men to be his ministers, and the ruler must abstain from governmental action and practice non-action151. Mencius compared the minister to a jade-carver, who should find the way to model this precious material without instructions from above, but rather observing and following the veins constituting a path discernable in the structure of the object itself (that is, discern the right decision by looking at the circumstances and facts of the case at hand) 152. The whole enterprise of good governance was founded upon skills and qualities of the magistrate as a man, therefore the method of governance based upon these ideals has been called ‘the rule of man’. However, it seems correct to argue that the ‘rule of man’ is still in some ways subject to a law, although this law is reached, achieved, determined through a correct understanding of the Way.

149 With reference to the distinction between all-encompassing conceptions of power and conceptions of power as having a limited scope, the Chinese idea of authority could be defined as a variant of the first. The doctrine of 天人合一 (Heaven and man are one thing, they are united they are interwoven) is characterized by a strong immanent character (See Woo 1980:120). Chinese immanent conception of power, coupled with its all-encompassing character, apparently does not provide grounds for claiming rights (For a discussion upon the relevance of the activity of claiming rights see Feinberg 1970 and Ihara 1994). In fact, there is no ground (not necessarily metaphysical in nature) external to power, upon which a claim to something can be firmly based, for example by appealing to a separate order of things (imaginative, or ideal, perhaps) which can be defined in different ways (as for instance the will of God, principles of universal reason). Perhaps this dimension is not easily founded in Chinese ancient philosophical thinking. Nothing was external to the human realm, not even the Way of Heaven. Everything was political, fell in the political realm, ultimately being a confrontation between forces. The strongest prevailed and used all the possible means to keep the position: harsh repression, censorship and so on. 150 See note 35 above.

151 The Neo-Confucian philosopher Zhu-Xi (1130-1200) developed arguments that could be used to restrain imperial power. He accorded legitimacy to social distinctions and primacy to rule of man over rule of law.152 As Dawson (1978:7) points out, these classical references strengthened the resistance of the bureaucracy to autocracy in later times.

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According to Confucian school of thought, the law is not to be used for the political purposes of the ruler, and it is not derived from his own will. The ruler must abide by the law. The argument is simple: if the ruler does not abide by the law, due to the fact that the law derives from the correct understanding of the Way, it means that he is not performing the right path153. This reasoning also entails is the epistemic dimension of the correct behavior: if one behaves according to the li (rites), then one can gain the correct understanding of the Dao (the Way) and consequently acquire the ability or capacity of the wise man to judge correctly every situation. Not to abide by the (right) laws – the laws deriving from the understanding of the Way – causes a diminution of the comprehension of the right order of the world and in turn it results in an obfuscation and confusion in the process of understanding it154.

The ruler must serve his people, and his power is subject to constraints. The most important mechanism of constraint is described by Peerenboom as 'the natural philosophy of Huang-Lao'155, according to which laws are constant; they do not change often156. Therefore, 'One who holds fast to the way, having generated the laws does not dare to violate them or to abrogate them once they have been established'157. Notwithstanding the apparent immutable character of the laws, a quality the ruler must possess is flexibility in order to be able to change the law according to the changing conditions. 'Remaining flexible, one will not digress from {the principle} of right and wrong'158. The ruler has the role to translate the Way into legislation. The objective conditions and ‘the Way’ tell the ruler what the laws should be and he must understand and provide accordingly.

Once the hidden premises and the undeclared implications of the theory of the Mandate of Heaven have been explicated, it is possible to state that it was a kind of ideological or religious belief that was used to restrain the power of the sovereign. It should therefore not be defined as an idea similar to the modern ideal of the Rule of Law159.

153 Further investigation would be needed to assess if a conception of law as originated from the will of sovereign is altogether lacking in the Chinese legal reflection. For an account of the voluntaristic theory of law see Cacciari (2006).154 “The one who holds to fast to the Way, having generated the standards, does not dare to violate them nor to abrogate them once they have been established. Only after {the ruler} is able to bring his own self into line with the guidelines does he apprehend and understand the world without confusion.” Translation of the Sik Manuscript, 43:1, by Peerenboom (1993: 78). Legalist school countered this Confucian assumption by affirming instead that the ruler, the emperor, was not bound to respect the law.155 Peerenboom (1993: 101).

156 This aspect makes the law more similar to custom and can be found in pre-modern conceptions of law. See Viola & Mangini (2009). 157 Translation of the Sik Manuscript, 43:1, by Peerenboom (1993: 78).

158 Translation of the Sik Manuscript, 53: 53b, by Peerenboom (1993: 101).

159 Even though some consider the Rule of Law itself as derived from the idea of limitations imposed by divine law upon the powers of the King.

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2. Legalism and its intellectual contribution to Chinese legal tradition.

The character fa, generally translated as ‘positive law’ figures in the name of one

of the classic legal schools, the Fa jia 法家 or Legalist school. The term 法 fa can also

be used with different nuances of meaning in respect to those given by the Legalist school, however, in the Legalist sense, fa indicates a whole of precepts prescribing punishments as consequences of certain behaviours. The basic texts of Legalism are Han Fei Tzu and Kuan Tzu. This school assigned a specific role to the law as an instrument of government and control of society. According to the conventional reading of Legalist texts, law is intended to be amoral and an instrument in the hands of a ruler, the emperor, who uses it to consolidate and maintain power, unify, control and order the empire, which at Legalist times was composed by different states and powerful kinships.

The prevailing literature assumes the Legalist school being generated as a reaction to Confucian ideas160. Legalist purported the principles of equality in punishment; harsh repression of crimes, publicity of laws. The principle of equality in punishment countered the Confucian principle of differentiation of legal treatment according to rank and social position. The principle of harsh repression of crimes was opposed to the ideas of leniency and compassion in administering justice and the principle of publicity of the law was opposed to the practice of keeping the law secret. Legalists thought was revolutionary in affirming that law should have been used to reach goals that in the historical tradition of China law was not meant to achieve. The revolutionary ideas of Legalism could be understood considering the general rule of the application of punishment: circumstances such as age, rank, of the persons involved in the actual case had to be taken into account to graduate the determination of punishment (but sometimes also to determine the applicable rule). Moreover, the general method to govern different zu (the basic clan, or social units which represented also something comparable to personal jurisdictions) before unification (221 B.C.) was that the rules of a certain zu could not be applied to members of a different zu. Therefore, membership was the criterion for determining jurisdiction. Instead, due to the Legalist influence, during the Qin dynasty “the various system of punishment were finally unified into one”161.

Waley calls the legalist “realist” because they held that law should replace morality and the government had to be based upon “the actual facts of the world as it now exists”162. Legalists based their ideas of government upon the use of sanctions both positive and negative: “Everyone who does what the State wants is to be

160 Recent studies have questioned the familiar assumption of the conflict existing between Confucianism and Legalism on the basis of new archaeological findings. 161 Liu, Yongping (1998).

162 Waley (1939: 199).

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rewarded; everyone who does what the State dislikes is to be punished”163. Han Fei Zi theorized that beside positive law, which had to be written in public and be known by every person in the empire, the emperor had to use a managing technique, which instead had to be kept secret, unknown. The art of government was therefore a mixture of public rules and secret management technique. Managing rules had the purpose of making the ministers efficient and obedient to the emperor, but it had to be kept unknown even to the ministers. A general principle was the use of heavy punishment as deterrent, however, the ultimate goal of the law was considered to be absence of violations and therefore the non application of punishment. Beside the publicity of law, another innovative idea was the principle of equality in punishment for the same wrongdoing, countering the differentiation of punishment regardless to the social status of the author and the victim purported by Confucians164. Legalist elaborated a theory of law that could be compared to rule by law, which was officially adopted by the Qin Empire (under which different states were unified for the first time – 221 B.C) and put into practice. Contemporary interpreters165 challenge the above described prevailing interpretation of the Legalist texts as advocating the method of government called rule by law166. They argue that the arguments in the Han Fei Zi are more sophisticated, and there is an explicit articulation of what Fuller called “the inner morality of law”167. Certainly, the Legalist understood law as a set of rules applied uniformly and universally168. The universal element of law, consisting in its application the whole of the territories and to all the subjects (through all social strata of the empire), is closer to the modern idea of law. However, the comparison operated between Legalism and Fuller’s theory about the inner morality of law seems not to be sound169.

163 Ivi: 209. The commonplace of the proverbial aversion of Chinese common people to present a suit at court is attributed to the conception of law as an instrument of punishment for wrongful acts. Being against the law, violating the law, was equal to be a criminal. 164 Interestingly the principle of equality was not derived from the ethical reflection but rather from the Legalist ideas, while the natural law tradition affirmed the principle of equality for moral reasons.165 Winston (2005: 313).

166 For the theoretical distinction between Rule of Law and rule by law see Palombella (2009). For an account of theories of rule of law and rule by law in the Asian context see generally Peerenboom (2004).167 The diebate about the correct interpretation of Han Fei Zi cannot be synthesized here, as not directly pertinent to the topic. SeeWinston (2005: 313).168 The Legalist written law is called fajing, 法经 , a collection of the laws of the different states compiled by Likui, 李悝. Fajing is considered the prototype of Chinese imperial codes adopted by the Qin (221-206 B.C.) and the Han (206 B.C.-220 A.D.) dynasties. It is a collection of crimes and legal punishments. The sections of the fajing are dedicated to riots, theft, law of arresting, searching the criminal. The chapter called ‘mixture of crimes’ collects different crimes such as: going to other cities without permission; playing without working; borrowing without returning; being too luxurious, break the li which sets different limits according to the different status (king, minister, commoner). For example, the king could have 64 dancers while the minister 32. 169 Interestingly, the first account and theories about law, as the broad literature about the early times in China seems to testify, were created by philosophers. As Liu Yongping (1998) notes, the study of the origins of law in China has been oriented towards these two schools of thought and the contention between them, probably due to the lack of records and findings during the Spring and Autumn period (from the second half of the 8th century BC to the first half of the 5th century BC). Liu’s conclusion is that although the theory of the Legalist school was recognized by the rulers of Qin as the dominant ideology of their state the code was a mixture of various factors including the ideas of norms contrary to those advocated by Shang Yan and Han Feizi.

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An important difference has to be pointed out: objectivity and subjectivity are not distinguished in Chinese traditional thought, however today the intellectuals try to establish that distinction in scholarly works. In general, both for Confucian and Legalists, the rule of the authority could perhaps be qualified more appropriately as having subjective rather than objective nature, because there are not external standards upon which to measure the action of the authority. Standards of judgement were considered relative and not applicable in every situation; in fact, situations differ and constantly change. Logic instead, is abstract, separates facts from reasons and matter from form. The principle of authority and the lack of falsifiability are a constant feature of authority in Chinese history and they are certainly linked from a theoretical point of view, being part of a coherent system. The general rule is that the standards set by the authority are to be followed cannot be falsified; however, morality is not objective.

3. The terms of a comparison between Confucianism and natural law theories.

Legalism has been compared to legal positivism. But it has also been compared to Fuller’s theory of law. Confucianism, on the other side, has been compared to the natural law tradition, mainly to the non-voluntaristic strands of natural law. The possibility to include Confucianism in the group of natural law theories is problematic and that is why literature is abundant on the topic170. In this debate three main groups of questions have to be distinguished: the theoretical relation between laws of nature and natural laws in Confucian thought; the compatibility of Confucian ethical theory and jurisprudence with the core assumption of the natural law theory; and what is the strand of natural law theory that could eventually be more profitably compared to the Confucian theory. The first and third question will be dealt with later. Let us now address the second issue.

In order to profitably compare natural law and Confucianism, it could be useful to stress the different theoretical contexts in which natural law theories and Confucian theory were originated. To properly understand the scope and nature of the terms of the discussion it may be important to note that Confucianism is first of all a moral or ethical theory (the two terms are used here as synonymous) and not a reflection upon the nature of the law. Moreover, the distinction between law and morals is looser in respect to the one we can find in Western scholarly works: the meta-ethical question of the distinction between law and morals has been extensively and analytically studied mainly by Western philosophers of law, while the reflection of Confucians and other classical schools at least theoretically distinguished the realm of law and that of morals. Thirdly, the formal law and informal law in the cultural environment of Confucius are seen not as opposed but as situated in a continuum. Fourthly, the law is in a subsidiary position in respect to morality: it is the last resort to be used when moral methods failed and it is not preferable to morality.

170 See, among others: Liu, Xiusheng (2003); Peerenboom (1990; 1993); Bodde (1957); Kim (1981); Needham (1951a; 1951b; 1956).

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In order to answer the question regarding the comparability of Confucian theory of law and morals with natural law theories it is useful to distinguish the issues of the connection between law and morality, that of the nature of the laws (which is more purely a matter of theory of law), from that of the basic epistemological assumption presupposed to natural law theories on one side and Confucian understanding of law on the other side. Certainly, the three issues are deeply interconnected, and the way the discourse related to the third, that concerning the basic epistemological assumptions concerning the law, is framed, in turn, influences the first and the second as well.

The first common assumption shared by all natural law theories is that there are at least some laws or principles whose validity rests upon the logical, conceptual relation in which they stand to moral standards; some rules have the nature of law for their moral content. This relation is defined as non-conventional but conceptual171. The implication is that a disposition of law whose content is contrary to that of a moral precept can be predicated as invalid or not having legal nature172. A disposition that does not conform to moral assumptions is considered as lacking legal validity. This generally shared conclusion is valid for different natural law theories that nevertheless must be distinguished with regard to the definition of the limit passed which a law can be said to lack moral content or to have an immoral content; different authors disagree upon the consequences and implications of the fact that a legal disposition may contrast with moral principles and rules. In the European tradition of natural law there are two main versions, views, which differ with regard to the qualification of the theoretical connections they assume existing between law and moral principles and rules. The first group of theories holds the strong thesis of the conceptual connection between law and morality, while the other group of theories asserts the weak thesis, maintaining that between morality and law there is a distinction rather than a connection. Supporters173 of the strong version argue that the law which does not meet the requirements of morals does not even possess the nature of law, while who holds the weak version consider the law which does not conform to morals as a legally valid law, but yet not binding its subjects. Both the first and the second groups of theories above described presuppose a clear division between law and morality even considering them connected174. Natural law, except in its very early developments, has not been considered as a whole of eternal precepts that the legislator had to replicate in disciplining human affairs175. According to natural law thinkers, the legislator does

171 See Viola (1990. For a synoptic schematization of the main theoretical characteristics of natural law theories and positivist theories of law with regard to their attitude towards morality see Barberis (2008).172 See Lombardi Vallauri (1987).

173 Foe example St. Agustine.

174 For example, Thomas Aquinas distinguished in law the aspect of vis directiva, which has moral nature, and vis coactiva, which has legal nature.175 Thomas Aquinas distinguishes these operations by the legislator in two different groups: logical concretization (ad modum conclusionis) and voluntary concretization (ad modum determinationis). An instance of the second is represented by organizational rules. In both cases the legislator exerts a degree of creative power and discretion in making rules.

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not only enforce pre-existing moral laws but also formulates them. The structure of the legal ad moral precepts is different as well. How to solve the conflict between the two spheres when it arises is the main problem.

The second common feature of natural law theories is the claim that moral propositions are objective, that is, bearers of truth-value, and can therefore be objectively true or false. Right and wrong are objective because they are derivable from human nature (for Aquinas). Moreover, the definition of right and wrong is derived from the nature of the world and the nature of human beings using human faculties (reason, senses) an therefore is naturally knowable.

The two theses can be separated but as a matter of fact most of the theorists hold the two together176.

The epistemological assumption underlying theories of natural law is that laws are discoverable with human natural faculties (sensation, intuition, reason, and intellect)177. The nature of knowledge is ‘either of the sort of entity naturally suited to be immediately present to consciousness, or of entities whose existence and properties are entailed by entities of the first sort’178.

3.1. The theoretical relation between law of nature and natural law in Confucianism.

It has been argued179 that the absence of an eternal entity or personality, whose nature is transcendent180, is a theoretical limit on the possibility of the derivative progression from laws of nature (in the scientific sense) to natural law (in the juridical sense). Some scholars181 argue that while in Western thought the laws of natural law (from a legal point of view) and the laws of nature (from a scientific point of view) can be traced back to a common root, the Chinese law tradition did not take the laws of nature as its source182. According to Needham, a good parallel of the Western idea

176 See Peerenboom (1990: 12-38; 1993), to confront the structure of this comparison.

177 Critics of this position are those who sustain the Fallacy of the Naturally Giver: naturalistic fallacy.

178 Feinberg (2003).

179 Needham (1951a: 3).

180 The definition Peerenboom (1990: 34) gives of transcendent is ‘A is transcendent with respect to B if the meaning or import of B cannot be fully analyzed and explained without recourse to A but the inverse is not true’ . Another definition of transcendence, ascribable to scholasticism, refers to an order of essence: transcendent is what justify an order of essence without being justified by it.181 Needham (1951a: 3); Peerenboom (1993: 77).

182 Contra Bodde (1957: 709; 722).

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of ‘natural law’ can be found instead in the body of traditional mores known as li183.

Opposite of this view is that of Derk Bodde who argues that there is a parallelism between the ‘Western notion of the ‘laws of Nature’ and the Chinese thinking184. The Chinese way of representing the universe was not dissimilar to those underlying the Western concept of ‘laws of Nature’. As it emerges from his analysis of the texts, presumably belonging to the period of the early Han Dynasty (second century B.C.)185, the Chinese cosmological conception contained a high degree of anthropomorphic thinking as it happened in ancient Western thought186 and in its conception of the ‘Laws of Nature’. At least in this moment of Chinese philosophical speculation, according to Derk Bodde, it is possible to find evidences of ‘laws of nature’. The natural elements “regularly every year, in cyclical rotations, measured and regulated the Yin and Yang and the relationships between the things on hearth, restoring their proper relation”187. The power of the cosmos to inform and establish order is displayed in this way. The supreme measuring are Heaven and Earth; their essence is physical and not metaphysical, and their force is normative in the sense that it assigns a place to things and determines the distance and position between them. The premise is that everything has its appropriate pattern or li, which is structured by its relationship to other things. This influence is exerted upon natural phenomena as well as human life. Even if these processes are not defined in Chinese philosophical texts as laws or rules, the character of regular reiteration and adhesion to an order that is deemed as the correct order (implicit in the idea of ‘measure and alignment’) would imply the idea of laws to which the nature and human beings are subject 188.

183 There is an important distinction to be drawn between li (rites) and the theory of natural li. Confucius proposed the theory of natural li after the deep observation of the different rites practiced by different families or zu which were the basic unit of society. By examining the rites of different zu he found among them a common spirit. But the Confucian school was sudden opposed during the Qin Empire, and its exponent were prosecuted and repressed (burned the books and buried the Confucian scholars alive). At the end of the hostile time when Confucian thinkers could freely study the theories of Confucius, the intertwining of pure elements and ideas coming from other schools of thought represented the establishment of new branches of Confucianism, while the theory of li was abandoned in its original meaning. Liu, Yongping (1998: 322). Bodde and Morris (1967: 21-22) regard the li as having universal validity due to their origin: it was believed that they were created by the ancient sages in conformity with human nature and with the cosmic order. Needham (1951a: 6) argues that Confucian li, “that body of customs which the sage-kings and the people had always accepted”, was certainly a natural law due to its universality. Discussing about li, Needham also notes that “the customs, usages and ceremonials which it summed up were not simply those which had empirically been found to agree with the instinctive feelings of rightness experienced by the Chinese people everywhere under Heaven; they were those which, it was believed, accorded with the will of Heaven, indeed with the structure of the universe. Hence the basic disquiet aroused in the Chinese mind by crimes or any disputes was because they were felt to be disturbances in the Order of Nature.” (Ivi: 15). Peerenboom (1990: 20) contends the universal nature of the li, arguing that: “[t]he Confucian system requires that "persons of superior character" balance the competing interests of the given particulars. In (his sense, it can be characterized as a "rule of man" (ren zhi) rather than a "rule of law" (fa zhi )”.184 Bodde (1957: 709; 722).

185 The texts to which Bodde makes reference belong to the Yin-Yang school of thought in a period in which there have been ‘an archaistic throwback to much earlier anthropomorphic conceptions’. The writers belonging to the Yin-Yang Five Element school, as Bodde remarks, suffered from an ambivalence in their thinking which caused them to viewer between a teleological and a mechanistic explanation of the interrelationship between natural and human world. See Bodde (1957: 722-723).186 See generally Kelsen (1953).

187 Bodde (1957: 719).

188 Bodde (1957: 720-721). “What are basic to the [Yin and Yang ethers of Heaven and Earth, to the harmonious balance between cold and heat, to the properties of water and soil, to the existence of human beings,

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Nevertheless, the path of the Chinese speculation differs from that of the Western thinkers for it emphasized an organismic universe that was more properly defined as self-containing and self-operating, than as a reality ruled by universal norms189. Derk Bodde concludes that the Chinese denial of a celestial lawgiver is an affirmation of Nature’s spontaneity and freedom, but not of the absence of laws of nature190.

The last point worth mentioning is how the cosmological beliefs influenced, or impeded the conceptualization of men as an individual, but rather permitted the elaboration of the person as constituted by a texture of connections and relationships both material and non material. The absence of a personal god, which played a role in the elaboration of the notion of human being as a person may have played a role, together with the absence of the idea of a cosmogonic beginning. The logical relationship between the concept of gender and that of species are also important: each of the individual natural elements, including humans, was considered as sui generis191. The collective (species or generis) was not theoretically distinguished from the person (individual) and this has great relevance and implications for legal development. To highlight the importance of these ideas for legal development, a parallel with Roman legal tradition could be useful. Romans since the beginning developed the legal categories based on the notion of individual, and this was also the case for the notion of right attributed to the individual. Later development connected rights to the idea of inviolability of person.

In any case, natural law understood as a set of laws to be found in the natural order of the cosmos is the very early stage of natural law thinking and was soon abandoned for more sophisticated account of natural law. Therefore the analysis will now focus upon the more interesting issue of the relationships between the legal rules and moral principles.

birds, animals, plants and trees; and which things, despite their extreme abundance, all possess as standard (chün), yet which never undergo change [themselves] – such are called ‘rules’ (tse). Bodde (Ibidem).189 Ivi: 722.

190 The idea or concept of ‘person’ in Western thought was influenced in its development by the Christian belief in a personal god. The absence of a personal entity may have prevented the emergence of a similar idea of person. However, the influence of the protestant missionaries influenced the elaboration of the notion of individual in the Chinese context.191 Ames (1991: 157).

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3.2. The minimum connection between law and morality192.

In traditional China, fa 法 (positive laws) were not the only norms valid in the

society. Dao 道 (the Way), de 德 (the moral precepts), li 礼 (rites) and other norms

derived from custom were also valid and observed by the community of Chinese people. Different schools of thought emphasized some of those norms while disregarding the others (see Chapter III below for a discussion about the hierarchy of norms). For example, Confucians privileged norms of moral nature to the dispositions of positive law. Due to the influences of Confucian ideas, the view of Legalists who considered positive law as the only valid set of norms to regulate society has been defined by some contemporary Chinese scholars as a reductionist theory of law.

The term fa 法 can signify both the general idea of 'positive' or 'written' law (law

as an abstraction) and 'legal rule' (also used as component in the term falu 法律 ,

referring to the law in the books or positive law). In its etymology is found the idea of model, pattern, or standard; it ‘implies a notion of equalization on the one hand and a notion of straightening193 on the other hand’194 This reveals the idea of form, rule, standard, and of model, hence it is a method or a procedure to be followed. ‘[F]a is a model or standard imposed by superior authority to which the people must conform’195. Kim summarizes the interpretations of the term fa by dividing its use both by the Legalists and the Confucians into two categories: in the broader sense, the term fa means ‘law as a standard of conduct [that] includes ethical precepts and rules as expressed in the Confucian concept of li and [y]i which governed human activities in society’196. Fa in its technical sense coincides with the narrower meaning of law: the rules codified in the books, promulgated and ‘kept’ by governmental officials. ‘Law as a standard in the latter sense is a conception of law in a physical-

192 The relationship between law and morality entails many questions. One is if there is a necessary minimum connection between law and morality. According to the separability thesis, which is the core of legal positivism, there is no necessary connection between law and morality, while according to the connection thesis there is at least one kind of connection between law and morality which is a necessary connection. Arguments for the connection thesis and against the separability thesis are: the argument from correctness and the argument from extreme injustice (the first is a conceptual while the second a normative argument). According to Alexy, the problem of the nature of law is internally connected through the concept of correctness with the problem of what kind of entities the law consists of. If law was composed by categories like power, emotion, it would not constitute a legal system but a system of brute force, manipulation and emotional response. The connection between law and the claim of correctness is a conceptual connection. “the necessity of coercion is rooted in the values of legal certainty and efficiency. The necessity stemming from this is at least primarily an instrument or extrinsic, practical necessity. The existential impact of the claim to correctness creates an intrinsic, practical necessity” Alexy, Robert, (2003: 13). When there is no law in hard cases the decision is based upon “kind of reasons outside the class of reasons of positive law” among them are consideration of justice. This links law to morality through the claim of correctness which is present in all the legal systems. 193 Aristotelian notion of corrective justice.

194 Bodde & Morris (1967: 11).

195 Ibidem.

196 Kim (1981: 3).

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mathematical sense. It reduces complex human relations to a formula of mechanistic T-squares, compasses, weights and measures’197. The interpretation of the concept of fa by Kim may not be fully convincing and it may need more arguments and evidences to be soundly grounded. There may be reasons to criticize the definition of the broad meaning of fa as it is defined by Kim. Nevertheless, it suggests something interesting. In fact, it is correct to say that both Confucian and Legalist defined positive law in the same way: fa is the law codified by the Emperor and applied with a certain method which, including the criteria of the application of the law, is itself issued from the above, even if it may embody components of the Confucian ideology and a system of values derived from the values and beliefs of the society at large (see discussion on this point in Chapter III below). The difference is not in the definition of what the law is, but in the scope and role that the two schools assign to the law in governing society. Is, therefore, the normative role assigned to law that makes the difference, and this role is grounded in different conceptions of power and different anthropological models advocated by the two schools. Positive law is a mean to exert control and to govern the society. For Confucians the control exerted by the law is external, and it is useful when the society is not capable to abide by the self-rule system of custom and rites; moreover, the social practice is driven by norms ultimately derived from moral values, and the only way for it to function is the spontaneous adhesion to the values embedded in the practice198. If the values embedded in the practice have to be some and not others is a further question whose answer may tell something about the nature of the moral system of Chinese pre-modern society. This problem will be dealt with later in chapter III.

The analysis of Kim, even though somewhat unsatisfactory, gives also the hint that the law was associated with a measurement of relations between two or more persons, in a way that fixes the exact extent and form of the relation so that what deviates or fails to accomplish this measure calls for a correction by the means of punishment.

The term li 礼 ‘represents what men in general instinctively feel to be right’199. Li

is the term originally used to indicate the whole set of rules for the correct performance of ritual religious practices, and precisely that of the clan Zhou 周. The character later acquired the significance of ‘rule’ (or ‘body of rules’) or ‘conduct’,

constituted by the universal ethical principle (the character is different from li 理 ,

which means principles). It is this interpretation of li which has caused some modern scholars to suggest that a comparison may be made between Confucian li and the Western concept of natural law in opposition to a comparison between Legalist fa and

197 Ivi: 4.

198 ‘Virtue alone is not sufficient to exercise government: laws alone cannot carry themselves into practice.’ Mencius IVA1. ‘If the people are governed by laws and punishment is used to maintain order, they will try to avoid the punishment but have no sense of shame. If they are governed by virtue and rules of propriety [ritual] are used to maintain order, they will have a sense of shame and will become good as well”, Confucius, Analects, II: 3.199 Bodde & Morris (1967: 13).

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Western positive law200. Qualifying the li as norms of behaviour considered moral in nature and universal, firmly embedded in ethics and invoked by emperors to justify their mandates, it is possible to interpret them as a parallel of the norms of natural law201. According to Bodde and Morris, for the Confucians, the li derive their universal validity from the fact that they were created by the intelligent sages of antiquity in conformity with human nature and with the cosmic order, while legalist law had no moral validity because it was merely the creation of rulers wishing to keep political power. The attribution of the paternity of these principles to Confucius has been challenged by the relatively recent founding of the Qin strips202. These archaeological findings demonstrated that Confucius himself in elaborating his doctrine draw from the existing tradition in that he articulated already existing principles (as for instance the principle of differentiation of punishments for identical criminal actions committed by the members of the same community according to the age or status of the author).

Peeremboom defines the li as ‘customary norms which have been developed within a particular historical tradition and which constitute not unchanging, determinant rules of behaviour but culturally valued, though negotiable, guidelines for achieving harmony in a particular context’. Contrary to Bodde and Morris, in this interpretation the li are defined historically contingent norms to be changed when circumstances merit it, and not immutable laws of the cosmic order or universal principles. The point of coincidence of the two interpretations is precisely that none denies the ethical nature of the norms called li.

The interesting result of the theoretical debate between the two major schools of legal thought was a synthesis expressed in the Han and Tang code: the “confucianization” of the law. In the Ming code we can find rules and principles derived from li and legal rules in the strict sense, celled lu. In fact, once Confucianism has been adopted as the state orthodoxy by the Han dynasty, the precepts of the social practice of rituals condensed into the norms of the li were in times introduced into the imperial codes, thus realizing a fusion or a synthesis between, on the one side, the structure of empire and of legal system as shaped by the legalists, and, on the other side, the content of the common morality that had converged in the li203. This process resulted in a partial overlapping of moral and legal orders in which a legal infraction was considered also a moral fault. Law and morality were described as the two wings

200 Bodde & Morris (1967: 20).

201 Needham (1956: 214); Peerenboom (1990: 17).

202 In the light of these recent findings Liu concludes that “the principle of inequality between the senior and junior members within the family – a principle recognized by all imperial codes – was derived from an ancient and consistent practice, that is, that the state and society always recognized the superior position of the zu and family heads over members of their zu and families. Both the Confucian and Legalist ideas, at most, reinforced this practice”. Liu, Yongping (1998: 329). 203 Cavalieri (1997: 29-40).

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of a bird, moving always in the same direction at the same time204. This explains why litigation itself has been for long (and still is) considered somewhat unethical.

Conclusively, it might be said that the speculation of Confucius and his disciples is not a reflection centred on the nature, origin and justification of the law and of the obligation to obey law. Rather it is centred on the nature of morals. The distinction between laws and moral in the interpretation of Confucian thought can be neglected as secondary, considering the law and morals as two alternative systems to rule society. As opposed to absolutely mechanistic Legalism based on the supremacy of positive law, Confucianism views a positive legal system as the second best option205. Lastly, it seems that the Confucian idea of law was not that of a way to enforce moral ideas, but this idea is not excluded as potential outcome of both the Legalist and Confucian idea of positive law. Perhaps Confucian substantial neglect for the external aspect or regulation of human relationships is a feature which distinguishes Confucianism and natural law tradition. Moreover, the above mentioned feature is somewhat at the origin of Legalist ideology in that it poses at the top of the normative hierarchy high moral standards of compassion, and does not regulate human affairs in details.

3.3. Is Confucianism compatible with natural law theory?

Even agreeing on the interpretation above described according to which Confucianism would reject or be not compatible with the minimum separation between law and morality in the Hartian sense206, Peeremboom sees the Confucian jurisprudence as much closer to a coherence account of law as constructive interpretation á la Dworkin, rather than to a foundational natural law system. The main argument to this thesis is the absence of an absolute (in the sense of necessary and universal, real objective and given apart from the will of men) basis on which to ground the validity of the law. Peerenboom holds that 'Confucianism, properly understood as an ethical system that relies on discretionary judgment of exemplary persons (jun zi) who create an emergent order from the particular context rather than by appeal to universal ethical principles, cannot be construed as natural law understood in the foundationalist sense’207. The interpretation of classis Confucian account of law as anti-foundationalist208 excludes the comparability with natural law theories.

The epistemic premise of the coherence theory is the idea that the truth or falsity of individual statements can never, or only rarely, be conclusively established. The

204 Kim (1981: 15).

205 Ivi: 19

206 Hart (1957: 593-629).

207 Peerenboom (1993: 76).

208 See generally Peerenboom (1990: 12-38; 1993). The author defines the Huang-Lao Silk Manuscripts as underlying the foundationalist thesis while the philosophy of Confucius is described as anti-foundationalist.

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correct description of the world can be equally claimed by different sets of cohering statements, not only in axiomatic systems. On the other hand, a foundationalist ethical position defines ethics as a system in which normative judgments are derived from, or reflect, absolute moral principles. A foundationalist position in natural law theory holds that the law is grounded on a transcendent source or realm of value from which the individual is separated; it can be divine law, human nature, pure reason or the laws of nature. Foundationalism in epistemology is the theory according to which knowledge of the world rests on fundamental indubitable beliefs. These beliefs are the source from which further propositions can be inferred to produce a superstructure of truths, whose knowledge is accessible through human intellect or senses. According to this theory, the notion of truth is distinguished from that of doxa or pistis, fallacious knowledge, and the real knowledge corresponds to reality (it is called the correspondence theory of truth).

Once given those brief definitions, it may be useful to assess the solidity of the interpretation above described that deems Confucian jurisprudence compatible with a coherence and pragmatically oriented account of the law. According to this opinion, rather than appealing to a predetermined order in the form of abstract, a-historical, universal, ethical principles, Confucianism would rather stress a dynamic, interactive, emergent sense of order understood as an achievement of harmony in a particular social-historical context.

A first objection to this position could be an interpretation of the source of normative precepts (dao) as transcendent in nature. The qualification of Confucianism as a foundationalist or anti-foundationalist theory depends from the interpretation of the source of the precepts and its relations with human beings. The ultimate source of normative standards is the Dao or Way. Dao has the characteristics of universality and inevitability. It is an ‘objective reality with ontological character’209. It is separated from the particulars which it informs, but Dao is also immanent in that it is

present in the heart and mind of the sage in virtue of the principle of tianrenyi 天人合一 (literally: heaven and men are the same thing. This expression synthesizes the

principle of the ‘harmonious oneness of Heaven and humanity’) the dao is the basis of the de, moral life or personal virtue of the person. The universality of the source certainly does imply the universality of the precept derived from it. But even contesting the definition of the dao as universal and transcendent, this does not exclude the possibility of the existence of universal norms. To say that the sage comes to the definition of the rules by discerning the Way in a reflexive equilibrium between his judgment and his beliefs, does not mean that there cannot be any universal principle of morality and law – even if this normative source is not a celestial lawgiver or the ‘god reason’. Through the use of a human faculty (reason, intuition, senses) the normative precept is obtained, and it could be defined as universal, if not because the content of the precept itself can be qualified as universal (it can be

209 Liu, Yuli (2004: 74). See also Chong & Liu (2006); Cua (1998).

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applied to a specific situation and also imagined for this specific situation ad hoc – as many rules were in the Qing and Ming code in particular) for the possibility of its application. Moreover, the process and the criteria involved and deemed valid in the process are universal themselves. Here the problem can instead be constituted by the different understanding of the notion of universality in Western discourse of law and in Chinese intellectual context respectively. However, the different idea of the nature of laws generally valid in the West and the characteristics of the Confucian norms with particular reference to the concepts of generality and particularity are not sufficiently stressed in Peerenboom’s account.

An implicit premise of Peerenboom’s argumentation is that, in his understanding of Confucian doctrine, the standards of moral assessment are not given by extra-moral and uncontested values, or by a-historical principles of practical reason, but are entirely immanent within the particular social tradition in which the agents are situated. What is right is determined by virtues whose form and content is specific to the Chinese tradition. ‘In striving for an equilibrium among the conflicting interests that will reflect the higher possible degree of social harmony attainable given the particular constraint, the Confucian sage seeks to render the law consistent with a specific society's values, practices, goals and needs'210. Moreover, Peerenboom holds that in Confucian thought the dao is to be achieved and depends upon the particular context and circumstances in which it is discovered: '[r]ather than appeal to a fixed order or universal first principle one is responsible to create one's own world according to one's own standards. There is no predetermined pattern no cosmic blueprint against which to check one's progress. The measures of success are themselves determined by the concerned parties. One evaluates the world in light of one's own personal and communal interests, goals, needs, and beliefs'211.

It is true that for Confucians the sage is a source of meaning and value for the society because he is capable of finding the right way and act according to it. It is also true that the right way is also the source of the right norm, irreducible to a group neither of general prescriptions nor of individual rules. Nevertheless, the standards of behaviour are not created in relation to beliefs or interests of the parties involved in a dispute or to the personal preferences of the wise judge. They do not entirely depend from the contingent situation or set of values held by the society. The strong pragmatic spirit of the Chinese culture should not be misinterpreted as a pragmatic account of morality and law understood in its contemporary meaning. Moreover, the Chinese society was not pluralistic from a moral point of view212.

To understand the nature of li, it is not enough to say that in the formation of the normative statements the assessment of particulars in a context-specific system of

210 Peerenboom (1993: 199).

211 Ivi: 105.

212 Every society is pluralistic, but here the absence of pluralism is understood not as absence of a plurality of views upon the world, or moral opinions, but instead as the high degree of uniformation in thinking and the limited tolerance of disagreement.

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values is highly relevant. The problem now is moved to the origin and nature of the values and beliefs of a particular community. It is certain that the Chinese pre-modern society was governed by a shared system of values. From a theoretical point of view, those principles and values are regarded supreme and cannot be overruled. Very clear examples are the theory of the three bonds213 and the normative principles contained in the five fundamental relationships214. The rules about duties and responsibility of the person are deducted from those ideas, which are not intended as context dependent normative standards agreed upon by society, and, therefore conventional in nature. They are instead derived from a specific idea of the characteristics and nature of human beings and of their relationship with Heaven or the Way. What has been argued so far is supported by the following statement attributed to Confucius: ‘The Way is the proper standard for past and present. He who departs from the Way and makes arbitrary choices on the basis of his own judgment does not understand where fortune and misfortune lie’215.

In any case, any sound theory of law may not claim that there are immutable and general natural laws valid for the regulation of the life of humans without providing, even if only in a methodological part, the possibility to adapt the rule to the new circumstances of a concrete case. Such a system would not last for long. According to classical ideas of natural law, problems of coordination for example could be resolved in many ways, all compatible to moral norms. In Confucianism as well the assumption that there are several equivalent ways to achieve good is implied in the idea that the sage chooses and makes the Way himself. The problem is therefore diverted on the existence and nature of the limits upon the activity of creation of norms by the sage person.

A last point may be worth mentioning. According to natural law theories, the limits upon the action of the sovereign are moral principles and norms which natural law theory considers principles and norms of reason216. These truths can be understood or attained using human reason. Moreover, 'the moral principles by virtue of which they have authority to affect their subjects' deliberations and which morally limit the exercise of their governmental power, must be publicly justifiable. Natural law theory explores, expounds, and explains the deep structure of morality, but morality is a matter of what reason requires, and reasons are inherently intelligible, shared, common'217.

In Confucian doctrine the limit upon the normative action of the ruler are to be framed with reference to the notion of welfare of the people, precisely because the

213 The three bonds or san gang are the ones between father and son, elder and younger brothers, husband and wife. The moral principles entailed in these relationships shaped and formed Confucian family ethics. 214 The five fundamental relationships between: ruler-ruled, father-son, husband-wife, elder-younger brother, friend-friend. 215 Xunzi, Ch. 22. See Yuli (2004: 78).

216 Finnis, John (2004: 2).

217 Ivi: 3.

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aim of the government is to achieve the highest level of welfare for the subjects and to make them achieve their good, according to their role in society.

It is now possible to draw the line and state the results of the comparison between natural law theories and Confucianism. One general reason can be adduced to state that the comparison between Confucianism and natural law is not proper, or, at least, problematic. First, the theory of natural law is a critical and conscious reflection upon the nature of law and morality and it was at the origin of modernity in the West. It seems therefore appropriate to distinguish natural law theories from a simple experience of natural law in which consciousness and meta-theorizing about law are not the core of the reflection, as the Confucian one appears to be. Regarding the specific question addressed so far it can be said the following.

Even if the idea of cosmic order is significantly different in the West and in China, it may be argued that the concept of law of nature was also present in Chinese elaboration. However, only at the very beginning natural law was considered as a whole of eternal precepts that the legislator had to replicate in disciplining human affairs, as a set of laws of nature. Therefore the presence of a similar concept in Chinese early tradition is a weak argument to sustain the comparability of the two terms in discussion.

The argument that classic Confucianism (excluding neo-Confucian and new-Confucianism) and some traditional natural law theories share, in the terms clarified before, the same statement of the necessary and conceptual connection of law and morality, appears to be theoretically acceptable, even though it seems not sufficient to state the full compatibility of Confucianism with a natural law theory.

The origin of the principles and rules in Confucianism appears to be purely human and not supernatural or universal, even if this does not imply that universal principles are not part of Confucian set of rules.

Lastly, the debate concerning the nature of Confucianism as either foundationalist or non-foudationalist theory of ethics and epistemology causes problems for the qualification of Confucianism as example of natural law theory. The comparison with the theory of Dworkin may be criticized because Confucian ethics is in between a foundationalist theory of law and virtue ethics. But as a virtue ethics it is centred upon cosmic harmony to which the individual must contribute by her own creative effort.

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CHAPTER III

CHINESE NORMATIVE (ETHIC/LEGAL) IDEAS ACCORDING TO CLASSICAL DOCTIRNES

Introduction.

Lubman argues that some of the main differences in the history of legal thinking between Chinese and Western legal reflections are linked to the concept of rights and to the use of formal legal institutions to vindicate rights218. It is beyond doubt that the Chinese classic ideas did not include the notion of human rights, and the contrary would be surprising. Indeed, this is a common feature of pre-modern societies. The relevancy of studying this antique system of morality lies in the explicating power that the moral notions it generated still retain for understanding contemporary Chinese legal and moral ideas and their application to the institutional sphere. The goals of this chapter are two. The first is to describe the relationships between different realms of normativity in order to understand the characteristics and relevance of the particular realm of law. The second goal of the present analysis is that of investigating a group of very distinctive and highly fundamental ideas, such as the virtue of filial piety, the concept of pao, the ideal of the fiduciary community, and the process of self-development, which still shape social interaction between Chinese persons219. These notions are very important both for the conception of the person and for the conceptual representation of the links between the state and the persons. The values entailed in these notions are still vital and vibrant in the Chinese social and familiar experience. Moreover, their meaning could possibly be interpreted as a contribution of the Chinese civilization to comparative ethics and human rights discourse. In fact, it may be the case that the notions of filial piety, fiduciary community and self-cultivation constitute, one by one or united in a whole conception of man and society, an alternative possessing in some respects a richer idea of man, its autonomy and liberty in respect to the ways it is understood and presupposed by the main Western theories of human rights. But, on the other side, the three notions taken together may have constitute a powerful hindrance to the development and acceptance of the idea of human rights as claims attributed to any person just in virtue of her humanity, inalienable, inviolable and not subject to prescription, pre-existing their recognition by the state in the law. The moral ideas that will be discussed below are derived from Confucian and neo-Confucian reflection but are taken into account mainly for the reason that they appear to be strongly rooted in the contemporary positive morality. The correct understanding of the three concepts and of their relevance in the contemporary positive morality of the Chinese people and intellectuals may shed light upon the possible interpretation of the concept of human rights from a genuine Chinese perspective. This understanding can contribute not only to a cross-cultural

218 Lubman (1999: 11).

219 For an account of the contemporary relevance of the value of filial piety see Nuyen (2004: 433-450).

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dialogue but also to the formulation of a more comprehensive global discourse of human rights. Moreover, the awareness of: the elements which differentiate the Chinese notion of person; the ideal of the relationship between the state and the people; and the very place of law and legal rules among the normative domains, is key to correctly frame the general Chinese understanding of the notion of human rights and explain (without necessarily justify) the attitude towards human rights in contemporary Chinese debate.

1. Chinese ancient ideas of jurisprudence220.

The interest in researching ideas about law and jurisprudence in Chinese classic legal tradition is relatively recent. Chinese scholars started to ask themselves the meaning of their own ancestor’s thought and philosophy and its relevance for the contemporary reflection upon law after the oblivion of the ideas of Chinese legal tradition in favour of Western theories in the first half of the XX century (for example the adoption of the Soviet theory of law after the foundation of the PRC) and after ten years of legal nihilism during the Cultural Revolution (1966-1976). The expressions

to indicate jurisprudence and theory of law are respectively fali 法理 and falixue 法理学 . Records of these terms can be found in ancient commentaries and writings by

intellectuals. The traditional or classic ideas about law and jurisprudence have not been expressed in a systematic way, but nevertheless they have been articulated in

writings, generally using one of the following three words: 1. 律学 (lv xue); 2。法学 (fa xue) ; 3. 法术 (fa shu). The scholars usually call his ideas as 法术之学 (fa shu zhi

xue), Chinese old jurisprudence. These ideas about law can be found for example the Han Fei Zi, a book attributed to the founder of the Legalist school, Han Fei Zi, whose reasoning is mostly at the meta-legal level, rather than at the level of substantive law. In particular, in Han Fei Zi the discussion is about the proper usage of the expression

法术(fa shu).

The words jurisprudence and legal theory in the old times were also referred to

with the expressions 法意 (fa yi) and 法理 (fa li). The ancient Chinese dictionaries

ascribe a plurality of meanings to the expression fa yi. One of them is 律例精义 (lv li

jing yi), founded in the book Wan Guo: Gong Fa (public law) 万国公法 (wan guo

220 The content of the present paragraph have been synthesized from the lectures of philosophy of law by Prof. Cheng Liao Yuan, Chongqing University, 2009/2010.

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gong fa); another use of the expression is 万法精理 (wan fa jing li) which is found in

the writings of a Chinese student studying in Japan and is dated 1899; the third one is

by Yan Fu, a prominent Chinese philosopher who in 1902 wrote a book entitled 万法精理 (wang fa jing li) ‘the reason and theories of all laws’. The Chinese expression

used by Yan Fu in his introduction to Montesquieu’s Esprit de lois is 法意 fa yi, has

been interpreted by Cheng Liao Yuan as a creative work of translation: Esprit de lois

is translated as 法意. There are other examples of the uses of the expression fa yi in

the Chinese classical philosophical works. In the Han Shu (Han dynasty, 206 BC) it is

expressed the following legal idea: 积小过，成大欺 (ji xiao guo cheng da qi) or 养肥猪政策 (yang fei zhu zheng ce). The two expressions have the same meaning: ‘if a

man committed a small crime the police does not correct him; when one commits a crime of a big entity the police will catch him and put him in prison’. The concept behind this expression is the tolerance towards crimes of small entity and harsh repression of crimes of big entity. The logic is that by tolerating the crimes of small entity the crime’s rate will probably increase. When this happens the attitude of the police has to change from a tolerating to intransigent. In fact, the practice was to corrupt the guards to escape prison. The logic was therefore to ‘let a small pig grow and, once it becomes a big pig, kill it’. So the meaning of the Chinese expression is that the police represses the big crime to get more money and does not care for the small ones. The reasoning behind the behaviour of the police is referred to as fa yi.

The second example of the use of the word fa yi is found in the wording of an

ancient law called zhang du lv 张杜律 (promulgated by the Emperor 杜玉 du yu).

A third usage of the expression fa yi is dated at the time of the Song dynasty 宋朝 (song chao). The thinker Zhu Xi 朱熹　elaborated some ideas concerning fa yi. In his

work he exemplifies a case of a boy and a girl who were linked by a relationship that was already three years long. The law of the time prescribed the young couples either to marry or to part after the third year since the beginning of the relationship. Zhu Xi explains that fa yi in this case is that the mandatory choice between marriage and separation of the couple is due to the reason that the country and the family need a son to support them. Fa yi is also what explains the rule of traditional custom which prescribes that if a girl touches a man she must marry this guy. Therefore fa yi is considered ‘a way to use the law, a method to explain the law’.

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Another example to show the early use of the word fa yi is the case of a person who killed a man who had killed some people and was escaping. The law of the time prescribed the penalty of death for murderous conduct. In this case the judge Ma Lian

马亮 stated in his judgment that the penalty of death had not to be inflicted to the

killer, adducing the reason that the person, even though guilty, supplied with his action the failure of the police to capture and kill the murder. Fa yi in this case was not to punish the murder even if the law prescribed to inflict the capital punishment to any person guilt of murder. The judge’s explanation of the case is that ‘the police failed to catch the killer and so the man is not wrong because he supplied the failing action of the police’. Therefore and conclusively, in the case in discourse fa yi was considered ‘what is just or reasonable or according to feelings and according to all the people’s hearts’.

In the Qing dynasty 清朝, the thinker Gong zi zhen 龚自珍 defined fa yi as related

to some people’s ideas or as the expression of common thoughts of the people,

common sense, the expression of 舆情 yu qing: the feelings and thoughts of the

common people.

It seems that the meaning of fa yi emerging from the excerpts of the classical thinkers is the spirit or reason, the meaning and basic idea of law (similar to ratio iuris), taking in due consideration the feelings221 a given situation would have presumably generated, or effectively generated, in the mind of the common people (compassion, understanding, despise, etc.).

There is another important word, 法理 fa li, whose current meaning is

jurisprudence.

Han Fei Zi, the founder of the fa jia, 法家, or Legalist school, says that everything

has its own principle or rule or nature, and men must follow the principles of things. Fa li was mentioned already during the times of the Han dynasty, but before the Han dynasty some books referred to the meanings of this word without using the same expression. For example in Chun Qiu (before the Han dynasty) the discussion of this notion is founded in some books in which are used different expressions. In that

period some thinkers disputed the relation between 法　and 理. One thinker says that

the emperor should know what the law is and how to use it. In the Han dynasty 汉朝,

221 Desires and dislikes are considered feelings corresponding to basic social relationships, and are considered common to human beings. See Santangelo (1992: 41). Santangelo points out that the Confucian starting point is that at the origin of interpersonal relationships there is an interchange of feelings which influences the relationship. In general a relationship between two persons is seen as not being on equal footing (except the relationship between friends and the ones that can be modelled on this kind of relationship).

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the emperor Han Xuan Di combined the basic tenants of ru jia 儒家 and fa jia 法家together creating a new powerful synthesis to rule the empire222. In the opinion of Han Xuan Di, fa li is a combination of ru jia, which had a huge number of followers at the time, and fa jia.

The intellectual Gao Rou Zhuan speaks about fa li and also does Kong Zi Hui. The latter’s understanding of the expression is ‘common sense principle’, for example the maintenance of a given word, of a promise. In the Nan Shi, a work authored by Xu Guang, is reported the following case. After the death of the father the son inherited 70% of the patrimony and the daughter 30% even if the law prescribed that the son had to inherit the whole patrimony. Even if the law does not provide anything in this regard, this kind of decision is ‘fa li’.

The Taiwanese Professor Han Bao interprets the characters which compound the expression as separable because the history book distinguished the two words giving them an autonomous meaning even if this interpretation is contested by Professor Cheng Liao Yuan. Fa and Li certainly possess autonomous meaning but the expression fa li cannot be reduced to either of them, instead, it possesses an autonomous meaning. The attempt of the contemporary Chinese scholars is to reconstruct the history of the word fa li, the meaning of this idea as well as the theories of fa li. This intellectual history is significantly different from the well known history of Chinese law, or fa in the opinion of Cheng Liao Yuan.

The other expression to refer to jurisprudence is falixue, 法理学 . The

investigations on old jurisprudence have been carried on by 舒国滢 (Shu Guoying)

and 郑永流 (Zheng Yongliu), two legal scholars from Beijing. The usage of this

expression is related to the meaning of the expression in Japan or Germany. Between

1897 to 1899 the word has been used by Kang You Wei 康有为 in a work, the

contents of which were derived from Japan or Germany. The conclusion is that the

subject of jurisprudence, called 法理学, as it is now studied and understood in China

is almost entirely derived from the Western discipline of jurisprudence. Jurisprudence

of Western derivation is called 西学东渐 (xi xue dong jian). The ways in which

jurisprudence was introduced to China have a long history which is considered very important by Chinese legal scholars nowadays223.

2. Theories of norms according to classical legal doctrines.

222 It is what has been previously called ‘the process of Confucianization of law’.

223 Further research on the topic is needed, but it is not possible to conduct it here.

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The two most important classical “theories of norms”, have been elaborated by

Legalists (Fajia 法家224), and Confucians (Rujia 儒家225). The core themes underlying

these theories were, for Fajia, that laws could provide clear guidance to people; for Rujia the argument was instead that law alone, unassisted by other norms, was inadequate to produce long lasting good results. The arguments made by the two classic schools have been ‘repeated endlessly in different guises by Chinese thinkers of later periods’226. Both schools affirmed the human origin of the law. Conversely,

the Daoists227 (Dao-jia 道家 ) advocated a life style more in harmony with nature,

considering human creations, including rules and institutions, the cause of human problems and suffering. Chang Wejen defines the argument put forward by Daoist as a third theme of the Chinese reflection about norms. The fourth one was elaboratedin the V century B. C. by Mozi (Motzu), who was the founder of the school called

Mohism (Mo-jia 墨家). Other schools developed in the early Chinese history include

the Agriculturalists (Nong-jia 農家 ), the Military Strategists (Bing-jia 兵家 ), the

Diplomatic Schemers (Zong-heng-jia 縱橫家 ), the Logicians (Ming-jia 名家 ), the

Yin-yang School (Yin-yang-jia 陰陽家 ), and so on, but these schools did not have

full-fledged theories of norms228.

As discussed in Chapter II, the law for Confucians plays a complementary role to morality. In fact, legal punishments, external and fixed, are not apt to changing people's character. Rites and moral rules, instead, through repetition and attunement to certain moral standards, are considered able to change people's character and permit each person to flourish and to achieve a harmonious community. Another defect Confucians saw in general laws, is their inadequacy in providing the context-specific resolutions required to ensure substantive justice and maintain harmony. The determination by the Confucian sage of what was best in a given situation was based on his own judgment rather than by appeal to fixed laws or standards of general

applicability229. The origin of norms for Confucius was 天 tian (Heaven) or 天道 tian

dao (the Way of Heaven), but it seems he did not give an answer nor a definition of

224 The founder of this school is Han Fei Zi, IV century B. C.

225 The founder of this school is Confucius (551-476 B.C.), among his disciples Mencius (372-289 B.C.) and Xunzi (IV century B.C.).226 Chang, Wejen (2009).

227 The Daoist philosophy is different from Daoist religion (dao-jiao 道教). The latter is a Chinese cult that claims Laozi, the prominent Daoist thinker, as its founder. 228 Chang, Wejen (2009)

229 Ivi.

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both these terms. It seems, as Chang writes, that he ‘placed the supernatural at arm’s length, turning the attention to human affairs, intending to find a proper way for humans to live in this world’. According to Confucius ‘[l]aw does not come from Heaven, nor does arise from Earth. It is nothing else but something which comes forth from among men, consonant with their ideas’230. The source of the rules was for Confucius the human being, rather than a supernatural being231. The starting point of the Confucian theory of norms was observing that humans have a common nature, a malleable nature, which could change according to experiences, similar needs, feelings and reaction to certain stimulus232. Any precept had to be formulated according to two standards: reason and compassion. The general moral norm elaborated by Confucius is known as the golden rule. This rule consists of two precepts for social conduct, one in negative form the other in positive form, whose exact formulation is: ‘you should not impose on others what you did not wish to happen to you; if you wish to establish yourself and reach your goal you should help others to establish themselves and reach their goals’. Based on these principles, Chen Wenjen distinguishes four groups of norms for social interaction.

The first is de 德 , moral principles: the paramount principle is ren, translated as

humaneness. Ren (仁 humaneness) was and remained a general moral principle, the

higher one, from which other moral rules could be derived233. Confucius emphasized it as the essential characteristic of a human being, although he did not define it in details, achievable through the practice of rites (li). From this principle Confucius

derived more specific moral rules, including xiao ( 孝 filial piety), ti ( 弟 brotherly

love), zhong (忠 loyalty), xin (信 faithfulness), qian-rang (謙讓 moderateness and

yielding), gong-jing (恭敬 humility and respect), hui (惠 kindness and generosity),

230 Hulsewé (1987: 11-32).

231 The idea was very revolutionary, and this is the reason why Fingarette regards Confucius as an innovator rather than a traditionalist. See H. Fingarette (1972). Hall and Ames as well considered Confucius a creator rather than a transmitter: Confucius “transformed the roles and obligations of an earlier aristocratic tradition by ethicizing them, insisting that they reflected not fixed hereditary privilege but expression of ethical excellence which all could cultivate. This is clear from his teachings regarding concepts as “the gentleman” (jun zi 君子), a term which in early Zhou contexts denoted a hereditary social status (literally, the “son of a lord”) but which for Kongzi described an ethical status, an achievement which was the fruit of deliberated and concerted efforts at cultivation”. See Hall and Ames (1987: 10).232 Desires and dislikes are considered feelings corresponding to basic social relationships, and are considered common to human beings. See Santangelo (1992: 41). Santangelo points out that the Confucian starting point is that at the origin of interpersonal relationships there is an interchange of feelings which influences the relationship. In general a relationship between two persons is seen as not being on equal footing (except the relationship between friends and the ones that can be modelled on this kind of relationship).233 The training in ren, that is, the capacity to know its precepts, was considered to be given to people by their willingness to learn and to practice the primary norm by restraining their own desires and observing the rites. The base of government was teaching by example. The disputes could not have been avoided but only dealt with methods of mediation and conciliation following reason, compassion, and norms higher than the law. Later on, ren, understood as benevolence, was adopted as the cornerstone of neo-Confucian philosophical thinking.

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shu ( 恕 understanding and forgiving), yi ( 義 rectitude and justice) and zhi ( 直 truthfulness and straightforwardness). The effects of the observance of these moral precepts were to be appreciated both in the personal life (moderation of people's temperament, make their behaviour proper and elegant) and in the social, collective life.

The second higher norm of social interaction are the li, 禮 the rites. The rules of

behaviour contained in the li were not to be followed in a formal way but had a substantial significance. The acceptance of the precepts of li was based on the degree of appropriateness for its time and circumstance and, more importantly, on the degree of agreement with reason and shared human feelings. Such measures, if observed, could help moderate people’s temperament, make their behavior proper and elegant, and create a harmonious society.

The third ser of norms for social interaction is zheng, 政 government decrees and

the fourth, xing, 刑 penal laws. Confucius did not discuss zheng and xing in detail. In

fact, in comparison to moral principles and the rites, were considered less important.

Chang defines the Confucian system of norms ‘a pyramid in reverse’ and indicates a principle to rank norms: a norm was ranked by how close it was to reason and human feelings and how great a good for humanity it helped achieve: the closer the distance, the greater the good, the higher a rank the norm would have. In practice, the higher a norm was ranked according to this principle, the more it would be accepted by the people and therefore the more authoritative and effective it would be. These two characteristics, greater acceptability and higher effectiveness, would, in turn, make the norm superior234.

3. Normative domains and their hierarchy.

The delicate task of defining the notion of ‘normativity’ and specifying its meaning will not be addressed here. Just for the purposes of the present discourse, normativity will be understood as the whole of domains: moral, legal, religious, customary and so on, from which the prescriptions guiding personal behavior derive. A discussion upon Chinese realms of normativity, a meta-normative issue, is useful for delimitating the ambitious of law and its relations with different realms of normativity, for example morality, etiquette, social mores, etc. What is argued here, the claim that here is made, is that the distinctive character of the official legal dimension in China (where the term ‘legal’ is used in the narrow sense, indicating the law promulgated by the Emperor in the codes and other forms of official law, applied and enforced by state officials) has been the dependence from or connection with

234 Chang Wejen (2009).

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other domains of normativity, and it was so both at the beginning and in later developments, and is still the situation in the contemporary legal practice. To anticipate briefly the conclusion: the preference for the moral domain has determined the lesser importance attributed to the law, while the overlap of moral and political spheres has determined the primacy of political domain above the legal domain. This structure of normative fields is replicated in contemporary China and is considered to be one of the main hindrances to the acceptance of the ideas of individual rights and fundamental freedoms recognized by law.

As discussed above, the idea emerging from the classic Confucian doctrine is that law plays a complementary role to morality. ‘In the ritual treaties of the early Han, the rites are presented as essential in the harmonization of the socio-political community and the prevention of disorder, while the laws play only a secondary role by intervening most of the time a posteriori to sanction an already committed crime. Rites and laws appear to be as complementary as the roots and the branches’235. The ultimate goal of the Confucians is the well being and the flourishing of the family. To this end, rites and moral rules appear to be preferable methods. In fact, they can change people’s character, while legal rules are inadequate to that purpose. ‘If you speak to a man in the strict words of the law, he will probably agree with you; but the important is that he should reform his conduct’236. Moreover, general laws were considered unable to provide the context-specific resolutions required to ensure substantive justice and maintain harmony in the family. Not the attribution of tort and reason was considered paramount, but the effective reconciliation of the people involved in the dispute. In this picture the role of the sage is the determination of the best composition of the dispute in a particular situation. The decision is based upon the appreciation of the whole of the circumstances rather than by appeal to fixed laws or standards of general applicability under which the case can be subsumed in deductive fashion237. In this picture, the correct performing of the ritual is a mean to reach the attunement of the entire community. The li or ritual is the guidance to attain the actual harmonization of the people in the community, a way to modify first-order desires through second-order desires, where the second-order desires were those in line with the general positive moral standards embedded in the ritual and in their interpretation by the community. Confucius considered law as a method only useful since the moral status of the people was too low to be regulated by teaching, virtuous example and the practice of the rites. When the moral level of the populace increases, people would have been sage and virtuous, and they would have acted correctly without the need for penalty. The goal was not to resort to law at all: ‘In hearing cases I am the same as anyone. What we must strive to do is to rid the courts of cases altogether’238. And also: ‘Lead the people by means of government policies and

235 Cheng Anne (2004: 35). See also generally Kim (1981).

236 Analects IX, 23.

237 Cehn Wejen (2009).

238 Analects XII, 13.

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regulate them through punishments, and they will be evasive and have no sense of shame. Lead them by means of virtue and regulate them through rituals and they will have a sense of shame and will strive for higher standards’239. Compared to the method of law, the application of the moral precepts could be flexible rather than strict, as a disciple of Confucius said: as long as one does not deviate from the major norms it is permissible for one to observe some major norms with a little leeway.

But what was the influence of Confucian precepts on law? Two rival theses have been advanced on the issue. The thesis of the direct influence of the Confucian precepts in shaping the content of law is mainly based upon the argument of the ‘confucianization of law’ (see chapter II above). On the opposite side, it has been argued that law was not directly informed by morality, and the influence of moral rules upon imperial law was only indirect.

A thesis connected to the ones stated above is that the imperial law did not regulate civil matters while was mainly concerned with administrative and criminal law. This perspective suggested that the moral provisions collected in the li and enforced by family-clans would have regulated the aspects of life different from those contained in the codes, that is, eminently, criminal matters. Countering the prevailing past literature, and supported by recent findings, the opposite thesis affirms that the scope of civil matters regulated by imperial law was broader than it was usually believed.

The existence of an alternative system of unofficial law, beside the official one, is a constant characteristic of the legal history of China. This was possible because the societal clans maintained a high degree of cohesion and internal organization and were able to use rules and principles having customary origin; the jurisdiction was determined on the basis of membership to a clan. The lack of sufficient written records and sources regarding the practice of law of the early imperial China caused the scholars to focus upon the philosophical doctrines, assuming that the ideas they purported reflected a loyal picture of the practice of law. Even if the analyses grounded upon philosophical works still keep their importance, the relatively recent discovery of the records of the practice of imperial law added new elements, in such way contributing to a more faithful reconstruction of the relationships between different normative domains in traditional China.

The first argument in support of the thesis that positive law was not informed by morality is that the dispositions of the imperial codes never mentioned benevolence as a principle. Yet, benevolence was a central feature of the ethical system of Confucius, and had a paramount importance in that system. Since there is evidence of the fact that not all the contents of Confucian morality, and not even the most important ones, were contained in the imperial codes, Liu draws the conclusion that Confucian rules and methods are to be theoretically ascribed to a different normative domain than

239 Analects II, 3.

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law240. Liu stresses that there is no mention in the codes of the methods of persuasion and moral education. Instead, the dispositions of the imperial codes are harshly repressive in character. Liu qualifies the relationship between Confucianism, law and customary law, (understood as the law applied by the familial clans), in the following terms: ‘the heads of extrajudicial organization such as the clan, the village and the guild, would often refer to Confucian doctrine and make certain principles or provisions as the ground of their decisions. The magistrates often recognized the decisions made by the heads of the local communities. In short, in the light of this analysis we find that the Confucian theory of natural li exerted its influence mainly on the customary laws of the local people rather than on the imperial written codes’241. According to this view the influence of Confucian doctrine and the contents of the corpus of precepts contained in the Confucian li were indirect on the practice of the application of the imperial law in that it was exerted through the mediation of the magistrate, but it was direct on the customary law of the clans.

The results of Liu’s work also contradict the common assumption that, not only Confucians, but also Legalist principles influenced exclusively the developments of Chinese law in its early stages. During the reign of Qin, the dynasty that officially adopted the Legalist principles as the orthodoxy of the empire, as shown by the records, the guiding principle in the application of punishment was in fact the retributive philosophy of punishment. Instead, the Legalist philosophy strictly purported the principle of deterrence: applying comparative lighter punishments to minor offences and severe punishments to serious crimes242. The principle of yixing (punishments should know no degree or grade), distinctively legalistic for its origins, did not guide the application of law. Instead, the principle applied was that punishment should reflect degree and grade of the crime, and the punishment for superiors and aristocrats had to be lighter than the punishment applied to subordinates and common people. This shows that it is inaccurate to relate too tightly the principles informing the Qing code to the Legalist thinking243.

Nevertheless, to appreciate the influence of moral precepts on law, it may be accurate and useful to distinguish between the letter of the law and the actual application of law. In fact, the influence of moral precepts in determining the actual content of the law may be better appreciated in the application of the law. Recent researches demonstrated that during the XIX century the magistrates variously used written law, cultural norms and local customs to justify their decisions. They seldom referred to the code in rendering judgments. Mark Alle argues that, on balance, culture and custom may have mattered more than codified law in magisterial

240 It is misleading to claim that the Sung judges could decide matters “on the basis of their inner conviction”. Liang, Linxia (2007: 234-248).241 Liu, Yongping (1998: 332).

242 Ivi: 322.

243 Ivi: 324.

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adjudication244. Philip Huang instead argues that even if statutes were not mentioned in civil judgments, nevertheless the latter were based on statutes and sub-statutes. In fact, common civil judgments were written orders to be pronounced to litigants prostrated to the bench, rather than judgement that had to be reviewed by upper levels of the judicial hierarchy. Only serious criminal cases had to be reviewed by upper level organs. This would explain why, in Alle’s opinion, references to dispositions of the code were almost absent, except in criminal judgements. According to Huang the local magistrates acted not as mediators seeking compromise settlements between the litigants, as the Confucian teaching suggested, but rather, almost always, as judges ruling for one or the other litigant according to the law245.

The above mentioned argument supports the view that law had a separate functioning and scope in respect to morals, at least in the practice by the state officials. The opposite view holds that the ideal structure of social relationships, based upon philosophical doctrine (which in turn was modelled upon already existing principles informing the positive morality of society), was translated, embodied, and instilled into the legal system. Therefore even if the law apparently did not only regulate behaviour but also determined the structure of social relationships, the truth is that the law reproduced and in some ways enforced the ideal moral structure of society. Even recognizing the general assumption that ‘In all societies, law reflects and supports dominant ideological and ethical systems’, Stanley Lubman holds that in traditional China ‘law unambiguously reinforced ideas of hierarchy and subordination’, typical contents of the moral doctrines, to a remarkable unique extent246. The existence of law was therefore not independent, since its boundaries were not distinct from moral demands, such as ceremony and ethics, and thus conceptually combined with them. Lubman gives the example of the possibility to apply retroactively the norms contained in imperial codes, promulgated when the codes were periodically revised. The justification of the retroactivity of these norms was the idea that ‘law was only “a revelation of a higher norm which has been in existence since an infinitely earlier time and, therefore, the laws giving actual expression to this higher norm could be applied retroactively’247.

Roberto Unger categorizes legal systems in terms of customary law, bureaucratic or regulatory law and rule of law and includes China as an example of customary law. China’s pre-modern legal system according to Unger was unable to develop beyond bureaucratic law due largely to the absence of separation between state and society and the lack of a transcendent deity248.

244 Allee (1994: 122-142).

245 Bernhardt and Huang (1994: 7).

246 Lubman (1999: 16). In his opinion, ‘law was but one set of norms and was inferior to principles of nature, heavenly reason, religious canons, ethics and rules of propriety’. Ivi: 14.247 Ibidem. See also McKnight and Liu (1999) and Keller (1994: 239-241).

248 See Unger (1977) and, for a critique Alford (1986: 915-972)..

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A principle which regulated social interaction and still has paramount importance because it works as a normative principle of social organization is constituted by the notion of pao. The notion of pao249 is illuminating in understanding the way social relations work in China and the system they are apt to frame. ‘The Chinese believed that reciprocity of actions (favour and hatred, reward and punishment) between man and man, and indeed between men and supernatural beings, should be as certain as a cause-and-effect relationship, and therefore, when a Chinese acts, he normally anticipates a response or return. Favors done for others are often considered what may be termed ‘social investments’, for which handsome returns are expected’250. Lien-Sheng Yang acknowledges that in every society this happens to some extent, but points out that in China ‘the principle is marked by its long history, the high degree of consciousness of its existence, and its wide application and tremendous influence in social institutions’251. The principle of pao, the ‘principle of reciprocal response’, ‘has been applied to social relations of all kind, beginning with that between the ruler and his subjects, the first of the Wu-lun, or Five Relationships’252. The principle of pao operates on the basis of family ties (for example between father and son) and in turn reinforces them. Yet, its origin lies in the religious belief of a sort of a cause-effect chain for human acts and Heaven response. The principle of pao may be considered universalistic in nature since it prescribes reciprocity for all social relationships. However, this principle is particularistic in its actual functioning, ‘because a social response in China is often additional entry in a long balance sheet which registers the personal relationships between two individuals or two families. Conditioned by already established personal relations, a given response can easily have an effect, or at least an appearance, of nepotism and favouritism. Generally speaking, personalized relations have a tendency to particularize even institutions which where intended to apply in a universalistic manner. Thus in traditional China, even in a case of fulfilment of an official duty, if it happened to be beneficial to a particular person, he would be expected to cherish a sense of indebtedness to the person who was instrumental in the outcome’253. The coincidence of the notions of private personal relations and public duties is the cause of favouritism, nepotism and problems generated by the general overlapping of family bonds and institutional relationships and it is somewhat a structural problem in Chinese society but it has played a role in the impressive economic growth of the last decades, in some ways subsidiary to the legal regulations of the market254.249 The word has a wide range of meaning but the core meaning is “response”, or “return”.

250 Lien (1957: 291-308).

251 Ivi: 291.

252 Ivi: 296. The five relationships have been listed in Chapter II above. The main influences of the concept of pao in Chinese society are listed in three categories: familism, worldly rationalism and ethical particularism.253 Ivi: 303.

254 The case of Chinese economic development deserves attention in the perspective of the studies about the role of culture as preventing or fostering economic development. The preference for the family interest upon the public affairs of the collective echoes the thesis of ‘amoral familism’ elaborated by Banfield, and later applied by Putnam. Amoral familism is assumed to be a hindrance to economic development. However the case of China seems to disconfirm, at least partially, this hypothesis. Further studies would be needed to shed some light on the topic.

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4. The method for applying imperial statutes.

The comparison between the rules of the imperial code and the actual practice of law by the magistrates, who handled civil cases using principles contained in the code, shows that the two were linked by operative principles255. Imperial statutes were understood as measures to regulate specified cases. The law had to regulate the objective and subjective elements (subjects, behaviour, circumstances and so on) in detail. Imperial statutes were considered as a scale, an instrument to measure the correctness of the action. The application of the law consisted in the measurement in ascertaining and verifying the equivalence between the behavior, the circumstances and what was established by the disposition of the code. The Ming and Qing Codes contained the rules constituting articles and those constituting sub-statutes. The first were called lü or rule, and contained the general description of the criminal behaviour. The second were called li or exception: contained the description of detailed situations which, according to the legislator, needed a special different treatment. The li are more numerous in the Qing code in respect to the earlier Ming code: very detailed rules added on ad hoc basis any time it seemed necessary to add new rules for a new situation. For example, for the crime of theft were added numerous li distinguishing the crime according to the kind of property that was the object of the theft. The Emperor was in principle the only authority empowered of making and amending the laws256. His authority had to be maintained the only existing one, to guarantee the uniformity of the law in China. To control the administration of justice, the powers of the local officials were limited to strictly carrying out the wishes of the emperor as specified in the code. The offences were therefore defined in details to constrain the discretion of the officials.

As for the general principle of ‘economy of means’257, the code contained the detailed regulation of some behaviours and the rules to vary the dispositions according to the different cases. The rule functioned as a model or parameter. All the cases which did not perfectly corresponded to the rule had to receive ad hoc regulation modeled according to the parameter and the formulas to state the equivalence. Since most of the cases were slightly different from the model contained in the disposition of the code, the rules ad hoc constituted the majority. This practice created an inversion of the relationship between the general case and the exception, fostered by the purpose to cherish precision and accuracy in applying the law: the penalty had to be exactly proportionate to the committed crime258. In the general part of the codes key expressions were defined as standard formulas. These formulas were used to discipline any prospective case, even those without explicit discipline. The wording in the general cases was such as: ‘‘increase/decrease the punishment by one

255 Bernhardt and Huang (1994: 9).

256 See, among others, Keller (1994: 239-241).

257 Other examples of the principle of the economy of means were the three notions of confession, mutual concealment and accusation. Those three notions ‘form the substratum of a highly complex and wide ranging network of legal consequences’. Ivi: 159).258 Ivi: 161.

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or more degrees’; or: ‘(punish) with the same punishment’; or: ‘the same punishment’; or: ‘estimate as x and sentence’ and ‘by means of x sentence’’ all these clauses had the function to link a legal consequence to an actual case without listing all the possible cases to which the rule could be applied (a herculean task given the infinite possibilities that can happen in reality and given the difficulty of listing them all). Considering the above, seems reasonable to say that, in spite of the general rule according to which only the emperor could make law, the officials instead created rules and laws. In cases for which no predetermined rule could be found, the judge-official was allowed to decide the case ‘by reference to that provision of the code that was more analogous to the facts before him’259. In the Qing code the provision stated that in cases in which no statute could be applied to the case ‘the judge was authorized to cite another rule under which the facts could be subsumed on the grounds that they closely resembled (pi fu) the situation primarily contemplated by the rule’260. In the Ming and Qing code there was an explicit provision empowering the officials to use analogy. The control by the Emperor upon the activity of the officials was strict: the recommendation of the judge containing his opinion about the opportunity to increase or decrease the punishment had to be forwarded to superiors for ratification and the Emperor should have been informed. In fact, the ultimate decision on changing the punishment was reserved to the Emperor himself (Board of Puinishment)261. The procedure of analogy was provided to avoid the proliferation of detailed legislation. Moreover, not all the decisions taken using the method of analogy were turned into laws by the Emperor after approval262. The basic principle was that the power was all in the hands of the ruler (the Emperor) and the officials were not entitled to create law, they were only allowed to apply the existing law. The functioning of analogy was based on the usage of a disposition as a model to determine the characteristics and the seriousness of a new criminal conduct. Flexibility was ensured through the prevision of categories and degrees of penalty, based upon the degree of guilt (the subjective element of the crime) and the relationship between victim and the criminal. The illegal conducts were considered comparable if the consequence of the behaviour was comparable even if heterogeneous in respect to that provided by the disposition, for example: ‘if the essence of theft is taken to be an appropriation of another’s property without his consent, we can see why a number of offences are classified not as theft itself but as comparable to theft’263. The Chinese official was not provided with interpretive rules, which would have allowed manipulating the literal meaning of a disposition and extending it to include the case at hand. ‘Although he did not work with formalized rules of interpretation, he still had to decide whether a particular rule covers the case before him or not. On the whole, he had to decide whether given facts clearly fell within the scope of a particular provision of the code. On the whole, he

259 MacCormack (1996: 166).

260 Ibidem.

261 Ivi: 167.

262 Ivi: 174.

263 Ivi: 170. In general for Chinese law technicalities see Ivi: 145-161.

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was not prepared to go too far in extending the wording of a rule. This is because it was unnecessary for him to do so. He was empowered by the code to apply by analogy a rule that he deemed to be appropriate in the light of all the circumstances of the case’264. According to M. J. Mejer, Nakamura had distinguished two kinds of analogy: that in which a rule was applied to facts which resembled those covered by an expressed disposition and that in which “the spirit of the law, the meaning of the provision, or the intention of the legislator is the basis of analogy”.

What has been said so far proves that the law in imperial China was intended as a standard to measure human behaviour and that, notwithstanding the supreme principle, according to which lawmaking power was a prerogative of the empire, as a matter of fact, the local magistrates created and interpreted the law to some extent outside the control of the emperor.

5. The structure of normativity.

The normative structure may be represented as a series of progressively larger concentric circles originated by a single point at the centre, resembling the waves generated on the surface of a quiet lake by throwing a stone into the water. The individual is represented by the point at the centre. In the rings, progressively larger, are situated the duties toward the closest members of the family, the distant members of the family, the state and so on, until reaching the farthest relationship with the

people in the tianxia, 天下, all under Heaven, or the whole world. From the center to

the farthest ring it is as if there were no interruptions of blood or of authority. Any person, the central element in the scheme, is regarded as having duties towards the family, the state and progressively larger communities. The force of these duties is stronger towards the persons situated in the rings closest to the centre265, which are the closest family members. They are the ones toward whom the virtue of humanity should be showed in full: ‘Being ‘affectionate toward relatives’ is the ‘greatest application’ of humanity, because it indicates an immediate extension of one’s inner morality’. The cogency of the duty diminishes progressively in the larger rings. The point is that the duties in the concentric rings, for example the duty to become filial to one’s parents, or loyal to the higher officials, are fulfilled through personal moral edification and self cultivation: ‘filiality is not expressed as an obligation toward an outside authority but as an integral part of his self-realization’266. Moreover, the process of self-cultivation which lies at the core of the moral life is represented as ‘a

264 Ivi: 173.

265 “While one is to have sympathetic concern for all people, the magnitude of one’s feeling diminishes as we move outward of the family. Just as the concentric waves that emanate from the spot where a tossed pebble strikes the surface of a calm pool decrease in magnitude as they move farther from their point of origin, the intensity of one’s love decreases as it moves beyond the family and out through society. The strongest feelings are originally and forever within the family. The virtues of filial piety (xiao 孝) and respect for the elder brother (ti 悌) are the sources from which one draws in extending and developing such feelings for others and the most profound examples of the type of concern that characterizes those who are ren”. Ivanoe (2002: 2). 266 Tu (1989: 54).

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process of extension’ and it is not limited to the sphere of personal inner life, but entails relations with others. So Confucius said: ‘A man of humanity, wishing to establish himself, also establishes others, and wishing to enlarge himself, also enlarges others. The ability to take as analogy what is near at hand can be called the method of humanity’267. As the person progresses in moral cultivation, her influence will expand until reaching progressively the larger rings, including the whole universe268.

The individual, the family and the state are regarded as holistic wholes, analogically ordained. Processes within the state are analogically compared to those in the family and within the individual269. The parallels between the state, the family and the individuals operate in both directions from the state to the family and vice versa. However, the paradigm is the family. If a person fulfils the family role, which is made of a cluster of obligations, his moral life is correct.270 The family and the state are analogically structured but the family is the primary instrument for ordering society and the state, considered ‘a macrocosm of the body’271. The social order derives from the proper order of the state, the family and oneself according to the eight steps:

‘In order to make manifest one’s exemplary character to the whole world one has to regulate/heal one’s country; in order to regulate one’s country one has to sort out one’s family; in order to sort out one’s family one has to develop one’s own self; in order to develop one’s own self one has to rectify one’s mind; in order to rectify one’s mind on has to make one’s intentions sincere; in order to make one intention sincere one has to extend/complete his knowledge/understanding; in order to extend one’s understanding one has to investigate things’272.

This model is analogical and emphasizes the micro/macrocosmic relationship between justice on the individual level and on the societal level273.

One of the interpretations of the virtue of benevolence (仁 ren) understands it as

the capacity to show kindness and never refuse to help someone who asks for help. According to this interpretation, a powerful person is a person who can help many other people. The goal is to be able to help, under request, relatives, friends and progressively people having looser ties with the agent: the obligation to help people in the closer ring to the person are more stringent.

267 Analects 6.30.

268 For a discussion of the qualification of Chinese ethics as a virtue or rather a duty ethics see Hansen, (1996:173-192). While denying that classical China has no duty ethics since it does not possess sentential form and ‘it lacks the axiomatic or theoretical structure of Western systems, Hansen also refuses the definition of Chinese classical ethics as a virtue ethic in the theoretical sense, accepting the definition in a historical sense (Ivi:173-174).269 Fox (1995: 48).

270 Ivanhoe (2002: 1).

271 See Fox (1995: 43-50).

272 The best account of this is in the Daxue or Great Learning, one of the Confucian Four Books

273 Fox (1995: 43-56).

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In the above described model of morality the obligations toward the family are considered stronger than the obligations towards the state. One of the obligations toward the state is to obey the law. Therefore, in this framework, in case of conflict between the law and the duty towards the family, according to the hierarchy of moral duties, the duty towards the family should prevail. In a say attributed to Confucius the good father is not the one who denounce the theft of a sheep by the son but rather who covers it. In Chinese literature stories abound in which the contrast between respect for the law and fulfilment of the duties toward the family are resolved in creative ways, always respecting the duties to the family and often avoiding the punishment inflicted by the state. One will be reported here in the words of Chang Wejen ‘One of

the passages reported that when Shegong 葉公, the magistrate of She 葉 district in the

State of Chu 楚, bragged that among the subjects of She a “straight fellow” (zhi gong

zhe 直躬者) gave evidence supporting the accusation against his father of unlawfully

taking a sheep, Confucius disagreed and argued that it was “straight” for a father to cover up his son’s crime, and a son to cover up his father’s. Here he apparently did not used the word zhi liberally to refute Shegong; he was emphasizing that it was more important to protect the relationship between close relatives than to state a fact straightforwardly’274.

On the contrary, the idea of the authority of law is that it gives reasons for choice and action275, excluding other reasons. Moreover, a legal system is usually described as a system which ‘directly or obliquely determines what actions person should or should not be physically prevented by others for performing’, and ‘in attaching enforceability to its duties, thereby assign to the action (performance or forbearance) enjoined by those duties some kind of priority over all other possible actions, in circumstances where an enjoined action is incompatible (jointly umperformable) with a legally unenjoined one)’276.

There are reasons why a system based only on morality is not suited to solve problems created by social coordination and social cooperation. Alexy adduces three empirical practical arguments to show the ‘practical normative necessity’ of a system of laws. The three arguments are drawn from Kantian philosophy and concern respectively issues of determination, enforcement and organization. A first reason to affirm that a system of laws is necessary from a practical point of view is related to problems of practical knowledge. In fact, for some practical questions it is impossible to give a definitive answer. Moreover, even if there were a solution to this problem, to secure the respect of what the law determines (Alexy makes reference to rights) there must be a ‘public lawful external coercion’. To ensure legal certainty and efficiency law enforced by coercion is needed, even if ultimately a certain degree of spontaneous

274 Chang Wejen (2009).

275 Raz (1979).

276 Steiner (2003: 124-125).

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adhesion is still required for the law to function. Lastly, spontaneous moral action as opposed to organization and it is considered not good enough for solving problems where the organization is needed. According to Alexy ‘organization needs the law’. The three arguments are sound and help in highlighting the differences with the Confucian moral structure. The latter is based upon the clan, which constitutes the fundamental social unit and offers both an organizational structure (the organization of the clan) and guarantees the enforcement of the moral or customary rules as well277.

The model of morality above described explains the profound reasons of two different phenomena which characterize the current Chinese circumstances. First, the still existing contrast between the family and the state as collective entities, according to this morality, sees the prevalence of the family upon the state, due to the higher force attributed to the duties toward the family. Second: the analogies between the family and the state and the coincidence of the ideal ruler with the ideal son are the basis of the model of the rule of man. The consequence of this are first, that the link between the population and the ruler is a link based on trust and not on accountability; second that the official and the ruler are regarded as mother and father, and are considered the persons who care for the welfare of the subjects as the mother and father care for the wellbeing of their child. This model is important for the implications for the theory of authority, in fact, it did not determine a positive attitude towards authority (of the state officials), which was perceived with suspicion. On the other side, the presumption that the authority would have taken good care of its subjects did not originate the need to set constraints for the action of the authority. As a consequence, the need of questioning the authority or setting limits to the power holders is not perceived as urgent necessity. In this respect one of the main reasons for the prevision of human rights, the need to provide protection of the basic interest of the person towards the power holders, may not be determinant.

Furthermore, the respect for the duties toward the family is considered as a moral justification to disregard the prescription stated by the law and even to find creative solutions to escape legal punishment. The emblem is the legend of the wise King who went in exile carrying his father with him because his father had to be condemned according to the law, while the moral norm prescribed to cover the crimes committed by the father and the son reciprocally. The story of the king is brought as an example of creative way of being virtuous.

The distinctive character of the Chinese legal experience is the non-autonomous character of the law in respect to other normative domains, and above all from the political sphere. This feature distinguishes Chinese legal experience from that in Europe. Law in Europe developed in time as a separate discipline, having its own justification independent (at least at some point in history) from morality and religion, and being distinctively legal. Even if it was certainly influenced by moral and religious ideas, jurists developed autonomous justifications for the use of law278. It

277 This might be due to the different attitude of Confucian ethics to interpersonal relationships. The law is not intended as the norm linking two freedoms in Confucianism.

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may be important to specify the meaning of the use that here is made of the terms custom and customary law. Custom is a habitual, usual, regular way of behaviour, or a pattern of habitual behaviour. Customary law instead is constituted by an objective element, the habitual behaviour and the subjective element of the conviction that the behaviour is binding: ‘opinio juris ac necessitatis’279. Customary norms are deemed legally binding in the communities which practice them. In the West, politics and morality are important areas that may be able to produce law but are not considered law; therefore they have to be distinguished from law280. Law did not have a theoretically autonomous justification in China, separated from either moral or politics or both. The obedience was guaranteed by coercion but also by the internalization of ethical norms. This determines the lack of certainty which still characterizes legal experience in of contemporary China and the character of ‘ductility’ or ‘flexibility’ which characterize Chinese law, the official commitment to ideology notwithstanding: ‘on politically sensitive issues, the line between what is permissible and not in speech and publication is sometimes “vague and fluid”: “[w]hat may be tolerated in some circumstances may be subject to grater restriction when there are certain aggravating factors present”281.

5.1. Epistemological presuppositions of morality.

Confucian moral theory is tightly linked to the theory of knowledge, which however has not been articulated in a fully fledged theory by Confucius282. The very possibility of moral development depends on the specific learning dimension of moral development. This dimension is characterized by the linkage between affective and cognitive development. Feelings and emotions play a paramount role in the rule making and in the acceptance of the rules, rather than reasoning in the form of universal principles283.

As mentioned already, ren 仁 , translated as ‘benevolence’, ‘compassion’, is the

most important quality or virtue of the just man in Confucian morality. Properly understood, this notion can be defined as a moral notion with epistemic relevance. It is epistemic because it consists of the attitude, the disposition to listen to other people, coupled with the capacity to modify oneself. The moral perfection is only apprehended from the internal dynamic of things. In a laic system in which there is

278 As Berman (1983: 24-29) points out, legal institutions in Europe were different from other kind of institutions (including trials, such as legislation and jurisdiction, norms and legal concepts generated by them). The current issue of jurisprudence is reaffirming the autonomous character of law from politics after the critiques raised by feminist legal theories, critical race theory and critical legal studies. See also Modak-Truran (2008).279 For an account of the different theories upon the nature of custom in law see Postema (2007).

280 The above mentioned distinction is found in Berman (1983: 24).

281 Chen (2006: 504).

282 See the discussion upon the style of writing in Chinese classics of philosophy in chapter I above.

283 The links between affective and cognitive development are known and investigated by psychological theories.

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not transcendent authority that indicates the way for perfection, morality depends upon knowledge. Thus, ‘from the time of the earliest thinkers in China, human emotions cognition and motivation have always been regarded as being interwoven. This contrasts with the West Platonic legacy that separated them into different, often mutually exclusive “faculties”’284.

The virtue of ren is relevant because it is pivotal in the determination of the right rule to adjudicate a case at hand. The wise man, which followed a personal path of self development and self education, comes to the right adjudication of the case at hand, finding the right rule through listening and deep understanding of the whole circumstances of the situation. The synthesis of the wise man represents the correct solution for the case at hand both from a moral and an epistemological point of view, and it aims at satisfying both the parties in conflict. The parties should be willing and ready to change their mind, to reform their mind and happily acknowledge the results.

Munro highlights the cognitive element in the emotions of trust and shame, which plays a pivotal role in Confucian morality. These feeling are considered to allow people to develop a system of standards and goals when they evaluate themselves and others: Second level evaluations are the measure to reform first level evaluation in case the two are not coincident285.

The uniformity of moral precepts is not guaranteed by universal rules of reasoning. Instead, it is acquired through the knowledge of the virtues, as this quote attributed to Confucius states: ‘Some are born with the knowledge [of the virtues]. Some learn it through study. Some learn it through hard work. But when the knowledge is acquired, it comes to the same thing. Some practice them naturally and easily. Some practice them with facility. Some practice them with effort and difficulty. But when achievement is made, it comes to the same thing’286. The virtue, that represents excellence in the moral life, can be reached through study (theoretical dimension) or through hard work (practical dimension). Moral propositions are knowable and once known, they ‘bring to the same thing’. Even if apparently the statement that the ‘knowledge’ acquired ‘comes to the same thing’ may be assimilated to a cognitivist point of view, the dichotomy between ethical cognitivism and non-cognitivism is not suited to describe Chinese ethics. Chinese thinkers did not conceive the world in terms of something objective and given, knowable/unknowable with human faculties. The ‘same thing’ to which wise men come upon reflection may be the wise and just solution in a given case, the individuation of the rule in a given circumstance. The uniformity is given by the process of self education. Once the

284 Munro (2008: 60).

285 Ibidem.. The Author is convinced that these emotions could play a role in contemporary challenges to build a legal system in China in developing standard of trust typical of a system of legal rules which are for example consistency and transparency, in contrast with the long standing practice of the officials that used secret regulations (neibu), with the practice of using extremely vague expression in law drafting which allow space of the most disparate interpretation, harming the existence of a normative message whatsoever, with the not uniform application of the law due to the huge interpretive power of local officials. 286 The Doctrine of the Mean, XX, 9.

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process has been put further and accomplished, the balance between emotions, feeling and reason allows the wise person to find a proper solution in each situation (which is not already given nor the only one possible, but, say, the one upon which the largest possible agreement can be reached) and to behave correctly in each situation, in the light of the contingent principles of morality and of the common characteristics of all persons, and provided adequate knowledge of the facts.

6. The structural prevalence of politics upon law.

The structure of morality sketched above contributed to create a system strongly characterized by a ‘structural prevalence of politics upon law’. Among others, Scwhartz acknowledges the general primacy of political order in East-Asian societies287, assuming that the generalization entailed in the affirmation that the political order had a central importance and weight in Chinese civilization is stated correctly288. Lubman as well holds the view that Chinese public order ‘was ruled by “all encompassing authority” 289. The lack of the theoretical affirmation of the superiority of law upon political authorities is one of the differences between the Western and the Chinese legal traditions. According to Berman, even if the principle of the supremacy of law was formalized with the first Constitutions, this principle was already present and was affirmed since the XII century290. The King was the source of law but was bond by it, unless a formal change intervened according to the relevant procedural rules. The guarantee of the submission of the King to the law was due to the procedures he had to respect to issue new legislation, but also to the distribution of power among the different institutions: the English judges had the power to annul as invalid the acts of the King which were issued in violation of the law.

In China the political realm was not only prevalent upon the law but also partially coincident with the realm of ethics291. The meaning usually associated to the word ‘politics’ is the art of good government. The meaning usually associated to the term

term 政 , zheng, or politics in Chinese, is, instead, ‘rectification’. The meaning of

politics 政 zheng is ‘concerned with the organization, direction and administration of

all governmental units involved in the regulation and control of people in a given society. (…) And in the Confucian tradition, politics means ‘rectification’.

‘The goal of politics is not to attain law and order in a society but also to establish a fiduciary community through moral persuasion. The function of politics then is centred on ethical education. In our ordinary use of the term, we also can consider

287 Schwartz (1987: 1-32); Chang, Wejen (1986).

288 Schwartz (1987: 1-10).

289 Lubman (1999: 15).

290 Berman (1983: 83-86).

291 Tu (1989: 58); Chung-yung XX: 11.

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politics a branch of moral philosophy, dealing with the ethical relations and duties of governments. But the Confucian concept of rectification involves many aspects of ethicoreligious thought that are not usually associated with the political arena’292.

The above described idea of the art of government is an extension of moral education: ‘To govern is to be straight. If you steer straight, who would dare not to go straight?’293. Rectification is considered to start from the ruler and potentially reach all the domains under his guidance, influencing those territories not under his guidance. All the people below the ruler, starting from his ministers, are involved in the process of rectification. The goal, the end, the ideal accomplishment of this process is the creation of a harmonious community294.

While priority is attributed to political sphere, the legal domain is considered less important. The theoretical premises of this hierarchy lie firstly in the definition of the idea of man and secondly in the indication of the ways in which a man can perfect his being. The core idea is that a person edifies herself by edifying others.

In China, since the beginning, the political dimension seems to be characterized as an ethical totality, and this characteristic is continuous through the history of China. While in the West, the concept of the state as an ethical totality was arguably the forward of a kind of totalitarianism as a later intellectual result. The idea of politics is based on what has been defined ‘a fixed hierarchy of political functions’. Each person in this hierarchy exerts his direct action upon the people who are immediately near but the dynamism that animates the structure comes from above. The centre of the

empire, 中 zhong, corresponding to the person of the emperor, is the heart of moral

and political activity (which partially coincide). The idea is that if the centre is well established, the other parts will be wealthy and functioning. ‘Yet we also notice the concept of reciprocity being applied to the entire situation under consideration. The ruler is asked to relate to others in terms of their perceptions of what he ought to do as a political leader. This insistence upon his empathetic understanding of those who, in some way, come into contact with him is reminiscent of the Confucian golden rule: “Do not do to others what you would not want others do to you”. In a deeper sense, however, the ruler cannot exercise his power directly on the people; his political influence can only be exerted gradually through the mediation of appointed officers. If he fails to identify himself with the welfare of those who are responsible for the execution of his policies, his leadership will be greatly weakened. What he must do, then, is to see to it that his esteem for the worthy, his care for his relatives, and his

292 Tu (1989: 49). the interptetation of Tu Weiming adds the etico-religious dimension. His interpretation of Confucianism sees it as a religious thought. This is one of the interpretation which can be given of Confucianism. But it is not possible to discuss the religious character of Confucianism in this study.293 Analects, 12.17.

294 The notion harmonious community is apparently elusive, a notion which meaning is vague. It will not be defined in the present work. However, on this concept see Wei, Yan (2006); Xu, Xianming (2006); Cheng, Chung-Ying (2006); Fox, Alan (1995); Hermann, Mark (2007).

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respect for the great ministers do not hamper his consideration for all officialdom – including the host of subordinate bureaucrats as well’295.

The coextensive character of family and state described above determines the overlapping of the notions of the ruler and the model of the wise man. The basic assumption is that who has harmonized his human relationships is capable of administering his state with rites. The harmonization of human relationships entails a self-transformation and education. Therefore the good government requires the rectification of one’s personal character. This is a ‘set of expanding concentric circles’. ‘The ruler must not fail to cultivate his personal life. Wishing to cultivate his personal life, he must not fail to serve his parents. Wishing to serve his parents, he must not fail to know man. Wishing to know man he must not fail to know Heaven’ 296. The scope and meaning of the commonality so achieved exceeds the political community and extends beyond the territories where the emperor’s authority is exercised, that is, foreign kingdoms. Theoretically the emperor is responsible of the

wellbeing of everything under Heaven (天下) and the responsibility that the emperor

holds entails an obligation towards its subjects. The scope of the influence of the ruler may be ideally progressively enlarged to reach all the areas of the universe, and deepened to exert a long lasting impact on the minds of the people. The ruler must therefore be able to reach the minds of the peoples in all classes of society and understanding their will. The Confucian ideal of political community can be represented as a ‘chain of command’ based on moral education by example of the person in charge. It all stems from the fundamental loyalty and respect of the emperor. The ground for loyalty and respect is the righteousness and moral integrity. ‘The ruler who is a real king (wang), rather than a mere leader who exert hegemonic power (pa), must cultivate a holistic vision of politics, penetrating deeply into all levels of human relatedness’297. The process of inclusion should be based upon the principle of impartiality. The pillar of impartial leadership in the ruler’s government is the virtue of i, or righteousness. This virtue consists of the capacity to judging and of honouring the worthy298. ‘I is the human path through which one’s inner morality becomes properly realized in society’299. Righteousness is realized through a ‘holistic evaluation of objective conditions’, a practical judgment300. The respect of the principle of impartiality discriminates between the realization of the ideal or the failure in realizing it.

According to Tu Weiming, li or rituals have different functions: first, it ‘helps the ruler to discipline his body and mind through ritual practices. Second, it creates an

295 Tu (1989: 59-60).

296 Chung-yung, XX:7. Tu (1989: 53).

297 Ivi: 60.

298 Tu (1989: 52).

299 Ivi: 52.

300 Ibidem.

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atmosphere in which any act that the ruler performs has symbolic force. Third, it defines the role of the ruler in terms of ethicoreligious ideas. Fourth, it ritualizes politics and provides it with a structure of meaning that transcends power relationships. And finally, it enables the ruler to govern without himself being directly involved in the mechanism of control’301. The performance of the rites is the external, public manifestation of the emperor’s virtue. The idea is that this public manifestation of the virtue of the emperor is apt to attract the whole people to him. According to this conception, the difference between the ruler and the hegemonic leader is that the ruler is a person who truthfully participates to rites and ceremonies, while the leader just exercises hegemonic power. The participation of the entire population is important because rites have a strong symbolic significance, which is accorded with the spiritual orientation of the established rituals in society302. Tu Weiming’s explanation of the idea that the key to understand the technique of ruling a kingdom is to understand proper sacrificial ceremonies can only be understood under the premise that the meaning of the word ‘politics’ is different from the one we attach to that world. ‘The prominence of ethical education is evident’: the ruler should rectify straighten and aid them so they discover from themselves 303.

The idea is that the government is not a control mechanism based on impersonal factors, but a manifestation of the art of moral persuasion. That is the very idea of the rule of man: the good government depends on the men: above all on the ruler, and then on his ministers and officials. There is not a clear distinction between the nature and function of government office and the personality of those who are actively involved in the governing process.304 The point is that personal cultivation has public relevance. And the personal cultivation of the ruler is necessary for the sake of the empire and its good order. The persons that can judge if the ruler cultivated his personal character are the people who are closest to him.

7. The notion of ‘person’.

The conceptualization of the idea of person, and in particular the Mencian elaboration of the notion, may be able to explain why the argument based on the idea of qualities, characteristics possessed by every man from birth and which are inalienable has not proven to be particularly strong in grounding human rights discourse in China. However, a closer analysis may highlight a different potential underpinning for the recognition of human rights as attributes of person justified by distinctively Chinese moral ideas.

The starting point to investigate the idea of human nature305 in classical Confucian philosophy is one of its core notions, the notion of xing. This term is usually

301 Ivi: 61.

302 Ivi: 46.

303 Ivi: 55.

304 Ivi: 49.

305 On this concept see also Cua, Antonio S. (2005).

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translated as ‘nature’. Different uses of the notion of xing can be found in the Mencius, in the Analects and in Xunzi. The paradigmatic elaboration of the notion can be found in the works of Mencius, in which it is described as an achievement concept. Ames notes that this concept and its interpretation by Western scholars have brought much confusion because the term has been translated as ‘human nature’, what is naturally or genetically given306. The Chinese notion of personal development instead possesses creative and discontinuous aspects which have been minimized by the traditional interpretation and due to conceptual equivocation. The idea of something already given that needs to be developed, entailed in the common usage of the term ‘nature’ is misleading if referred to the term xing. Instead, it is just a potential that needs to be developed through cultivation. The difference in respect to the Aristotelian notion of φύσις is the primacy of the creative dimension in the process of development of xing. According to Ames, in classical Confucian thinking the definition of ren xing is a culturally, historically, and socially emergent definition of person. Humanity is a distinctively cultural construction and not a pre-cultural endowment. Moreover, as Ames points out, ‘xing does not have primarily a labeling or reference function, but rather requires explanation cultutologically as something defined and enacted in community’307. Ames notes that the ‘xing as a creative act is rooted in the xin heart-and-mind, and human beings do have certain determinative propensities as a function of the xin’. The sage and the man both have xin and xing, and the person who actualizes them is the sage. Being human does not necessarily means being also a sage, while the sage is a perfect man, a man in full308. Xing is related to maturation or to continuing growth: it is a dynamic notion. To clarify the conceptual differences entailed in this notion, Ames recalls a fundamental difference in the conception of the cosmos. Unlike in the Western philosophical history, Chinese classical theories of creativity do not present the notion of a cosmogonic beginning. Therefore, the idea of the universe is not similar to a κóσμος, ordered by some defining principle or αρχή. In a κóσμος the totality of things is ordered and explicable since the beginning, or in principle309, while, Ames notes, in the absence of cosmogonic beginning ‘the power of creativity and the responsibility for creative product reside more broadly in the phenomena themselves in their ongoing interactive processes of becoming…phenomena…exist as interdependent yet self-disciplinary κόsmoi’310. Ames also notes a number of differences between cosmogonic and non-cosmogonic worldview. The ones that seems more interesting for the present discussion are that, in the non-cosmogonic worldview, first, the role of the thinkers is not to discover answers but to create a model of humanity that is persuasive to be emulated (and this is precisely what the Confucian tried to do); second, difference comes before and is conceptually prior to identified similarity, and therefore genus

306 This is also due to the absence of a supreme divine or supernatural personal entity.

307 Ames (1991: 143).

308 Ivi: 45.

309 Ivi: 148.

310 Ivi: 148.

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and species as a category would be dependent upon analogy among sui generis phenomena (and this would explain why the relationship between the rule and the exception seems inverted: there is no universal principle nor universally applicable rule, but only a proper solution for a particular case).

Mencius’s conception of the human being is a ‘culturally refined’ being, not a social animal or a symbol user but a good creature capable of ameliorating herself by self-effort. ‘The ultimate ground of one’s being good is grounded within oneself’311. The process of self perfection is mediated through the ‘proper channelling of intense emotions and symbolic significance of honouring the dead312, rather than on the act of self-imposed isolation’, as for example was theorized and advocated by the Daoist doctrine. Therefore, xing represents ‘an ongoing poietic process’, ‘conditioned by its particular context’313. Even inanimate things have their xing, but the xing of a rock or of the water does not change while the xing, of man changes through refinement. The most important point is that ‘what is innate in the xing of persons is simply the propensity for growth, cultivation, and refinement. Xing, then, denotes a human capacity for radical changeability that is qualitatively productive’314. Xing is not a given essence, an endowment since the day of birth. As a consequence, man is the result of the interaction with the environment, understood as both social and natural reality, in which he lives. The starting point of a person is given by social as well as personal factors ‘[t]his initial relationality is captured conceptually in the four categories of interpersonal bonds (ren), societal bonds of reference (li) meaning and value disclosing bonds (yi), and intellectual bonds (zhi), all of which are open to cultivation’315.

Xing has normative implications in the sense that it is the best way for something to grow, meaning ‘relationally good as ‘good at’ or ‘good for’ developing for oneself those bonds which tie one into family and community’316. What is really important is not the potential but the cultivation of a person. ‘The cultivated product of the four stirrings is human; mere consciousness and desires are animal’317. Turning to the normative side of xing ‘what is ‘best’ is only retrospectively understood. The norm comes into being pari passu with the process. That is, the norm itself is an emergent product’318.

311 Tu (1989: 51).

312 The mourning ritual was a public institution; therefore its concerns are both the behaviour of the individual and the effects of that behaviour upon the society. Ivi: 41.313 Ames (1991: 153).

314 Ivi: 152.

315 Ivi: 155.

316 Ivi: 156, apparently the idea of men as good is a neo-Confucian metaphysical interpretation of a concept that did not have metaphysical implications in Mencius, this according to Graham and Ames. 317 Ivi: 158.

318 Ivi: 158.

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Consequently with the analysis reported above, it seems correct to state that absence of the idea of an initial endowment does not allow speaking of a person as the holder of inner prerogatives. Ames uses the term ‘aspirational’ to define a standard that is predefined and needs to be replicated, and ‘inspirational’ as an analogous model that inspires our own conduct.319 The Chinese idea of man is closer to an

inspirational model. If a human being fails to cultivate himself is a 非人 fei ren, a

non-human, he does not qualify as a human person. An underdeveloped human being is for Mencius not a human in any important sense. These presuppositions, according to Ames, underlie contemporary society as well, not only classical community320. They are therefore relevant for understanding the different philosophical premises upon which the idea of human rights can be founded. Moreover, Ames points out that

in classical Chinese philosophy the relation between ‘inner’ (nei 内) and ‘outer’ (wai

外 ) is not dualistic, while it expresses the fundamental element of relationality of

man. In Ames’ opinion the absence of a dichotomy between inner and outer, external and internal, is another element which does not allow speaking of man as an individual.321 ‘To call a person ‘individual’ in the atomistic sense that we associate with some liberal democratic traditions would be to abstract him from the value-invested network of particular and familial and cultural conditions and the immediate cognitive and practical relationships that define him initially, and which make possible his continuing growth’322. This too may be considered as a theoretical obstacle to ground the rights of person as they are generally understood in liberal doctrines.

A last important notion to allow a first basic understanding of the conception of person is the idea of transcendence and the relation of man with transcendence. Some

intellectuals have interpreted 天 (Tian) as a transcendent reality. The prevailing

interpretation of 天 (Tian) instead, does not qualify it as transcendent. It forms an

inextricable whole continuum with man and hearth. A man can transcendence his being through higher progressive levels of transcendence. Each human being possesses the capacity to transcend himself to a next level, always remaining the same person. The process of self transcendence is continuous and transcendence is in some sense immanent. Each person is composed by a transcendent self and an active self. The transcendent self is capable of reshaping the active self by reflecting on the active self. In this process the person is capable to make free choices. Nevertheless, the

319 Ivi: 173.

320 Ivi: 164.

321 Ivi: 156. Tu Weiming does not agree because he interprets these terms in a different way.

322 Ivi: 156. Emphasis added.

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capacity to make free choices has not been theoretically configured as the ground right of the person.

Even if the basic attribution of humanity is rather an achievement concept than an endowment from birth, the potential ground for the attribution of rights to the person could be the fact that by securing some fundamental rights, each person would be allowed to develop creatively his personality.

8. The ideal of the fiduciary community.

Two generally held assumptions, commonly attributed to Confucianism are that it is a community-oriented philosophy and that it does not allow space for the individual. Fukuyama challenges both. To counter the first assumption, he defines the Confucians as family oriented rather than community oriented: the fact that Confucian societies are founded upon strong family ties does not encourage the trust in what is external to the family323. The second generally held assumption, the lacking of space for the concept of individual, is criticized on the base that an exclusive attention to ‘economic and national interest which the whole Asian societies should serve, is due to some secondary doctrines of Confucianism. The core of the Confucian doctrine, instead, is the moral perfection of man. The self cultivation of the individual generates the moral elevation of the community, and poses the basis for a benevolent state caring for its citizens. Tu Weiming as well regards the discovery of a deep subjectivity as not necessarily conflicting with social ethics and social responsibility. Even if the point of departure of the way of the ‘profound person’ is the ‘human relatedness’, in a ‘holistic vision of human relationships’324, the profound person is committed to a never ending process toward subjectivity, which is not in tension with the ethics of the community as it has been described above.

The point then is not, as it is commonly held, that Confucian ethics lacks the notion of individual, or subject, and therefore is not compatible with the idea of individual rights. Instead it would be more fruitful to investigate the nature of the relation between the rulers and officials with the subjects. Tu Weiming defines the ideal Confucian society as a fiduciary community that is, ‘a society of mutual trust instead of a mere aggregate of individuals. In such a society, the goal of the people is not only to live in peace but also to aid each other in moral exhortation as they cultivate their own personal character’325. In Tu Weiming’s description, ‘the mode of exercising power in a fiduciary community differs significantly from that of and adversary system based upon the check and balance of pressure groups. In Chung-yung’s view, the ministers and the officers are not only regulators of the bureaucratic process, but also teachers of the state ritual. The bureaucratic process is not seen 323 Communal ties are not considered as important as family ties (as has been said above). In fact, despite the analogies between the model father-son and ruler-minister, the two models are not interchangeable. For example, the characteristic of the tie between father and son is the primordial tie, while the tie between ruler and minister can be broken for ‘incompatibility’.324 Tu (1989: 66).

325 Ivi: 56.

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merely as an objectively designed control mechanism. It is also thought to be an elaborate ritual act through which the people of the kingdom all become active participants in the community. Ideally, the ministers and officers are the ruler’s messengers who, by moral exhortation, keep the masses informed o his political and educational endeavors. … the government constitutes the moral authority of the empire. … it is the ruler’s obligation, both to his own family and to the people as a whole, that the empire be governed by ‘good and able” ministers and officers’326. The relationship with the state was based on trust modelled after the family, in which the Emperor and his officials were considered senior figures. Scholars base on that the conclusion that there was less concern with sharply identifying public and private spheres, or jealously guarding individual prerogatives against a threatening governmental presence. The relationship between the individual and the state was based on ‘an enormous, fiduciary-like obligation to those over whom they exercised that power. Failure to carry on this obligation represented a moral deficiency of the first order that might well lead those in power to lose their elevated position. Obviously, this idealized vision of the relationship between individuals and the state often was not borne out in practice. Indeed, at times persons in power both in the state and the family used it to secure their dominance over others’.327 For long time, and

even now, the officials and bureaucrats were called 父母官 fumuguan, ‘father-mother

official’.

The privileged ways to build a society based on trust are considered to be self-

cultivation and rituals, or ritual practice (li 礼). According to Tu Weiming the ritual

practices ‘are occasions to rehearse symbolically the attitudes various individuals should adopt toward one another’328. Human interactions may be defined ritual in promises, commitments, excuses, pleas, compliments, pacts, but not strictly speaking, ‘rights’. ‘In acquiring shared meanings embodied in ritual practice through a process of education and socialization, participants acquire certain ways of feeling and thinking. They also acquire self discipline and a disposition for harmony, which comes from appreciating the value of harmony that they have experienced. The sensitivity and understanding toward other participants engendered in achieving harmony in recurrent occasion of daily living, creates the training environment for achieving harmony in more problematic arenas of life’329. In such a society the boundaries between private and public are not radically separated realms; they form a complementary polarity. Therefore its boundaries shift according to circumstances. This society is fundamentally not antagonistic to the state and boundaries between organizations are fluid. The contemporary advocates of a Confucian society hold that

326 Ivi: 63, emphasis added.

327 Alford (1970: 951).

328 Tan (2003: 210).

329 Ivi: 211.

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‘[t]he general tendency to rely too much on the government and its legislative powers to solve social problems and on the court to resolve social conflicts replaces interpersonal trust with trust in the legal system. … Ultimately, the trustworthiness of a system depends on the trustworthiness of those who operates in it; over-reliance on the legal system ironically undermines the very basis of its trustworthiness’330. For example, Kim-chong Chong affirms that the two models of morality as a bargaining process between individuals in an uneasy relation of compromise, so as to avoid being harmed on one side, and that of generosity toward friends, moral concern, trustworthiness, and bringing peace to the old and cherishing the young, on the other side, are both generalizations. The second is the Confucian model who indicates a self defined in terms of social orientations ‘through a process of articulating and sharing aims and aspirations, establishing oneself upon the rites commitment toward and identification with the ideal of ren’331.

The ideal of a fiduciary community presents limitations and shortcomings. An obvious one is that it appears not to be suitable for regulating complex societies in which the interactions are mainly between strangers. Trust recalls a familiar or friendship tie and personal knowledge or at least confidence upon the possibility to rely on the person in charge. Moreover, as noted by a Chinese scholar, the Confucian doctrine of benevolent government has proved insufficient to guarantee the rights of the subjects to public authority, and the population was instructed more to preserve social harmony than to assert their own rights332.

However, some have tried to accommodate Confucian moral idea of society and person with the notion of human rights. For example, according to Sullivan, modern human rights and the principle of equality could well be framed in the context of a community of trust ‘as the moral basis for a new kind of trust and reciprocity, themes deeply resonant with the Confucian tradition’333. Cohen instead suggests to consider human rights as a condition for the fulfilment of the fundamental duties of the person, which are at the core of the moral realization of the person: ‘The notions of persons standing in relations and bearing duties associated with positions in those relations remain fundamental: rights are understood to flow from the demands of those duties and an account of the worth of human beings that is tied to their fulfilling social responsibilities. This ethical outlook can be interpreted as providing support for an independently elaborated conception of human rights—developed autonomously, as an account of what is owed to members—without relying on the idea that persons are fundamentally choosers of their aims, or that obligations are self-imposed, or that

330 Tan (2003: 208-209).

331 Chong, (2003: 280).

332 Chang (1998: 77).

333 “The “practices which sacrifice the individual to the collectivity” not simply to liberate the individual but “to renew our national and communal solidarity”“. Sullivan (2007: 202).

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individuals have special worth or dignity because they posses a capacity to formulate and revise their aims’334.

9. Is the idea of luck absent in Chinese morality?

Martha Nussbaum advances the hypothesis of a ‘missing thought’ in China’s moral tradition, in particular the idea that ‘many of the most important distinctions among human beings are the work of fortune, unconnected to human desert’335. As she notes, the very idea that wealth, richness, beauty, glory, misfortune, disgrace and so on, including sex and race, are accidents, and that human beings are truly equal exactly because what distinguishes them form the other is a mere accident despite which we all are the same, and also that the sort may suddenly turn a wealthy into a disadvantaged person (and this can happen to any person), grounds the core meaning of being equals336. However, it is difficult to see distinction of rank, status, gender and even sex as merely accidental if the structure of society is based on that distinctions337. Martha Nussbaum conjectures that such thoughts were not supported or affirmed in the public discourse of Chinese society, and certainly not in the Confucian philosophical tradition. Instead, a thought about the appropriateness and fixity of hierarchy is put forward, and this thought, like feudal ideas about rank, enters in, to impede the perception of a fully common humanity and the public articulation of the missing thought about fortunes’. Nussbaum then asks experts in Chinese philosophy to confirm or critique her conjectures. She is inclined to regard this as a profound cultural difference. However, she concludes, the ‘missing thought’ might have been introduced by the Marxist philosophy. In fact, Marx’s work ‘truly commits to the equalizing of fortunes grounded upon the consciousness of the vulnerability of human being’. Nussbaum also notes that the ideas in Marx thinking are articulated in a way that might possibly have been more easily assimilated by Chinese traditions because the basic entities that change places are fixed in hierarchical classes: ‘the idea that the individual fortune fluctuate independently of class membership is not so strikingly evident. Could it be that for this reason Marxian class thinking was more sympathetic place to think about human equality than the thought of the Enlightenment?’338.

It is true that the difference in ethical codes, called ‘dual standard’ one for the junzi (or sage, wise person) and another for the xiao ren (small man) reflected a social background; it arose from a two class society. Yang affirms that ‘[i]n early Chou times, the person who had a noble status and the person who had gentlemanly virtue

334 Cohen (2004: 206).

335 Nussbaum (2003: 9).

336 She also notes that ‘John Rawls’s A Theory of Justice is, we might say, built entirely around the missing thought – the idea begin to imagine a world in which the contingency of birth, rank, and wealth do not systematically maim and deform human life-chances.’ The knowledge that, but for fate, we might have been each other’’ founds America, and this is ‘the standard combination of a golden-rule appeal to imagination with the missing thought about the vicissitudes of fortune – all in the service of trying to rally people to support some type of social welfare program’. Ivi: 12.337 Ivi: 15.

338 Ivi: 13-14.

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were believed to be normally if not invariably identical. The same identification was applied for the commoner and the small man’339. According to Yang, the dual standard of ethics was later applied not to a two-class society but kept its significance because it marked the fundamental distinction between literati and common men. Although the argument purported by Yang could be a response to Martha Nussbaum’s hypothesis, classical Chinese society was certainly not dynamic. Excellent students in China had the possibility to change their and their descendant destinies by becoming government officials, and exams were open to everyone. But to afford an education it was necessary to invest money and therefore not all people could afford it. Therefore Chinese traditional society may be properly regarded as a static society. However, the idea of social mobility is a relatively recent achievement, of modern societies.

The missing thought individuated by Martha Nussbaum may indeed be not completely missing. A thinker of later Han times, Wang Ch’ung, observed that ‘In conducting affairs men may be either talented or stupid, but when it comes to calamity or good fortune, there are some who are lucky and some who are unlucky. The things they do may be right or wrong, but whether they meet with reward or punishment depends on chance. … There are many persons who wish to display their loyalty (to a ruler), yet he rewards some and punishes others; there are many persons who wish to do him benefit, yet he trusts some and distrust others. Those who him rewards and trusts are not necessary the true ones, nor are those whom he punishes and distrust necessarily false. It is simply that he rewarded and trusted ones are lucky, while those who are punished and distrusted are unlucky’340. Even if it did not acquire the status of a commonly accepted idea upon which society was based, the missing thought was not completely missing.

It is certain that equality in moral status was recognized not only by Confucius, but also buy the idealistic strand of his followers, developed by Mencius and opposed to the realistic one initiated by Xunzi. The moral status of persons was considered equal regardless the position they occupied in the social hierarchy. What differentiated two persons was the capacity of moral cultivation. This poses the responsibility for personal growth and for the status possessed by anyone on the personal behaviour and personal effort, maybe failing to consider eventual personal limitations both physical and intellectual as something which may infringe upon the process of self development and which is therefore important to weight and consider.

339 Yang (1957: 307).

340 Ivi: 298.

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CHAPTER IV

THE EVOLUTION OF LAW AND RIGHTS DUE TO DOMESTIC FACTORS

Introduction

The view that the legalization of human rights in China is due to the influence of external factors is widely held in the literature. In order to access the World Trade Organization, the Chinese government had to impose rules of transparency in law and administration; promoted wide spreading acceptance of the principle of legality; reviewed and modified substantially part of the existing laws and regulations; introduced new legal institutions (such as contracts, property, subjective rights). Moreover, in order to be recognized as a responsible power by the international community the government attributed human rights to its citizens, and at the same time abrogated to some extent contradictory provisions341. The process of adoption of human rights norms has been explained using the paradigm of selective adaptation342 of international standards to local normative practices, or as a process of learning, called ‘internationalization’.

Bearing in mind the results of the analysis articulated so far, the following discussion aims at investigating the domestic factors that may have influenced the trajectory of change of the human rights discourse in China, as an effect of the intra-systemic shift343 from planned economy to market economy.

The decision to embrace the road towards market economy was taken by Deng Xiaoping in 1978. In the uncertain and unstable political circumstances after Mao’s death in 1976, the capacity of the Chinese Communist party (CCP) to drive the country towards a stable economic growth represented a condition for the CCP to perpetuate and maintain the power. The reform of the legal system was initiated in order to support market reforms, to attract foreign investment and to boost the economy344.

Economic and legal reforms have been consciously guided and carried on by Chinese leadership. In general, changes in economy have been causally associated in various ways to institutional transitions to democratic systems of government, including a higher degree of protection for human rights. This assumption has not been verified in China. On the contrary, economic growth, accelerated enormously by the adoption of a quasi-capitalist system, seems to have reinforced the authoritarian

341 See among others Choukroune, Leïla (2005-2006); Choukroune & Oates (2002); Clarke (2003a); Hsu & Arner (2007); Wang (2004); Yang & Cui (2009); Chiu (1989).342 Potter (2003; 2006a).

343 Weiss (2007).

344 Liu, Yazhou (2007: 90–98).

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government. In the following pages it will be investigated if and to what extent the consciously and willingly planned reforms, carried on within the tight political control of the single party and seized to maintain it, might be apt to initiate a profound dynamic of change which may eventually lead to an institutional change, however not necessarily towards a democratic form of government. The aim is not to describe extensively the reforms themselves but rather, taking the knowledge of their contents as presupposed, to reason on the relationship between the new circumstances generated by the socialist market economy, law and rights in the context of Chinese economy. Attention will be dedicated in particular to the salient effects these reforms appear to have generated on the relationships between constitutional organs and in the conception of law, and which may eventually modify the conception or the actual protection of human rights.

In particular, it will be investigated if and to what extent the different understanding of the role and function of the law and the actual dynamic of institutional practice have increased or are potentially able to increase the protection of human rights.

These changes of course are affected by the force which has generated them: the quasi-capitalist market system. The classic subjective rights, related to the protection of patrimony, property, possession and whose functioning is inspired and oriented to the circulation and creation of wealth have been recognized and seem to be guaranteed more than other rights such as personal freedoms, for example, however formally attributed to the citizens according to the Constitution.

If it was verified that first, the actual protection of rights in contemporary China only depends on the extent they are necessary to boost the economy (for example protection assigned to classic subjective rights modelled upon the right of property) and second, their justification mainly consists of pragmatic reasons related to the functioning of the market, then it would be legitimate to raise the question if the triumph of rights in the contemporary world is ultimately due to the triumph of the market345.

Beside the changes due to the shift to a capitalist-like market economy, a fundamental domestic factor related to the path of evolution of the idea of human rights in China is the attitude towards the concepts of the past domestic legal tradition determined by the encounter between the Western powers and China in the XIX century. The next two paragraphs aim at outlining the general frame in which to insert the discussion of this chapter and the next one about Chinese contemporary jurisprudence.

1. The ‘crisis of Chinese consciousness’ and the Chinese legal modernization.

The introduction of the idea of human rights in the Chinese intellectual environment must be framed in the broader context of the meeting between the Western and Chinese culture due to the colonial policy of the Western powers at the

345 See Chen (2006: 487-516).

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end of the XIX century, and the consequences it has generated for the self-perception of the Chinese identity in general and of the legal tradition in particular346.

In the XX century the Chinese cultural identity was rejected by the Chinese intellectuals, generating what has been called ‘the crisis of Chinese consciousness’347. The confrontation with the invading power generated a feeling of inferiority and inadequacy, aggravate by the sense of defeat due to the loss of cities to the colonial powers. For this reason the Chinese cultural tradition has been contested by Chinese intellectuals since 1890s348. The break that the confrontation with Western powers caused to Chinese self-perception was deep. The elements perceived as constituting the Chinese identity were deeply contested. At this crossroad, the intellectuals elaborated three different alternatives pivoted on the notions of ‘essence’ and ‘means’. A first group of scholars, purporting ‘whole Westernization’, deemed necessary to abandon the Chinese means and essence in view of a wholesale Western-oriented renovation. A second group of scholars, convinced of the superiority of the Western powers, but qualifying it as just a technical superiority, while recognizing a moral superiority to Chinese civilization, purported the theory of Chinese ends by Western means: the Chinese ‘essence’ had to be enacted by using Western ‘means’. Some other scholars minimizing the contraposition between Western and Chinese essence and means individuated an opposition only between ancient and modern ideas and methods: ‘Some people say that Western culture is a motor car culture … But motor cars did not exist in the West originally [and only came into existence at a certain point in history.] Having motor cars and not having motor cars is a distinction between the ancient and the modern, and not a distinction between China and the West’349.

The May Fourth movement of the 1919 represents the icon of this turning point in the Chinese post-traditional intellectual history. It was a radical iconoclastic movement revolting against the traditional Chinese cultural heritage and committed towards its entire rejection. The scope and depth of this anti-traditionalism have been defined as ‘probably unique in modern history in general’350. The May Fourth movement intellectuals of 1919351 (whose reading contributed to the formation of Mao Tzedong’s thought) were advocates of a whole Westernization: a modern and political

346 For a study of the early Chinese discourse about rights and human rights see Svensson (2002); Angle (2000: 241-261; 2002); Angle & Weatherley (2000: 719-720); Angle & Svensson (2001); Weatherley (1999).347 In this expression the Chinese intellectual are represented, in traditional terms, as the ‘consciousness’ of the country. 348 Lin Yu-Sheng (1979: 152).

349 Chen (2006: 467). According to Chen human rights are an invention of modernity. Chen terms the rise and globalization of human rights as ‘a sign of humanity’s moral progress, a quantum leap in the moral consciousness of humankind’ Ivi: 488. In the book theory and practice of human rights in various Asian jurisdictions including China are compared and contrasted and they are further compared and contrasted with that in France EU and USA, considered as representative Western jurisdictions. 350 Lin Yu-Sheng (1979: 6).

351 Gu (1999: 389-431).

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change could only be realized on the premises of a ‘total rejection’352 of the Chinese intellectual past. This was due to their understanding of cultures as organismic wholes. The component parts of both Chinese and Western cultures were intended to be meaningless without the whole, therefore, if the Western culture, or even just single elements of it, was considered superior to the Chinese culture, the only possible option was to reject wholesale Chinese culture to adopt the Western culture, without examining substantive aspect of both which were understood as meaningless if separated from the whole353. Therefore, the problems generated by the meeting between the Chinese and Western culture were due to the difficulties of finding a framework for integrating the intellectually meaningful parts from the old culture with the new ideas and values from the West. The wholesale iconoclastic rejection of the totality of Chinese culture theoretically implied a totalistic-like acceptation of Western culture which was theoretically naive and practically not feasible. Moreover, the May Fourth movement did not provide the resources to the problems it posed in itself. The dilemma was that the rejection of Chinese tradition made its evolution into modernity all but impossible, yet, it seemed that only through such a transformation the ‘crisis of culture’ in China could be, relatively speaking, settled. The rejection of Chinese culture was not only determined by the perception of the overwhelming superiority of Western powers which implied a judgment (not strictly and logically consequential) of their moral superiority, but also by the recognition of the obsolete character of some aspects of Chinese tradition and of the fundamental injustice of some traditional ideas and practices. The knowledge of injustice, wrongs and sufferings generated the Chinese intellectuals’ rejection of the Chinese tradition prevented its creative transformation. Yan, Jiang and many others consider the evolution since 1919 as a ‘Westernization’ of material and institutional aspects (the lifestyle, the adoption of law and so on) and maintenance of ‘traditional’ conceptions (for example respect for parents expressed through the virtue of filial piety).

The rejection of Chinese culture was also the goal of the Cultural Revolution (1966-1977)354, supported by the illusion of the full freedom and the ‘sense of infinite possibility’355 perceived as a potential result once the entire cultural past was cancelled. This exacerbated the problems creating a legal vacuum that neither helped the creative response in Chinese own cultural terms to the challenges of modernity nor could completely eliminate the practices of the past, which were judged as ‘wrong’ and ‘unjust’. What was missing was a profound substantive approach to the

352 Lin Yu-Sheng (1979: 9).

353 Lin Yu-Sheng (1979: 153-154).

354 See generally Cheek (2002). Mao Tzedong was ‘hostile to both Confucianism and liberalism because he saw in liberalism and Confucianism the common trait that thy both belonged to the same discredited past, not because they shared anything of genuine value.’ Confucianism and liberalism had in common ‘the same traits of tolerance, moderation and compromise which he attacked in his essay “Combat Liberalism”.’ This image of China was given to Mao by the opinion that Marx and Stalin had of China: ‘hopelessly retrograde and without any capacity of its own for renewal or fundamental reform.’ De Bary (1983: 93). Maoist ideology is a synthesis between Marxism, as understood by Leninism, and Chinese culture. See Metzger (1996) and Collotti, Pischel, Enrica (1979).355 Liu, Yü-Sheng (1979: 159).

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specificity of what was perceived as a problem generated by Chinese culture or traditional practices, to provide creative but realistic perspectives of change.

At the beginning of XX the Qing dynasty initiated a process of ‘modernization’356. Modernizing was considered to be the only way to save China from being overcome by Western invading powers. In the area of law, in particular, the confrontation with the West caused a deep internal reflection upon the legal tradition. Some Western legal ideas started constituting for Chinese intellectuals a new criterion to evaluate their own tradition357. He Weifang358 argues that the status of Chinese legal system indirectly contributed to foment the conflict, because, due to the irrational provisions it contained, the disputes between Westerners and Chinese were not dealt with fairly. In his opinion, the military clashes were a direct consequence of the aggressive Western colonial policy, but the inadequacies of Chinese legal system did not contribute to reduce them359. The confrontation with Western powers throughout the course of XIX century ended with the defeat of China and the imposition of the ‘humiliating treaties’360. The legal backwardness was sought as one of the causes of the defeats and the loss of several cities to the Western occupying powers. This caused the urge for a full scale legal reform. The reform resulted in the implementation of a new civil code adopted at the very beginning of the XX century which drew on Western models361, but it was not adequate to cope with social changes. The soon to come collapse of the Qing dynasty would have brought the efforts already deployed in a new codification into the void.

Legal modernization has been regarded as a tremendous change, which can only be compared to the process of ‘confucianization of law’ described above, for the momentous change it brought to the practice of law, and it is a still ongoing

356 On recent insight on Chinese model of modern development see generally Cao, Tianyu (2005).

357 Liu, Yü-Sheng (1979: 153).

358 He is a prominent Chinese legal theorist, who has been ostracized for manifesting his ideas of law conflicting with those of the CCP. For an account of the legal treatment of foreigners see Edwards (1980).359 See He Weifang (1999: 91-100).

360 The Opium war and its aftermath are used by the CCP rhetoric as a ‘very deliberate celebration of a national insecurity. By insisting on the commemoration of China’s national humiliation, the victimization and the induction of a feeling of defeat, it is also built up a feeling of revenge and redemption towards the Western powers. The strategy of victimization serves the purposes of the CCP of nurturing a nationalist feeling, and gaining support from the citizens. China’s nationalism has been built up through celebrating the glories of Chinese civilization but also commemorating China’s weakness. This negative image comes out most directly in the discourse of China’s Century of National Humiliation (Bainian guochi)’ Humiliation symbolizes both the insecurities in the technological and economic field and the moral insecurities. According to the tradition (Liji: humiliate a thing generates the reaction) the leverage of humiliation is used to activate a positive reaction. ‘In other words, the narrative of national salvation depends upon national humiliation; the narrative of national security depends upon national insecurity.’ Callahan (2004: 202) Therefore, the use of historiography that heavily stresses episodes of humiliation serves the purpose of building public adherence to potentially contestable politics such as the determinacy of the CCP to get back lost territories (Taiwan, Tibet, for instance), and to build confidence and support in the CCP governance itself by showing its capacity to guide economic development unlike previous corrupt governments. As the view of narrative approach to history explains, the historical memory of humiliation shapes both domestic and international policy. Ivi: 199.361 Mainly the Greman civil code through the Japanese code. Lau, Yong (2009: 11).

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process362. Albert Chen363 describes contemporary legal modernization in China as an ‘exciting legal revolution that raises interesting theoretical issues’364. The modernizing process consists of a critical, active absorption and a selective adaptation365 of models and legal institutions apprehended from Western countries. Some contemporary scholars advocate the adoption of the values of enlightenment and the critical rediscovering of Chinese legal tradition366. Moreover, beside a more technical imitation of formal legal institutions, legal modernization includes, in the opinion of many scholars367 the reception and development of the theory and the practice of human rights. The notion of ‘human rights’ is considered a Western importation in Chinese intellectual environment368. The idea that certain powers, immunities, rights and liberties held by individuals, which all the other subjects (either public or private) must respect, is not present in the Chinese intellectual elaboration. Certainly the idea of rights is neither incompatible nor incomparable to legal and political notions elaborated by some of the scholars belonging to the classical Chinese doctrines or schools of thought.

The relevant question turns then to be the extent to which the Western or alternatively the Chinese tradition has been considered normatively relevant in the Chinese speculation about human rights. Angle holds that the two discourses have been intertwined in the within China discussion and that the Chinese discourse of rights possesses its own distinctiveness369. However, Angle’s view can be regarded as an exception, because the connections that have been generally drawn between rights discourse and native tradition have tended to be of a negative, restricting kind. As already mentioned, Chinese intellectual change was fostered by ‘deep concern with the plight of China’370, and by the sense that the Western powers had better – more successful – political and moral values. However, some scholars371 highlight that the Chinese tradition also played a positive role in motivating thinkers to develop the

concepts of rights (quanli 权利 ). They argue that the intellectuals in the early XX

362 Gellhorn (1987).

363 Albert Chen is professor of law at the Hong Kong University.

364 Chen (2004: 228).

365 Potter (2006: 389-410).

366 This opinion was expressed by Cheng Liao Yuan in his lesson of legal philosophy at Chongqing University. A.A. 2009/2010.367 Chen, (2006: 489). Cheng Liao Yuan, opinion expressed in conversation with the author.

368 Literature abounds on the topic: Svensson (2002); Angle (2002). The claim that human rights are a sophisticated instrument of a new fashioned Western imperialism is raised by both Chinese and Western scholars with different outcomes. Zolo (2004³: 89).369 Angle (2002: 205-249).

370 Nathan (1985).

371 See Angle & Sevensson (2001) and Angle (2002).

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Century based their construction of the idea of rights upon the line of thinking and the theoretical structure of neo-Confucian thinkers of the XIV, XV and XVI centuries.

Nathan notes that Chinese intellectuals in early part of the XX century who argued for democratization held that the problem in Chinese modernization stemmed from the ‘systematic overconcentration of power’ and its abuse372.

The commitment to modernization has been associated with the creation of an intellectual framework for rights by Chinese intellectuals (Cheng, Xu Liangying, and so on), and the provision and protection of rights has been considered a fundamental part of this process.

2. Some insights in the causes determining failure or success of legal transplant in terms of law compliance.

Comparative legal scholarship uses the notion of ‘legal transplant’ to refer to legal institutions, forms, legal guarantees or rules which were developed, elaborated within the legal system of a country, and which are then adopted, reproduced, imitated, in the context of other legal systems, usually by the means of the promulgation and enactment of legislation. The success and failure of transplants has been studied by comparative scholars, and it certainly depends, to a large extent, from the characteristics of the receiving context.

There are several ways to explain the success of failure of legal transplants, particularly in terms of failure in law compliance, in the Chinese environment373. First of all, if law is better understood as a social practice rather than a whole of legal texts, as something that is acted by a community of people, then it is the result of the interaction of the participants to the practice374. The meaning of the rules is determined by the practice of the community375. Therefore, the interpretation of a transplanted institution may change as the community of practice changes. Also, the practice cannot be realized only by the means of coercion, even if coercion can constitute the exclusive reason to comply for certain rules and for certain persons.

The second reason is highlighted by adopting a pragmatically oriented approach to legal interpretation376. The use of legal texts which are constituted by a mixture of ordinary and technical language is determined by their interpretation. The process of interpretation is a process of attribution of meaning. In this process the interaction between text and the context and the interplay of ‘meaning’ and ‘reference’ in the interpretive practice result in the actual meaning attributed to a disposition, meaning

372 Edwards & Henkin & Nathan (1986).

373 The failure in compliance with international norms and standards or with legal models adopted by the legislator can be explained in the light of the process of selective adaptation elaborated by Potter (See Potter 2006). 374 See generally: Brandom (2000); Postema (2007); Viola (1990).

375 This argument is premised upon the idea of law as a social practice and of rules as describing patterns of commitments elaborated by Brandom, see R. Brandom (2000).376 Villa (2010).

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which, in a pragmatically oriented perspective, is neither created nor discovered, but it is rather a process in which the two are mixed together. Therefore, the adoption of a legal jargon – through the imitation of the wording of the prescription of legal codes from a certain country – and of certain specific rules, that is, the adoption of a certain text, does not guarantee the understanding and the enactment of the law according the same meaning which is attributed to the text in the country of origin. The context and the reference, which are different in the two countries (including the whole legal system, the whole techniques used for guiding the process of legal interpretation, the structure of legal reasoning its arguments and meta-arguments, and so on), determine the difference in meaning as well. Changing the meaning it may for example happen that certain behaviour could be interpreted as failure in compliance from an external perspective while from an internal perspective may be considered as abiding by the relevant rules.

A third argument is that the capacity of a rule to guide behaviour depends upon the fact that the rule ‘makes sense’ to the person to which it is addressed377. This argument implies that there is a cognitive dimension in the practice of law that is not exhausted by unreflective compliance378 to the formal legal provisions. The imitation of the most sophisticated texts by Chinese government may have caused a failure in compliance by the majority of the population due to the lack of understanding of the relevant prescriptions contained in the legal texts.

A fourth argument is the stated by Lau and Young in the following terms ‘the reason why compliance is so difficult to obtain is that the values embedded in the law are at odds with the values of the Chinese environment’. The implicit premise here is that no law is value free, and if a law accords to the system of value of the people who are ruled by the law, then it will be more spontaneously followed. The argument of Lau and Yong holds that the laws that China adopted with the aim to support a fast and ordered economic development are imbued with values coming from the legal tradition of the country where the laws came from, that is, the Western legal tradition, since, they assume, the values of Western legal tradition are somewhat at odds with Chinese value, this causes a failure in compliance.

3. The role of market reform for the recognition and protection of rights.

The present part of this chapter, including the following paragraphs, attempts to answer the following question:

Did (and to what extent) the shift to ‘socialist market economy’ mark a progress in the Chinese rights legal practice?

First let’s state some clarifications about the terms used in the question above. The expression ‘human rights legal practice’ refers to the provision and protection of rights. There is a difference between ‘rights’ and ‘human rights’. Subjective rights

377 See Taylor (1990).

378 Postema (2007).

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constitute the category of classic rights, generally having patrimonial content379. Human rights, instead, regard the protection of the person. The expression ‘fundamental rights and freedoms’ indicates the rights enshrined in the Constitution in a constitutional legal system380.

The characteristics of the Chinese socialist market economy are a mixture of capitalism and socialism. From 1978 onward a progressive transition has been carried on from an entirely planned economy to an economy that in 1992 has been defined ‘socialist market economy’, or multi-sectorial or of mixed regime (socialism and market economy)381. There is not agreement upon the definition of the expression ‘socialist market economy’382 and its meaning, for at least two reasons: firstly, the meaning of the expression is controversial in the same within China discussion; secondly, the set of institutions, their functioning, the rules and principles that are supposed to govern the socialist market economy as they developed in China are unprecedented and also their implementation is relatively recent. In one of its meaning socialism, when referred to an economic system implies the following characteristics: state ownership of the means of production and control over investment throughout the economy; a more equal distribution of income and wealth than it is typically found in capitalism (this entails the problem of the criteria of distribution); and democratic election of government officials responsible for economic decisions. The government planning of the entire economy and not just

379 ‘Subjective rigth’ is generically “una pretesa munita di tutela giuridica, restando da precisare quale sia il tipo di pretesa e quali siano i mezzi di tutela corrispondenti” Russo. Subjective rights, according to the civil law doctrine are created by the law or by the will of the subjects through the contract (actualizing their ‘private autonomy’) or by the two combined. The content of the claim can be specified because subjective right has a polisemic meaning. Subjective rights (either considered as protected interests, in the line of thought that can be tracked back to Jhering; or rather understood as dominion of the will, with Windshield) can be created, extinguished, transferred, modified. For example they are generally subject to the particular cause of extinction called prescription. Subjective rights generally have patrimonial character and the person entitle of the right can ‘dispose’ of the right. This peculiar characteristic of the rights is functional to the circulation of wealth. Classic subjective rights are considered by Windshield, among others, as a distinctively civil law concept. The protection of the person (the meaning of the term will not be discussed here) is only indirectly ensured by the legal protection of subjective rights. The theoretical attempts to link the protection of the qualities of the person to the category of subjective rights have failed. The qualities of the person have been protected through the personal rights which are different from the subjective rights in that they are not subject to prescription and cannot be disposed of legally. The constitutional provision of fundamental rights and freedoms of the individual has provided the instrument for the protection of the person in a dynamic way, that is, in a way that makes possible the attribution of legal protection to human interests. The concept of right itself is now understood as a dynamic rather than a static notion (See Celano 2001). What the relevant interest are and how are to be justified is a problem debated by the contemporary world jurisprudence.380 See the distinction made by Ferrajoli in Ferrajoli & Vitale & Baccelli (2008).

381 It is debated if Chinese socialist market economy conforms or not to the characteristics of a capitalist market. Alice Ehr-Soon Tay considers it nor pure. Even if it is more efficient in allocating resources than the planned economic system, in the socialist market economy the role of the state is still very strong because it controls and guides the macro-adjustment of the economy. Ehr-Soon Tay (2005); see also Dernberger (1991); Diamond, Larry (2003: 319–331).382 The establishment of this system in China is due to the need to realize economic development. However, economic development is not a synonym of market economy. Moreover, it must be stated clearly that economic development is not necessarily generated by a particular system such as the capitalist market economy. To a certain extent economic development is not dependent on the economic model adopted. In other words, economic growth may occur either in the context of an economic system based on capitalist market or in other systems, including a planned economy. The term ‘market economy system’ must be also distinguished from the expression ‘economic liberalization’, although the two terms are compatible.

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investment (government planning of quantity and quality of goods to be produced, methods of production, prices of the goods) is the fourth feature which has often been added to the above-mentioned three characteristics. If the economic system includes this fourth feature, it is referred to as ‘central-planning socialism’383.

Linda Weiss defines the shift from planned to socialist market economy an ‘intra-systemic’ passage rather than a change from a structure guided by the state to a structure guided by the market. The economy is still guided by the state, but in a system in which the tasks have been multiplied and so the ways to satisfy those tasks. The state has promoted reinforced and maintained a social infrastructure, that is, a dense structure to organize industrial networks, trusts, commercial associations and other agencies of the same kind to pursue those strategies on favour of a certain social sector384. While reducing direct control upon the economy, the State kept the role to guide (zhidao), support and control (jiandu) individual economy through administrative measures (art 11. Constitution of PRC)385. With the 1998 amendment the right of property was enshrined in the Constitution386 (art. 13). The individual enterprises (getihu) and individual management (getijingying) after the Constitutional amendment of 1999 were allowed to play a supplementary role in Chinese economy according the theory of planning economy with market adjustment, while they were considered ‘capitalist evil’ before. The 81% of the productive activities today is not carried on by the state owned enterprises but by private owned enterprises.

The reduction of the direct control of the state upon the economy implies the straddle between the subject who poses the laws and the subject of the law, between the ruler and the ruled. In fact, in the socialist planned economy system, the holder of the lawmaking power and regulative power in relation to the economic activity coincided with the subject of these laws and regulation, represented by the state387. The structure of the state was also coincident with the structure of the single party. The party structure and the state structure have been separated in 2000, in a process called the ‘basic separation’ between the state and the party.

The new reality of the socialist market economy has produced two interconnected effects. Firstly, it has made of the individual a legal subject; secondly, it created an area in which the individual can enjoy freedom of economic initiative free from sate direct intervention or intrusion. The 1981 Contract Law has finally attributed a fundamental role to the will of the parties. The relevance of individual will or individual autonomy was legally very modest in the planned economy system. Now

383 This definition is from the oxford dictionary of philosophy.

384 Carty (2007: 204).

385 See, Rinella & Piccinini (2010).

386 Cardinale (2010).

387 This is usually supported by an ideology that assumes the coincidence of the interests of the governing and the governed.

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the legal subjects, including also ‘legal persons ( 法人 faren), regardless of their

public, collective or private nature, and of their political and social characteristics’, are legally admitted to ‘coexist on equal basis and in a single normative system, with a plurality of different (and competing) legal subjects’388. The benefits of economic activity, once almost entirely managed and reallocated by the state, in the new context of market economy (even if it is not a pure one) remain, at least partially, at the disposal of the person who obtained them. Who actively engages in business possesses some interests which could be in conflict with that of other social categories, for example the category of employers and that of the employee, and the law has the role of determining the balance between the interests389. Even if this may constitute the first step towards the legalization and the guarantee of the interests of the subjects, however, the recognition to the subject of rights of an importance independent of and separated from the community of which the subject is a part, still appears to be problematic390 (see chapter V below). The introduction of subjective rights391 was due to economic reasons, to permit the functioning of the market. Nevertheless, in the following years the provision of rights spread in other contiguous areas of the legal system, as the Chinese legislator acquired confidence in the usage of the technique of law392 (Civil law, mainly at first, with the 1993 Contract Law, the Property Law 2007, then Administrative Law and Labour Law).

The above description highlights that the civil and commercial areas have been more influenced by economic factors rather than indigenous cultural factors. This run counters the idea that law is mostly influenced by cultural factors393. But the same has not occurred in the area of constitutional law.

4. The constitutional provision of rights394.

388 Cavalieri (1999).

389 Interestingly the laws, for example regulating the ending of the relationship between employer and employee, can be understood as a compromise between the opposed needs of the parties. For example the law approved in 2010 prohibits firing the employee without a just reason, however allows downgrading of an employee to the trainee level.390 Xia Yong (2007: 319).

391 Here should be stressed the distinction between fundamental rights and freedom and subjective rights and should be specified the usage of the two terms in the present paragraph.392 Cavalieri (2007: 191-192).

393 See Solinger (1994).

394 See generally Kent (1993); Bell (1999); Cai, Dingjian (1995; 2005); Catá Backer, Larry (2006-2007); Chen, Albert Hung-yee (1986; 2004b); Chen, Jianfu (2004a); Cohen, Jerome A. (1978); Dowdle, Michael William (1997; 2003); Gillespie & Nicholson (2005); Groppi (2006); Groppi & Piergigli & Rinella (2008) Killion (2005); Kim, Chin (1977-1978); Lin, Feng (2000); Mo, Jihong (2009); Peerennboom (2006b); Weng, Byron (1982); Weng & Wang (2005); Wong, Kam C. (2006).

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The notion of ‘human rights’, as it has been discussed above, is considered a Western importation in Chinese intellectual environment395.

From the foundation in 1949 to date, the People’s Republic of China adopted five different constitutional texts. The Constitution in force now was issued in 1982. The first constitutional document of the PRC, the Common Programme, in 1949, enshrined a limited set of rights. The Constitution of 1954 contained a higher number of provisions concerning rights, but during the ten years of legal nihilism (from 1966 to 1976) individual rights and liberties were abolished by law, denied and severely violated in practice. The 1982 Constitution consolidates and enriches the formal constitutional provision of rights with a richer list compared to the others396. The 2004 amendment meaningfully added to article 33 that ‘the State protects and guarantees human rights’.

The differences of the prevailing conception and the effective degree of protection of rights and liberties of the individual in China do not appear significant if the analysis is limited to codes, legal dispositions or constitutional provisions. As a matter of fact, the legislation concerning rights has been inspired and modelled upon the disposition of constitutional democracies. The differences indicating the peculiarity of Chinese interpretation of the nature and significance of rights are therefore to be found in the non-explicit norms that lie underneath these official legal dispositions and in the implicit principles which drive their interpretation and application. They are also to be found in the dynamic of relationships between institutional organs, political actors and legal experts.

Many scholars have argued the Chinese state to have issued a formal Constitution in which rights are attributed to the citizens, without accepting the values of the doctrine of constitutionalism. The Chinese state has been defined as a state having a ‘Constitution without constitutionalism’397. Constitutionalism has been defined in many ways. The core contents of this doctrine are the government by the people coupled with the principle that the authority of government derives from and is limited by a body of fundamental law. For our purposes a constitutional state could be understood as a legal and political system pivoted on and aimed at the protection of fundamental rights and liberties of its subjects. Constitutionalism can also be defined as a dynamic political and historical process rather than as a static body of thought that was laid down in the eighteenth century’, consequently, a political organization is constitutional to the extent that it “contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those

395 Literature abounds on the topic: Svensson (2002); Angle (2002). The claim that human rights are a sophisticated instrument of a new fashioned Western imperialism is raised by both Chinese and Western scholars with different outcomes. Zolo (2004³: 89).396 For a general analysis and classification of the rights in the Chinese 1982 Constitution see: Rinella (2006: 113-122).397 Ehr-Soon Tay (2003: 683-739); Groppi (2006); De Vergottini (1993).

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that may be in the minority”398. The institutional impediments to a full protection of rights on the Chinese constitutional system are certainly the lack of authoritativeness, independence and autonomy of courts and judges399, the absence of a real democratic legitimation of people’s representatives400, the lack of a system of judicial review of legislation401. The above listed elements are already well known. Therefore, it seems more interesting to ask whether or not an ongoing process of evolution towards the values purported by constitutionalism is operating and what forces are leading it.

The following paragraph briefly examines the question of the degree of autonomy of Chinese law as preliminary discussion for the understanding of the specific issue of rights and human rights. In fact, the nature and significance of the human rights practice presupposes and entails a broader understanding of the legal practice as a whole402. The protection of rights depends firstly on their legalization, which is the formal provision of rights; secondly on the application of the norms and thirdly on the enforcement of legal judgments. The right owner, the subject that must perform the obligation and the content of the right are determined or can be determined by legal dispositions. The actual content of the right is specified during the interpreting process in the cases at hand, resulting in the determination of a specific rule for the parties. The degree of autonomy of law seems therefore crucial for the guarantee of protection of rights.

5. Autonomy of law or rule by law?

398 Griffin (1996: 5).

399 See Peerenboom (2002a) and Lubman (1999); Liebman (2008).

400 Mazza (2006); Natan & Shi (1993; 2000) who, despite common believes of authoritarianism, passivity, ignorance of politics, fear of politics, and intolerance attributed to the Chinese population, surprisingly show (using the survey approach) that Chinese political culture may actually affect democratization in more complex ways than usually acknowledged.401 Rinella (2006); Dowdle (2003). See also Killion (2005).

402 The protection of basic interests (life, health, for example) of the human being may be realized by different means but provision and enforcement of rights or establishment of welfare state institutions, for example social solidarity or the cure of weaker or elder members of society by their family – the existence of these practices should be investigated through empirical research and it is beyond the scope of the present enquiry.

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Chinese intellectuals debated the significance of the model of the rule of law403 as a method of governance and its advantages in respect to the model of rule by law and rule of man (a similar debate already occurred between scholars of the Confucian and the legalist school between the III and the V century B.C., the first advocating the rule of men, the latter advocating the rule by law)404. While during the 1980s the debate was focused upon the alternative between rule of man and rule of law, it is now focused on the alternative between rule of law and rule by law. Liu, for example, argues that rule of law in its thin version is comparable to rule by law and qualifies the Chinese legal system as a thin rule of law system. Scholars within China disagree on whether societies should aim at particular thick theories, or merely thin ones; however, at least two prominent Chinese legal philosophers405 argue that ideas of law without the kind of robust normative backing provided by a “thick” theory do not break out of the confines of mere “rule by law”. Cheng Liao Yuan, for example, would not argue that the rule of law has been achieved in China today406.

Let us spend some words on the Chinese Communist conception of the law, which has been the legal orthodoxy at least in the Maoist period. ‘The guiding spirit of Chinese Communist Law, which merges with the law itself, is Maoism-Leninism-Marxism, and in that order. Fully apprehensive of the dangers inherent in a

discrepancy between fa ( 法 = enacted law) and the people’s sense of justice, the

Communist party, known for its mass organization ability, mobilized all the human resources at its disposal – party members, cadres, and students – to remould public opinion into embracing the communist li ( = customary norms of behaviour) based on Mao’s new democracy’407. In 1949, the year of founding of the PRC, the Kuomintang laws, the laws issued by the CCP’s rival party (which later emigrated in Taiwan and

403 The notion of rule of law is an ‘essentially contested notion’. The core of the debate is if that represents a political ideal, external to the concept of law, or if it is part of the notion. The debate is upon the conceptual link between the law and the rule of law. Another core issue that is debated (partially related to the first) is whether the notion of rule of law entails ideas such as the protection of fundamental rights and freedoms, or democratic government. A condition for the respect of rights provided by the law is that organized power and the use of coercive means which are necessary to govern society must be carried out according to the law and the law drafting should respect previously stated procedures to be legitimate and obligatory for its subjects.

In Zhu’s opinion the Rule of Law is constructed by the nation, and not by the scholars, who can only explain, observe and understand the whole development of this process. The reason lies in the lack of confidence towards the human faculties: human reason is limited. Therefore, the design of the legislation by the state can is not considered to be able to direct the social development in any ways. According to Zhu traditional and rational authority can both be based on the rule of law while the charismatic authority is based upon the rule of men. The two have the same value and significance. Interestingly he regards the history of China as a rotation of periods of rule of man/rule of law models of governance, only due to the will of the emperors. This view is contradicted by Shi who instead argues that in imperial time the emperors governed using the rule of man.404 For an account of the difference between ‘rule of law’ and ‘rule by law’ see Palombella (2009) and Morlino & Palombella (2010). 405 Liu (1998) and Cheng Liao Yuan (1989).

406 See Cheng, Liao-Yuan (1999). The characteristics of a ‘Chinese’ rule of law have been highlighted by Castellucci (2007: 35-92). See also Wang, J. (2004: 347-389); Catá Backer (2006-2007: 29-102); Chen, Jianfu (2004: 250-273). Chen, Albert Hung-yee (2000: 13-54); Crespi Reghizzi (1999: 485-498); Delmas-Matry (2003: 11-28). Keith (1991: 109-118). Keith (1994); Li, Zi (2004: 10-16); Lidija & Basta (2000); Liu, Huawen (2009: 279-305). Liu, Huawen (2007: 209-222). Peerenboom (2001: 161-264); Peerenboom (2002; 2004).407 Lee Luke C. (1962: 336).

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founded an autonomous government) were repelled. ‘As was the case in Russia, the courts were instructed to apply the ‘new programmes, laws orders, regulations, decisions, and, in their absence…the policy of the new democracy. This in effect conferred upon the courts a certain legislative function and great latitude in applying their conception of what the legal norm should be. Soviet influence can be detected side by side with Chinese elements – both traditional and Communist’408. The law issued by the CCP had to become the law regulating the life of the people. It had to become li, issued as fa. Therefore even if the changes were driven by the Communist party of China, people were encouraged to participate and give suggestions for the law drafting and were ‘educated’ during frequent mass meetings. ‘These measures have given the public a sense of identity with new legislation, and this has helped to bridge the gap between the communist li and fa. (…) Where a gap does exist, the Chinese Communists have not hesitated to follow the centuries-old tradition of elevating li (the communist li, of course) over fa’409. Directives issued by the party members at any level were used to supply the law, the purpose was educating people to the communist spirit, to foster spontaneous compliance. In the context of planned economy, the provisions regulating economic activities often blurred the line between politics and law, because the main actor in the economy, the state, coincided with the law maker.

The characteristics of the relation between politics and law are modelled upon the socialist theory of law but interestingly they present strong analogies with the imperial practice and could be compared with the classic theories of Chinese legal tradition410.

Having briefly described the idea of communist law, let us turn to the alleged modification in the conception of law in relation to party policy, and attributed to the need to put in place a legal system to support the emerging economic activities.

During the ‘80s there was not a clearly defined project for reforming the whole legal system in China. Many relevant legal innovations, for example, the reform of state owned enterprises411 (the only kind of enterprise recognized and allowed in the

408 Ivi: 336-337. See also Baum (1986: 69-103). Epstein (1994: 19-55). Potter (2003b).

409 Lee, Luke C. (1962: 336).

410 This comparison is an ‘internal’ or ‘domestic’ comparison, within the same Chinese legal tradition, to be distinguished from the ‘external’ comparison with alien legal traditions or with singular concepts or items of the legal discipline. As noted above (Chapter II), in traditional China administration and law were not clearly differentiated. Another interesting aspect is that in imperial times, the law making was regulated by the principle that ‘who makes the law has also the power to interpret it, that no one else has’ this power. This principle according to Keller, is linked to the idea of the nature of positive or official law in imperial times, considered absolute, eternal immutable, and was only made by the emperor. The local officials, therefore, were forced to create methods to interpret the law without changing its wording, among which analogy (see chapter II above). Still today the bureaucracy can lawfully issue secondary regulations. Sometimes, the secondary regulation is issued on the grounds of a delegation of power by the legislative assemblies. In those cases only it should have legal force. Nevertheless, there is not a clearly stated distinction between the secondary regulations issued as a result of the delegation powers and the others. Moreover, the bureaucracy issues also tertiary regulation. On all these three kind of regulation the bureaucracy exert an exclusive interpretive power. The courts have to ask the bureaucracy for the correct interpretation. The de facto power of the contemporary bureaucracy to issue law is an imperial legacy which generates problems regarding the stability of the hierarchy of norms, infringing upon the respect of one of the basic values of the legal system: the certainty of law. Keller (1994: 711-759); see also Consiglio, Elena, (2008: 198-200).

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planned economy, and therefore operating in a regime of complete state monopoly), as well as the discipline of the private enterprises were at first issued through governmental provisional decrees and only afterwards they received proper legal discipline412. Between ‘80s and ‘90s were specially the areas of commercial law and civil law that underwent major reforming interventions413. In fact, these sectors of law are extremely relevant for the functioning of market economy. A clear system of rules, attributing rights and effectively protected in practice was issued in the area of commercial law to attract foreign investments. The foreign companies, form countries in Europe and the US, would not have invested if they did not trust the tenure of the legal dispositions stating the rules of the game414, and would not have trusted the environment without a sufficient degree of predictability.

At the end of the ‘90s the XV National Congress of the Communist party415, stated

officially the principle of 法治 (fazhi: the expression is translated and interpreted

different ways: rule through the law, rule by the law or rule of law, but the latter seems not to be the more faithful translation of the concept fazhi as it is now understood in China). The above mentioned principle was then inserted in the Constitution with the 1999 Amendment. In the wording of article 5, PRC Constitution: ‘The state guarantees the coherence (or cohesion) and the dignity of the socialist legal system (fazhi)’.

The rationalization of the legal system was regarded by the leaders and part of the intellectuals as a mean to achieve a well functioning market416. The slogans ‘market economy is a rule of law economy’ or ‘market economy is the economy regulated by

the law’ (市场经济是法治经济 shichang jingji shi fazhi jingji) and ‘rule the country

according to the law and build a socialist rule of law country’ (依法建设社会主义法治国家 yifa jianshe shehuizhuyi fazhi guojia), used by politicians and intellectuals417, apparently affirmed the prevalence of law over politics ad the adoption of a method of

411 Yusuf & Kaoru & Dwight (1994); Goldstein & Martin (2000: 603–632); Broadman, Harry G. (1996); Cao, Siyuan (2007: e; g; i). 412 Cavalieri (1999: 187-193).

413 See generally Chen (1996: 3-21). Erh-Soon Tay & Kamenka (1985: 69-98). More specifically on the Civil Law Reform see Edward (1998: 153-198). Epstein (1989: 177-216); Hsu & Arner (2007: 53-79); Lichtenstein (1987: 289-326).414 Cohen & Lange (1997: 345- 378); Huang (1986); Potter (1992: 61-94).

415 The structure of the party parallels that of the institutional organization of the state. The National People Congress (NPC) is the organ endowed with legislative power according to the Constitution (article 58). In the Constitution there is not explicit mention of the parallel party structure. The Communist party has its own Constitution. Even though the NPC is formally the ‘supreme organ of the state’ (article 57), the real place where political decision are taken is the National Congress of the Communist party. 416 See, for example, Clarke (2007a; 2007b: 67-585). For a discussion on the role of law to economic growth see Dam (2006a; 2006b). See also Davis & Trebilcock M. J. (2008); Faundez (2000); Peerenboom (2006a: 823-872).417 Su Li (2004: 113).

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governance based on the authority and the autonomy of law. The decision to follow

the path towards 法治 fazhi, government according to the law, was a political

decision (as it has been already mentioned) and driven by the party from above. Nevertheless, a whole system of law and the practice of law cannot be changed overnight. The point is if the proclamation of the (alleged) superiority of law in respect to policy, thus apparently repudiating the communist subordination of law to politics, actually results in (or plays for or against) a higher degree of autonomy of law, which would determine a shift to the model of rule of law. In this regard, the analysis of Trubek418 is insightful. He argues that the idea implied the political determination to follow the law and to build a country ruled according to the law is that ‘law is the functional prerequisite of an industrial economy’, and also that the institutions of the markets are necessary for economic development. ‘Modern law is a process by which rules governing social life are consciously formulated and consistently applied, the basic goal is to ensure that social life is effectively governed by universal and purposive rules’ 419.

Trubek notes that the core of this thesis, if developed, serves two different and potentially contradictory explanations. According to the first, the law is essential to market economy because it confers predictability, needed for exchanges and transactions, and a set of universally applicable rules. Both the abovementioned requisites are sufficiently guaranteed by a formal legal system which possesses stability. The second explanation highlights what Trubek calls ‘purposiveness’ of law, which poses the law in a close relation to power. According to this perspective ‘development is viewed as a consciously willed transformation of economic activity. The state is seen as the chief vehicle through which this conscious design is articulated and imposed upon the population; modern law is the instrument through which such development goals are translated into specific, enforceable norms. The more effectively these norms define and channel behaviour, the more likely economic growth will occur’420. The use of the law according to the second explanation can be inscribed in the paradigm of instrumental rationality: the use of a mean to realize a certain end. This latter explanation of the core conception is less alien to traditional Chinese legal tradition, and especially the Legalist conception, which defines the law as a ‘tool’ in the hands of the emperor421. Trubek then notes that an augmented level of

418 The analysis by Trubek focuses upon the relationships between law and economic development and is a critical response to the thesis of the law and development movement. See Trubek (1972: 1-50).419 Ivi: 6-ss.

420 Ivi: 8.

421 Liang Zhiping, a prominent contemporary legal scholar, stresses that the notion of law as it was understood and elaborated in traditional China, does not possess the dimension that is entailed by the term ‘ jus’, which is the same one contained in the root of the term ‘justitia’. This dimension was instead already present in the Western law since its very origin. It is this dimension that makes the law a protection which less fortunate, individuals or less rich, or without political power, or considered socially weaker, and also vigilant peoples (those who remembered to keep copy of the documents, who were punctual in fulfilling their obligations, who paid taxes and so on) could invoke against the detainers of power, always naturally inclined to expand their prerogatives and licences. Liang Zhi Ping (2002: 64-67).

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legal instrumentalism, instead of causing an increasing of the overall autonomy of the legal system, could increment the degree of dependence of the legal system from the state structure. In authoritarian systems like China, in which the state is firmly controlled by the CCP, the increased degree of legal instrumentalism can in turn strengthen the political control exerted by the elite in power422. It is therefore possible to argue that the new emphasis on the principle of ‘ruling the country according to the law’, instead of fostering the autonomy of the law, could reasonably be part of a strategy of the Chinese communist party to perpetuate its power423.

While an instrumental conception of power is generally considered as being consistent with the rule by law, some scholars have argued that the rule of law would not be compatible with such a conception. Tamanaha, among others, argues that since an instrumental conception of law is compatible with the idea that law can have any content, it is therefore not compatible with the idea of rule of law, if it presupposes that law should always possess certain characteristics424. This view is shared by the advocates of the model of rule of law in the within China jurisprudential debate, such as, for instance Cheng Liao Yuan425. The starting point of his reflection is the conceptual difference between the rule of law and the rule of man. The understanding of the characteristics, goals, and methods of the two models respectively is regarded as the fundamental premise for choosing one model or another. Chen individuates three main hindrances for the development of the rule of law in China. The first is the traditional legal culture, which neither contains nor fosters the development of the idea of the rule of law, but rather purports ideas which are conflicting with the rule of law model. The second is traditional ethics: the idea of the family as a fiduciary community, the importance of personal ties and the familistic particularism are at odds with the law as an abstract and impersonal method. Cheng mentions for example the frequent choice of the method of guanxi426 instead of that of the law to solve controversies and problems between individuals and groups. The third obstacle to the establishment of the rule of law is, in Cheng’s opinion, the public perception that the adoption of the method of law effectively generates: the emphasis upon the formal respect of law, in fact, would imply the impartial application of law by the judges. However, the judges are not perceived as impartial and therefore the application of the law is largely felt as one more injustice427. Cheng Liao Yan ends the book with the wish that ‘the dream of the rule of law’ could become reality in China. However,

422 The same argument is sustained by Jayasuriya (1999), who affirms that advocacy of the rule of law is more likely to provide political elites with the means to control society while denying that the rule of law will go hand in hand with a transition to market-based economies and even democracy in East Asia, if not sustained by the serious ideological commitment to judicial independence.423 The argument has been elaborated starting from the analysis in Dowdle (2003: 1-200). But see also Chen, Albert Hung-yee, (1999: 97-120).424 See generally Tamanaha (2006).

425 See Cheng Liao Yuan (1989)

426 Guanxi means ‘personal connection’. For a definition of the term and an assessment of the role that guanxi might have played in the market reform see below in the present Chapter. 427 He Weifang shares the same idea. See He (1999; 2005-2006).

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turning to Cheng’s understanding of the notion of rule of law, he seem to share a substantive idea. The argument he puts forward is that it is nonsensical to equating the existence of a system of law with the rule of law: ‘rule of law does not only mean that law is supreme, but also that law has an intrinsic value. Law is constant, it possesses its own procedures. Thus, the measure of the rule of law consists of the value of law and the method (or procedure) of law’428.

Beside jurisprudential debate, the advocacy for a power restrained by its own laws comes from laymen, workers and peasants. According to Lubman, the unprecedented rights consciousness of Chinese citizens is consistent with western ideas of equality, justice and legality, and in particular the idea that the government should be restrained by its own rules429. Lubman argues that the rule of law is an ‘alternative ideology’ whose generalized recognition is apt to ‘legitimate a distinct form of power’430 in China.

6. The general relationship between market institutions and rights: the ‘rights hypothesis’ and how the hypothesis can be corrected to explain the Chinese experience.

The relationships between market institutions and law have been theorized by many scholars431, as well as the relationship between capitalist system and rights432. The Chinese experience can be considered as a specific case in the general discussion for the theorization of the interactions between institutions of the market, legal-political systems and rights433. In this respect the recent developments in China are

428 Cheng Liao Yuan (1989).

429 Lubman emphasizes the role legal consciousness plays in shaping concepts about vertical relationships between state and citizens and horizontal relationships between citizens. Protests and lawsuits brought by citizens against state law are, in Lubman’s opinion, evidences of a changing idea of the correct relationship between state and citizens. Ivi, 307. This argument is put forward by Ke, Wei (2007).430 Lubman (1999: 307).

431 A classical theory is that of Max Weber. Beside his theory, relevant contributions have been given by Friedrich August von Hayek, Douglass North, and Richard Epstein. A comprehensive description of those theories, their arguments and counterarguments is beyond the scope of the present study. Reference to the abovementioned theories will be only made to the extent it is useful to clarify the relationship between legal evolution and market evolution in China after the 1978. 432 The relations between the market and subjective rights have been qualified by different authors as either: conceptual; instrumental; or neither instrumental nor conceptual (for a synthesis of the debate see Diciotti 2006). Amartya Sen individuates two kind of connections between rights and liberties: an instrumental one, in that rights and liberties can offer incentives for the acquisition of the right information in order to create solutions to meet actual needs (in Sen’s opinion the intensity of economic needs adds, rather than subtracts, force to political freedoms); a structural one, because without liberties the exchanges in the market would not be possible. Sen, (1991; 1999b: 249-298). See also Berman (1968: 213-220); Sun & Zhong (2007: 3-7).433 A research from a different perspective upon the relationships between institutions, investment an growth has been carried on by Keefer & Knack, (1995: 210-211) The indicators used by the two Authors are provided by country risk evaluators to potential foreign investors and include evaluations of contract enforceability, the rule of law, and risk of expropriation made by two private firms advising multinationals on country risk factors. The research shows that property rights are found to have a great impact on investment and growth.

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peculiar, since they disconfirm in a way or another the models conceived so far in the attempt of constructing universal analytical explications.

The ‘right hypothesis’434 states that for the market to function there are two essential, minimal, or basic requirements: a legal system ensuring predictability, and the guarantee of the inviolability of property rights, in order to secure stability of expectations, and effective low-cost methods to guarantee the execution of contractual obligations. These methods have to be used and perceived as impartial, at least to a degree generally considered satisfactory. If a system does not guarantee the inviolability of property rights and the protection of property rights against expropriation by the state or by third parties, long term investments or investments of huge capital would not take place, because the risk they would involve would be too high. Clarke stresses that these kinds of investments are the most productive for the development of the economy.

In fact, who operates transactions in the market has to reliably count on an effective and impartial method to get his expectations satisfied when the counterpart behaves incorrectly in fulfilling her obligation, or in case of non compliance. Usually, formal adjudication by the courts of justice serves these functions.

The ‘right hypothesis’ has been challenged by the Chinese experience: the remarkable economic growth experienced by China occurred notwithstanding the low degree of rationalization and formalization of the legal system, the weakness and inefficiency of the courts, and the heavy interference in judicial activity by government officials and by the society in general. The widespread use of guanxi435, personal connections, for example, which infringes upon the impartial and independent exercise of judicial activities436.

To explain this seemingly ‘Chinese paradox’, Clarke reformulates the hypothesis, maintaining the importance of the guarantee of private property from expropriations by the state or by interference from other individuals, but diminishing the causal relevancy of the formal legal system to guarantee the actual fulfilment of contractual rights and obligations for the functioning of the market.

The activity of courts in judging controversies arising from the contracts could have been substituted in China by the action of non-public actors operating in a non monopolistic position437. In other words, Chinese society would have been capable of putting in place alternative methods, functionally equivalent to the resort to court of justice, and effective, to guarantee the fulfilment of contractual obligations: ‘relational practices’ regulated by informal rules and principles, informal social

434 Clarke (2003b: 89-111).

435 Guanxi 关系 literally means ‘connection’, and refers to a personal connection ‘that makes a difference’. Guanxi could be considered as an illegal practice. See Lei, Duo (2005: 81-84); Guo, Xuezhi (2001: 69-90). Contra Guthrie, Douglas (1998: 254-282).436 See paragraph on judicial development below.

437 Clarke (2003b: 111).

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sanctions 438. Moreover, social practices such as pao439 (see chapter III above), or guanxi have contributed significantly to the impressive economic growth, in that they constitute reliable and stable social standards of behaviour. The general view holds that the commercial activities are fostered by the use of law. Legal interactions would constitute a formal and standard method for initiating, carrying on, modifying and extinguishing commercial relationships, a method potentially valid and available to any person possessing the legal requirements specified by law. For this reason it is assumed that this method is the best one to support economic exchanges between strangers in the market. Chinese experience of the last three decades challenges the assumption that legal relationships are more far reaching, stable than personal relationships, and that are therefore more suited to foster economic development in a capitalist market system. The practice of guanxi guarantees dynamic and far reaching connections: is ‘If party A in one town wanted to engage in trade with party B in another, it is true that his guanxi might not extend to that town. But was that a necessarily limiting factor? He could often find a party C in his own town who did have guanxi in the other town or who had guanxi with party D who in turn had connections in the other town. By a process of vouching, party A could get the vicarious protection of party C’s or party D’s guanxi, and commercial relations could be successfully effectuated’. The principle of pao, as well, constitutes an alternative method to manage social and economic relations, apt to creating networks, potentially very large. Pao is based upon the principle of reciprocity. It creates a bond based upon trust and analogically modeled on familiar relationships. The rule governing pao is that favours have to be reciprocated and commitment must be respected, in a context in which there is a general agreement on the interpretation of commitments and facts generating obligations. The favor or the agreement parallel the contractual pact and are therefore suitable to create bounds and obligations between strangers as well. Since the content of the favour could be determined in a future time, but the rule is that who has been benefited must in turn benefit, the rule of pao is a principle apt to answer to needs both in the long run and in the short run, including adjustment of the content of the obligation (if requested by one of the parties), thus generating a potentially highly efficient system. Beside, the obligations entailed in the practices above described are secured by socially enforceable sanctions. However, even if Chinese citizens would have been and would still be able protect themselves from incorrect behaviour of other private citizens, they would lack protection from the state

438 Literature abounds on the structure and functioning of Chinese social networks. I am convinced that a good model for describing its functioning is game theory. Schelling uses it to describe the behaviour of bicycle’s drivers in Beijing. As he had the opportunity to experience, they are capable of predicting the behaviour of others and to imagine their trajectory and adjust their speed and trajectory (all at the same time) so that they are constantly in motion without accidents. If one’s behaviour does not conform to the implicit rules of the game, the other participants are puzzled and may fall down or have an accident because they do not know what to expect and therefore they can't adjust their behaviour. The result is that they stop, causing incidents. The anecdote he tells is that he was personally crossing a large street in Beijing constantly progressing and the bicycles managed to avoid him and continue their riding without stopping. But at some point he thought he had to stop and this caused a great number of bicycles to fall down. They were puzzled by his behaviour and did not know what to expect. Schelling (2006). However, the lack of formal legal rules does not mean that there is no rule altogether. The functioning of Chinese society as a whole seems fits this model, further research would be needed to assess this argument. See also Boisot, & Child (1999: 237-252); Burns & Flam & de Man (1987); Ogus (2002: 419-434).439 For a definition of pao see Chapter III above, and generally Lien, Sheng-yang (1957: 291-308).

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action. As to this issue, Clarke suggests that judicial institutions are not the only institutions which are very important for the market’s healthy functioning: the activity of the ‘governmental agencies regulating the relationships between citizens and which have the power to order the transfer of resources from one side to another’ is very important as well. The certainty that property will not be expropriated can be guaranteed by a ‘well functioning legal system or simply by a wise government that prudently restrains itself from exercising the power it has to maximise its entries by taxing the flux of revenues’440.

A survey conduct in Zhejian province by Sun Xiaoxia and Zhong Ruiqing441

shows that the interference of local government organs is often heavy on private enterprises and their rights recognized by the law are violated in several ways. According to the results of the survey, there is a direct link between being a party member and some sort of advantages as private entrepreneur. The survey also demonstrates that since the development of an enterprise is tied to the government, the entrepreneurs are reluctant to defend their rights though the courts. Therefore, and this is the conclusion of the two authors of the survey, it would be pointless to improve the judicial system without modifying the relationships between the government and the enterprises. Turning this argument around, the relationships between the government and enterprises may guarantee some sort of protection for party members or people using 关系 guanxi, personal connection, alternative to the courts but not formalized. Consequently, there would not be the guarantee of equal access for all the entrepreneurs as a judicial system instead guarantees.

Finally, if it is true, according to Max Weber’s theorizing, that a legal-rational system supports market economy because it ensures precision, rapidity, certainty, predictability, according to the rational rules that constitute it, nevertheless, as Clarke points out, it is not at the same time necessary that it attributes ‘rights’, understood as powers, faculties, and immunities, ascribed to individuals and enforced using the coercion of the state. It would be possible to imagine a legal system only constituted by regulations, defined by Weber as norms which are directed to state officials, containing instructions and prescriptions of duties, without providing any right for the individual. Such a system would guarantee a sufficient degree of predictability and stability to ensure the good functioning of the market.

Therefore, while predictability and the certainty of contractual obligation’s fulfilment are necessary and should be ensured, in that they possess an intrinsic economic value and thus are relevant for the functioning of the market, the protection of rights would not be necessary442.

Conclusively, it seems that the Chinese experience challenges the commonly held assumption that a legal system attributing rights ensured through the judicial system is necessary for the functioning of the market. The analysis has shown what alternative

440 Clarke (2003b: 100).

441 Sun & Zhong (2007: 3-7). But see also Cheung (2005: 695–720).

442 Clarke (2003b: 96).

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methods supply a rational legal system conferring certainty, predictability, and playing a role of coordination without necessarily attributing and protecting rights to individuals.

6.1. Arguments supporting the idea that socialist market is influencing democratization of China institutional system or wide spreading support for constitutional values.

In his forecast of possible future development of the People’s Republic of China in the Post-Mao period of ferment and change, Benjamin Schwartz indicates that there might be a movement away from full totalitarian control of society not only in the economic sector but in other domains as well, to situations in which the political order will provide a certain space of autonomy without however renouncing its ultimate authority443.

The arguments articulated in the following pages aim at showing some of the most significant effects that the shift to socialist market economy may have generated (or that could eventually bring) with regard to: the role of ideology; the structure of social relationships; the control of the CCP upon the social groups; and a more assertive role of the institution in respect to the influence of the party.

The diversification originated by the new economic order has pushed towards an intellectual shift, has forced towards a shift in ideology. The new common goal, once faded the full realization of communism, is reaching rapid economic growth. The attribution of priority of law over policy, even if it does not represent an attribution of autonomous character to law444, however, coupled with the embracement of a capitalist-like economy, brought about some changes in relation to the role of

ideology. The first consequence of the commitment to 法治 fazhi, the method of using

the law to govern the state and to create a socialist market economy, is the rejection of the dogmatic loyalty to ideology (as result of the conscious determination of the CCP leaders) and, consequently, the modification of the arguments allowed in the public discussion. In order to understand this point it is necessary to step back. From the foundation of the PRC in 1949 until the death of Mao Zedong, and in the following two years of transition (1976-1978), the standard to measure the correctness of political choices was their conformity to the ideological and political thought of the founder of the state, Mao Zedong. In fact, at that time, there were not stated procedures to regulate the succession to power. The Communist party was not provided with clear rules to designate the successor of the first head of the People’s Republic of China. Mao himself designated Hua Guofeng as his successor. The only

443 Schwartz (1987: 1-10). Schwartz distinguishes the aspect of a partial liberalization of the economy from the aspect of the control on the socialist spiritual education: ‘Such de facto autonomy would not remain immune to intervention and to shifting boundaries of the permissible from area to area. Without in any way predicting this outcome I would simply urge that it would not be out of line with the cultural orientation discussed in these pages, that is, the predominance of the political order’ Ivi: 10.444 See discussion above in the present Chapter.

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ground upon which Hua could warrant legitimacy of his power was the word of Mao. To foster his legitimacy, then, Hua launched the policy of the ‘two whatevers’: whatever Chairman Mao said had to be respected and whatever Chairman Mao initiated had to be continued445. The faction within the party which supported the formally designed successor, was challenged by other factions among which the one led by Deng Xiaoping. The struggle among internal factions of the CCP ended with the takeover of power by the faction leaded by Deng Xiaoping. The reason why Deng won the political struggle was the priority attributed to the goal of economic growth, firmly purported by Deng446. The blinded adherence to Mao Zedong political and intellectual heritage was substituted by the strongly pragmatic and efficientist policy inaugurated by Deng Xiaoping. The criteria to evaluate political and normative choices were changed from a rigid correspondence to ideology to pragmatic ones. Thus, the ideological change is in some sense an obligatory path. The choice to embark on the road of socialist market economy has forced the abandonment of ideology: ‘the contradiction between economic liberalization and the fundamental tenants of socialist doctrine has every day become more evident and has weakened ideological cohesion of Chinese leadership as well as that of Chinese society’447. However, the Four Cardinal principles448 ‘offered an ideological safeguard against the possibility that emancipating the mind from dogmatism could lead to the negation of Marxism’449.

In the past, the conflicts between social actors were solved by appealing to fundamental ideological propositions. Ideology provided standards of choice and of conflicts resolution based upon the fundamental criterion of the principle of authority. However, some of the conflicts generated by the market do not have solutions that can be qualified as ‘correct’ or ‘incorrect’ from the point of view of ideology. Highly complicated issues, of financial, economic and legal nature, cannot be solved by appealing to the principle of authority, but instead by using a rational method. This could lead to a more frequent use of rational arguments in the public discourse, as their persuasive force increases. This transformation may potentially bring a number of consequences. First of all, the augmented number of ideologically neutral or unsolvable conflicts ‘gives both the political elite and the emerging elements of civil society increasing incentive to shift the locus of their dialogue out of the CCP and into a constitutional apparatus’450. Secondly, the intellectual authority of CCP is grounded upon its ideological authority. As the arguments grounded upon ideology reduce their

445 Lo, Carlos Wing-hung (1995:17-18).

446 See generally Chang, David (1988).

447 Clarke (2003b: 162).

448 The Four Cardinal Principles are part of the official ideology purported by Deng Xiaoping in the late seventies: adherence to the socialist path, upholding the leadership of the Communist party, upholding Marxism-Leninism-Mao TseTung thought and the people’s democratic dictatorship. These principles are enshrined in the 1982 Chinese Constitution. Han & Hua (1990: 162).449 Lo, Carlos Wing-hung (1995: 20).

450 Dowdle (2003b: 53). Dowdle (1997: 1-125).

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persuasive force and efficacy in the public discourse, it is likely that the intellectual authority of the CCP will diminish as well.

Another argument deserving mention is related to the justification of the one party system and the principle of ‘democratic centralism’, proclaimed in the preamble of the Constitution. The CCP represents a ‘vanguard party’, it is considered as having the capacity to formulate ‘scientific judgments’ based on the observation of the needs of the people through the consultation of the population at large in what is called the ‘democratic process’. The legitimacy of these judgments is determined by their correctness, which is in turn measured on their success, that is, on their capacity to individuate and realize what is felt by the population as a priority, ‘moving the society to a better future’. The ‘democratic’ aspect lies in the fact that the priorities and the needs expressed by the people are precisely those the party should, must, have to realize. The justification for the one-party rule ultimately lies in its commitment to realize a better future for Chinese society. At present, economic progress and socialist modernization represent the better future for the contemporary Chinese state. In the long run, the identification of the common good or goal for Chinese society could eventually change. As Angle writes, ‘if all Chinese citizens can jointly endorse that they want a neutral, procedural state that guarantees a certain kind of fairness in public competition over goods, then there is no justification for keeping political competition out of bounds. For democratic centralism to continue to make sense in China, therefore, Chinese would need to see both the continued endorsement of specific, perfectionist goals like socialist modernization (assuming that this is not just an empty slogan) and the realization of broadly inclusive consultative mechanisms’451. The principle of democratic centralism seems to be incompatible with competing conceptions of good. When the need of fair procedures stated in advance to regulate competition of interests, of respect of the laws by the authority and administration, of access to decision making will be generally held by the Chinese people, the justification for democratic centralism will dissolve itself, coherently with its own premises452. This is the reason why, as Schwartz (quoted at the beginning of this paragraph) correctly points out, the party would never give up the socialist spiritual education, because it indeed represents a pivotal point of tenure of the overall architecture that supports the CCP legitimacy453.

Another effect of economic change is that it has weakened traditional systems used by the CCP to control the state organs and the society at large.

451 Angle (2005: 518-546).

452 Ivi: 539-541.

453 In fact, educating the population through the means of music, games, oriented and factious school programs, biased textbooks, and lack of pluralist sources for the students, the restriction of the channels of information available to the broad public through the censorship, aggravated by the fact that the majority of the population does not speak nor read foreign languages, serves to orient and instil certain beliefs, needs and desire into the population. Moreover, due to the structural hiatus between the intelligentsia and the population at large, the intellectuals purporting different ideas are suffering for isolation, are not supported and their idea are not capable to spread through the social strata. The separation between intellectual and population is a constant feature of the history of China but it has been aggravated by the ‘crisis of Chinese consciousness’ (see above) at the beginning of the XX century. In general the population tends not to identify with the values or the means purported or suggested by the intellectuals.

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One of the ways in which the CCP effectively controlled the various organs of the

constitutional system was through committees or cells, called 党位（ dangwei ） ,

composed by members of the party. Although formally external to the organ, these committees or cells, named ‘parallel party structures’, link the state structure to the structure of the party and are capable to influence substantially any decision, judgment or provision issued by the organ. These cells perform informative functions; control the activity of the institution; take substantive determinations about the choices and the kind of activities the organs must put in place; decide the political agenda of the organ according to party directive. Finally, they are capable of influencing the career of the members of the institution. However, the degree of complexity characterizing the problems generated within a market economy surpasses the capabilities and technical skills generally possessed by the components of the ‘parallel structures’. Being deprived of the necessary instruments to solve the problems (for example, in the area of Intellectual Property Law, International Business Law and International Arbitration Law), they are less able to influence and interfere with the decision of the organs. In turn, the influence that the CCP would be able to exert upon the activities of the organs in the resolution of complex issues results significantly weakened454.

The CCP uses to control social groups through its clientelar structure. In the new circumstances of the socialist economy, powerful economic actors try to get the support of political power to secure for themselves the best resources and engage in businesses that can raise their profits. In order to maintain its hegemonic position, the CCP is sometimes forced to transfer the conflict between its different ‘clients’ from the within party bargaining into neutral, institutional spaces, were it can be solved by recurring to formal procedures, which follow rules stated in advance. This way the CCP manages to solve the conflict without giving the impression of preferring one client in respect to another, with the purpose of preserving the bond of trust and the loyal support of all the competing actors. As a consequence, the institutions of the state acquire strength and legitimacy because the subjects involved in the competition increase their trust on procedural praxes, for example that of decision making within the national legislative assembly, the National People’s Congress455. The standards and arguments allowed in the discussion within institutional organs differ from those used in the informal process of negotiation within the CCP456. Due to the pluralisation of the economic actors, the relationships between different interests groups are becoming more complex, Chinese political authority is forced to rely on the procedures provided by the law457. Moreover, the party institutions exerting political control suffer limitations (above-described), which force the party to enact decoupling

454 Dowdle (2003: 67-69).

455 See Dowdle (1997: 1-125).

456 Dowdle (2003: 58-62).

457 Li Zhenghui e Wang Zhenmin (2005).

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strategies (decoupling itself from inter-client dispute) and to allow a certain degree of pluralistic access to decision making within autonomous institutions such as the National People’s Congress458.

Lastly, the control of the party on the society was guaranteed by institutions such as urban neighbourhood committees, which represented one of the regime’s key means of monitoring its citizens. Rising incomes, a growing private sector, the contraction of state firms, and the privatization of housing have all conspired to weaken the neighbourhood committee system. As a consequence, these institutions have dramatically declined in power and relevance.

Economic liberalization favoured social fragmentation459 and creation of spaces for private initiative; generated new needs and desires for the individuals. Associational activities in the opinion of some scholars are pointing to some broad trends of change in contemporary China. ‘Regardless of whether they represent a transition toward social corporatism or an emerging civil society’, this phenomenon would indicate ‘the restructuring of Chinese society trough the breaking down of vertical control structures and the development of horizontal social grouping. This process has contributed to an emerging realm of organized social life, increasing social autonomy, and the development of differentiated social interests’460. Ideally, this scholar concludes, ‘the development of associations will enhance society's ability for self-organization and self-management, and allow the government to transfer many of its social and economic management functions to associations’. This would allow participation of peoples to decision making process. However, the party maintains tight control on these associations, including the NGOs, using the strategy of promoting associations in order to control them, as for example happens with the ACTFU, the state sponsored association representing the interests of workers461, the only of its kind which is legally recognized, and the so called Governmental-Non-Governmental-Organizations, which are NGOs promoted by the government462. The major problem the associations face is that of collective organization in order to carry on collective action to protect interests. However, the economic interests are more focused in respect to diffuse interests, for example those of the protection of divorced woman and so on, and they have limited purpose. These two characteristics would explain why interests of this kind need less time to be recognized and protected being the organization of the actions to be taken for their representation less difficult463. Even if this explanation may have some insights, the very reason why protection is recognized to economic interest is that this is functional to the economy. The main

458 Dowdle (2003: 70).

459 The emergence of plurality due to the new economic order is reflected in the realm of ideas and opposed to the political tendency towards unity. Liu & Huang & McLean, (1997: 14-15).460 Ding (2001: 74).

461 See Chen, Feng (2003).

462 Liu &, Hu & Liao (2009: 529–554).

463 Dowdle (2003: 57).

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obstacle to the affirmation of those interests is that the CCP often effectively proposes solutions that can tightly control. In any case, the market conditions created the premises for the recognition of subjects and groups, such as professional associations, industrial groups, bearers of specific interests linked to the activity they carry on.

6.2. Arguments contra the idea that socialist market is influencing democratization of China institutional system or wide spreading support for constitutional values.

If the analysis suggested by Dowdle is correct, the indirect effects that the market system would have upon Chinese institutions could be: the reinforcement of formal procedures of political decision-making; a wider and more pluralistic participation to public discussion; a change in the argument used in public discussion due to their persuasive force; the need for the CCP to adopt decoupling strategies.

All together, these factors could, in the long run, bring to a stabilization of the autonomy of law, a pluralistic opening of the processes of political decision-making, which would be opened to the participation of representatives of interest groups (women, workers and so on) and, consequently, have an indirect effect upon the level of protection of fundamental rights and freedoms of the citizens.

But yet, the above described phenomena seem not to be sufficient to induce the acceptance of democratic values in Chinese constitutional system.

First of all, the social emerging plurality (see paragraph above) is controlled by the party through the limitation of institutional associations by which the interests of groups can be expressed.

Secondly, the conceptual inconsistencies among laws and regulations undermine the effectiveness of the system as a whole. These inconsistencies are due to the party’s practice to attempt to entrench the competing views of the party’s factions in the wording of the laws and regulation, which happen to become the formal expression of policy464.

Thirdly, Chinese bureaucracy constitutes a serious power and its capacity of bargaining and manoeuvring among officials on the national, provincial, and local levels is a hindrance to the development of transparent methods of governance465.

Moreover, as mentioned above, some scholars466 indeed support the idea that the National People’s Congress will play a decisive role in leading institutional change because, among other things, the members of this institution are not anymore passively ratifying every decision taken within the party’s decisional structure, but they are, to some extent, actively engaged in the process of decision making.

464 Potter (2003b: 122).

465 See Lampton (1992), who uses the model of ‘fragmented autoritarianism’. Hayek considers a key characteristic of independent judicial organs, which solve conflicts and decide disputes. The bureaucracy instead is considered a hindrance to the affirmation of the rule of law.466 Se Dowdle (2003), but also Ajani (2006; 2009).

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Nevertheless, the NPC as an institution acquired more institutional authority under the guidance of Peng Zheng, and due to his personal charisma vis-à-vis other high officials467. Therefore, the rules governing institutional relationships and power distribution among the state organs have not been changed. If there is more place for discussion and arguments within the national legislative organ, this is due to high influence of the President of National People’s Congress, and not merely because formal institutional procedures have acquired autonomy and authority468.

Lastly, for the legal system and the law to acquire autonomy and authority, and for the norms providing fundamental rights and freedoms for the citizens to be effectively applied, the cooperation of different institution is needed. The authority and legitimacy of the autonomous legal reasoning by law professionals is the main issue at stake. On one side, jurisprudence and judges, or legal practitioners, must have the authority and the power to elaborate and suggest normative premises different from those corresponding to and consistent with (non-contradictory to) political directives. On the other side, the judiciary must be able to apply such kind of premises to the concrete cases. Indeed, the degree of autonomy of law depends to a great extent on what Silverstein calls ‘constitutional space’469 of the courts. This expression refers to the range of judicial activities allowed within a constitutional space. Courts should be capable to use the principles elaborated to solve controversies in areas of law that are functional to the economic development (civil and commercial law) in other areas of the law, operating an extension of their principles and reasoning. In their application of legal dispositions, courts should be able to issue judgements whose premises are different from political instructions and directives. However, constitutional space is defined also by the capacity the courts possess to make other institutions and the holders of political power accept their judgments. Norms prescribing rights and human rights are such kind of premises upon which to ground legal reasoning. If these premises cannot form the basis of the reasoning of the judges because the other institutional actors prevent or resist this operation, the law easily becomes a ductile instrument in the hands of power holders470. In those cases power tries to co-opt legal professionals by neutralizing actions and ideas potentially conflicting with those held by the regime, and which are based on a different idea of law471. The following paragraph articulates the reasons for the limitation of the ‘constitutional space’ for the Chinese courts, at the same time describing the characteristics of the judicial system and its possible evolution.

467 I was told so by a Professor of law who has also been member of NPC for ten years during an interview and the hypothesis consistent with the result of the research in Potter (2003b).468 See Potter (2003b).

469 Silverstein (2003: 442).

470 Dowdle (2003: 20).

471 Ivi: 38-39.

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7. The different path of Chinese institutional evolution: institutional capacity and the minor role of the courts.

While the development of constitutional systems in the Western countries was led by the activity of the judiciary, which represented a powerful counterbalance to the King and the governments, in China courts are not the keystone of the government architecture472. The bureaucracy instead is the most powerful institution. The reasons of the weakness of the judiciary as an institution can be found in the institutional history of China. As already remarked, the structure of the bureaucratic imperial state did not contemplate the autonomous figure of the judge. The bureaucrats explicated the judicial functions as well. Moreover, trial had the purpose to declare, to demonstrate a truth already secured by the evidences. The role of the judges in charge of the trials is therefore limited. But there are also ideological reasons for the weakness of the courts as an institution, constituted by the marginal importance historically attributed to law and its practice. Furthermore, the courts as an institution are weak for political reasons; in fact, the judiciary is heavily subordinated to the Chinese Communist party473. Even if the judiciary is formally independent, the project of the party has been to ‘politicize’ it (sifa danghua). Institutional reasons as well determine the weakness of Chinese judiciary and judicial system: the system of ‘double responsibility’ provides that the courts are responsible at the horizontal level to the corresponding legislature and at the vertical level to the higher court474. In addiction, the nomination and removal, the determination of the economic treatment and career advancement are not decided by an third and independent organ of self government, but by the legislature to which the judges are responsible. The power to nominate and remove judges is formally attributed to the legislature, but substantially lies in the government. The remuneration of the judges is low and this makes them prone to widespread corruption. That is why the common say is that: ‘If you want to win a case you must pay the judge’. The double responsibility system makes judges victims of local protectionism as well. The local government is responsible for the status of the judges and their career advancement and their payment, therefore the judges tend to please the local government and favour its interests when involved in a dispute.

The judgment must be motivated but the standard of argumentation of the motivation is not stringent in the ordinary judgment. Ordinary judges cannot directly interpret nor apply Constitutional dispositions475, if the content is not replicated in an ordinary law. A political committee, the ‘adjudication committee’ supports and monitors the activities of any court. The adjudication committees are organs

472 Literature on the topic abounds: see generally Peerennboom (2010); Meiners & Chen (2007: 29-40); Peerenboom (1998); Nanping Liu (1997; 1999: 35-98); Zou (2002:1039-1062); Killion (2005: 43-80); Leng, Shao Chuan (1967); Gechlik (2005-2006: 97-137).473 Cohen (1968-1969: 967-1006).

474 See articles 123-135 of the Chinese Constitution. See also Liu, Nanping (1991: 107-140; 1997).

475 However, there have been exceptions to this rule. See Cai, Dingjian (1995: 219-245); Nanping Liu (1997) and Liebman (2008).

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constituted by retired judges or non-judges, mostly party members. These organs have several functions: suggesting how to decide hard cases, important questions in sensitive cases or extremely important cases for their potential social, economic consequences. The judicial committee is not formally endowed with judicial functions, but only with consultative functions. Nevertheless, ‘hard cases’, that is, cases in which other state organs, important personalities or their interests are involved, or ‘uncertain cases’, that is, cases in which the facts are not clear, are devolved to the judicial committee for adjudication. Nevertheless, the judicial committee actually adjudicates in the above mentioned cases in which it should be only consulted. Therefore, the judge who acknowledged the relevant facts of the dispute during the trial and listens to the parties and their lawyers is not the same who actually decides the case. The presence of the committees and the role they play in the adjudication of cases has been considered an infringement upon the principles of unity and concentration of the process in that it violates the rule that the same person who acknowledges the case during the trial must issue the judgment. In short, the presence of the adjudication committees is against the principles of due process of law. In the opinion of Zhu Suli, the action of the above mentioned committees does not constitute an undue interference which compromises the autonomy and independence of judges. It would instead constitute a support to the activity of the judge and effective protection towards external interferences, and explicate the function of harmonizing the opinions476. For this very reason many judges decline their responsibility on the correct adjudication of cases. Also, the system of individual case supervision (gean jandu) consists of the possibility of supervising or removing the lawsuit from its judge to a senior judge for the purposes of revision and control, in a discretionary fashion, with no application of the principle of the predetermination of the judge by law.

The notion of independence of the court is interpreted in a peculiar way. ‘Judicial independence in China means ‘on the one hand, the prohibition of illegal interference in the work of the court, and, on the other hand, the essential control of the courts by the people’477. Courts must not be subject to the interference of administrative organs, social organizations and individuals, having the ‘duty to independently exercise the right to adjudicate according to the law’. According to the dominant interpretation of this disposition, the courts as a collective entity should be independent, while the individual judges may not be. Therefore, ‘judicial independence’ does not refer to individual judges but to the collegial panel of judges as a whole: it is the court as a collective entity that should be independent. The independence of the judges in China

is also compromised by the widespread practice of 关系 guanxi, which literally means

‘personal connection’. This practice is part of the Chinese culture, a deeply rooted social practice. The provisional definition of this practice could be ‘informal exchange of favours between people’478, for example money in exchange of a favourable judgment, or a meal in exchange of a professional advice or other information. The

476 See Chen, Albert Hung-yee (2004: 227–249).

477 Lee, Luke T. C. (1962: 340-341).

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practice of guanxi meets the objective and subjective elements described by the crime of corruption. It would certainly be repressed according to the law; however, it is largely tolerated as social behaviour.

The Organic Law of the People’s Court states that the courts must ‘educate the citizenry towards patriotism and a conscious respect for law’ (art. 3). The court is attributed an educational role towards the persons involved in a dispute. This role is for instance witnessed by the use of confessions.

Zhu Suli479, while not denying the above, holds that the current practice is not pathological, and he puts forward two arguments or reasons, which can be generalized as the grounding that conservative thinkers unusually put forward to justify the court practice. The first may be defined as the social acceptance or social acceptability argument, and the second pragmatic-consequentialist argument. The first argument of social acceptance or acceptability is premised upon the idea of the ubiquitous influence of the communist party on society. The CCP permeates every aspect of the life of Chinese people. In this sense Zhu Suli does not differentiate the CCP from the Nationalist party or Guomindang. The ideology of building the country is tightly linked with the role of the party: the party builds up the state, governs it and is above the state. The argument of Zhu Suli is that it is misleading to speak about the influence of the party upon the judiciary and distinguish it from the influence of society and administration: in so doing the Western model would be inappropriately applied to China. According to the explicit provision of law and Constitution the judiciary system is independent from any other power. The courts and procuratorates are endowed by the law with the necessary powers and attributions to resist external influence, coming from individuals and association and from the party and party members as well. But often the courts do not use the instruments provided by the law. The practice to ask the opinion of the party on the correct resolution of a case is considered by many a way in which the party could unlawfully interfere with the adjudication of a case. Zhu Suli, instead, does not regard it as interference upon the actual decisional activity of the court. By using a counterfactual argument, the author holds that even if the courts did not ask the opinions of the party members, their decisions, taken after the advice and suggestion of the party members, would not differ from the ones they would have taken without consulting them. The parties in any dispute are under the leadership of the communist party, the economic and social elites are constituted by the party members, the CCP is accepted by people and in fact controls and influences every aspect of Chinese social life, determines the direction of government and society. Moreover, the party sets up cells in every governmental organ and in the associations of citizens. Therefore it would be misleading to speak about the party influence upon the judiciary, because it would be difficult to

478 However, it is difficult to frame the nature of guanxi as a kind of reciprocal obligation; it is also to be investigated if it can be better defined as an ethical obligation or a social obligation . This practice is originated by the family-centred mentality (being ‘family’ interpreted as a broad concept, which extends far beyond the nuclear family members), coupled with a general rule of ethico-social nature which states that one must help a person of his family that is in need.479 See Chen, Albert Hung-yee (2004).

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distinguish it from other kind of influences such as that of other administrative agencies and social organizations. The point of this argument is that the structure of thought, the hierarchy of values, the weight attributed to arguments and the orientation of the judiciary, the intended reasons to use the judiciary and the end toward which it tends are the same goals, reasons, understanding and orientation of the government (the supreme goal being the construction of a socialist developed state). This thesis also holds that judicial argumentation does not possess peculiar characteristics which differentiate it from administrative or governmental argumentations. The judges do not significantly differ from a civil servant, which is why they are called ‘judgment officials’. He contests against the preference accorded to law as a method to ensure justice and social solidarity. The political way or perspective in his opinion should be preferred to the separation of powers and the principle of the supremacy of law. In this view, the party interference could be seen as the performance of its political functions of integration and social representation. On the basis of the arguments above, the conclusion drawn by Zhu Suli is that the Western model is not suitable for China and that the adjudication committees are an example of Chinese native resources used in the juridical field to affirm the ‘rule of law with Chinese characteristics’. Zhu Suli argues that the party interference with the courts activity actually protects the activity from external influences. According to Zhu Suli, the supremacy of law, the principle of legality and the primacy of parliament, are not that necessary to ensure justice and social solidarity. The social acceptance or social acceptability argument affirms that even if the CCP exerts or has exerted a decisive influence upon the judicial system, the view of the party would not be incompatible with the general one shared by common people. It is not only arduous to identify the influence of the party in everyday life, but it is also appropriate to understand that this influence possesses a remarkably pragmatic and opportunist character.

The analysis above supports the provisional conclusion that it is not likely that the courts are going to be the key institutions in a process that will eventually lead to democratization of the Chinese political and legal system. It seems correct to hypothesise that the developments of Chinese institutional and legal systems are likely to lead to an original institutional structure, to a distinctive Chinese model.

However there are modest signals of an increased capacity of the courts to play an independent role in the system.

As for a general principle, the prerogative to interpret the law lies in the same organ who issued the law480. The courts must only apply it. This principle is a heritage of the socialist legal formalism and of the imperial legal practice. Nevertheless, the law creation by the courts is systematic. This is due to the increasing complexity of legal issues, to the abundance of norms containing vague notions, unclear drafting, and to the often lacking legal provisions. On this matter, a broad distinction must be drawn between the role of the supreme judicial organ, the Supreme’s Peoples Court,

480 See Keller (1989; 1994); Nanping Liu (1997).

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and the other levels of jurisdiction. The Supreme’s People’s Court tired to transform itself in a key institution for the determination of rules and the interpretation of constitutional values in two cases. The efforts of the SPC to play an innovative role in protecting the rights and interests of the citizens were hindered by the veto of the CCP481. On the level of basic court, instead, the judges seem to be able to play a progressively more innovative role, in creating new norms to adjudicate cases at hand, issuing innovative decisions, verdicts that break with existing laws or norms, or that resolve gaps in existing law when the contents of the judgment are in not tension with existing understandings regarding how the law should be implemented482. The judges may be able to issue legal opinions and judgements that do not directly challenge the rules governing institutional relationships and power distribution, and engage in direct lawmaking by interpreting vague law or filling gaps in the law, mainly in private law context. This may change the role of the lower level courts, in the areas and to the extent this does not directly challenges the norms and praxis governing the courts relationships with other organs of the State or of the party. The courts are attempting to engage in institutional innovation that expands their powers, but without success.

One of the general principles that guide judges in their application of the law is that the decision must reflect the ‘common feeling’483 of the people. ‘Chinese judges acknowledge in interviews that they routinely strive to achieve decisions that will be perceived as fair and that will minimize popular unhappiness with courts even in the face of laws and regulation that dictate other outcomes. Courts in China may be expected to adjust their interpretations of the law to achieve popular outcomes or outcomes that minimize social unrest. But they are not expected to do so in such an explicit manner’484. The judgment is considered a way to meet the sentiment of justice of the people if the law does not grant a similar outcome. In case of legal vacuum the judge often draws from tradition to enucleate the grounds for the decision485.

8. The sustainability of China’s economic growth and the implication for prospects of democratization according to political theorists.

481 The first is the Qi Yuling case, examined by the SPC in 2001. In this case the SPC was using the Constitution to protect individual rights. The SPC received a notice that it had overcome the scope of institutional power and Propaganda Department ordered that the issue should have not been further discussed. The other case is the seed case judged by Judge Li. Liu, Nanping (1997).482 Du, Gangjian (1989: 93-100).

483 This notion is part of the theory of law formulated by Chen Zhonglin, the theory of the 三常 (san chang), according to which common feeling must be taken into account by the judge to issue a correct judgment, especially in hard cases. 484 Examples are 1. The Dongguan Court in Guangdong Province, decided to reduce the sentences for some convicted criminals who agreed to pay compensation to their victims; 2. Often these principles are those of traditional Chinese legal practice, as for instance the principle of collective or joint liability (Chongqing case) 3. the case of the major that used the money of a bribe for the poor village, 4. the case of the boy that injured the woman on the bus and asked for repayment.485 Liebman 2008.

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Peeremboom seems to support the argument that in the case of China and under certain circumstances it may be justified to restrict rights in the interest of political and social stability. China is considered a country in which there is an explicit and clear majority preference for stability and economic growth. This would make Chinese people more inclined to tolerate restrictions on civil and political rights and would also constitute the reason why little support is given to political dissidents and liberal democrats. Moreover, there is still a wide support by the population for the war on crime, support for the death penalty and for other harsh punishments, due to the commitment to a deterring function of the capital punishment, considered a mean to reduce the crime rate. Peeremboom’s argument links the limitation of rights to the level of development that has been reached. It should consequently follow that the justification to limit rights and liberties in economically developed countries would not be valid while the developing countries could tolerate or justify restrictions due to the level of development. There could therefore be different levels or standards according to the level of economic growth. In fact, Peeremboom argues that: ‘the government may still impose more restrictions on civil and political rights than do economically advanced, politically stable, Western democracies’486.

What seems to be missing in this line of argument is a demonstration of the links between economic growth and rights. Peeremboom points out that many human rights may be restricted if the restriction is provided by law, for a legitimate purpose, necessary and proportionate. The restriction may be different in different countries. But even accepting such differences are the restrictions imposed by China necessary? To some extent, for Peeremboom, the response turns on assessments of how stable China is487. Even not agreeing with Peerenboom’s argument488, it seems useful to synthesize the views about the sustainability of Chinese growth, as expressed by political theorists.

The economic boom that China experienced in the last decade an a half was arrested only in 1997, due to Asian economic crisis and in 2008, due to the global economic crisis. Nevertheless, questions about the sustainability of Chinese economic growth have emerged. Some regard the sustainability of the economic growth as intertwined with prospect of democratization. On the other side, there are different predictions about the probable political results of an economic slowdown. The current debate among scholars about the future development of the Chinese economy and its policy is lively, both outside and within China. The Chinese political and institutional future is considered in one way or another dependent on how the Chinese economy will be restructured after the global economical crisis, especially after the year 2008, as economic development is ceasing to be a source of legitimacy for the CCP, while nationalism appears ready to take its place. The Chinese institutional path has been very different from that of other communist regimes in the world489. This makes

486 Peeremboom (2002: 504).

487 Peeremboom (2006d: 431). See also Chen (2006: 504).

488 See discussion in Chapter V below.

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Chinese experience unique and makes the predictions about future development all fallible, because no existing model can be entirely applied to China’s future.

There are three main hypotheses on this issue: democratic transition, economic and political collapse and authoritarian resilience. Since the evidences are conflicting and as well the evaluation of the same evidences can lead to conflicting results, scholars use a kind of selective argumentation trying to emphasize some arguments while underestimating others to sustain their hypothesis. The first hypothesis, mainly supported by “overseas Chinese democrats”, optimistically affirms that economic development is not sustainable and the political and the institutional set will, in a decade time, change towards democracy. This idea is based on the growing discontent and criticism of the citizens towards the government. The unpopularity of the party is caused by the negative effects of economic development, for example huge income inequality and heavy taxation; wide spreading corruption among party members; unpopular policies like the birth control policy. The CCP is also loosing the capability to enforce its own regulations due to the reduction of party penetration in the society490. In sum, the capacity of the government is declining and the leverage of appealing to economic development is loosing its strength. In addition to that, some scholars talk of “qualitative transformation” of mass movements: in their opinion protests are not anymore driven from above by the party, instead they have acquired autonomy and self strength, maybe enough to oppose politically meaningful alternatives against the party491. The main counter-argument is that the protests and the same consciousness of rules are caused by an unchanged mechanism of top-bottom influence driven by the party. The active engagement of the society is always authorized by the party-State492. For example, the strategy used by Jang Zhengmin has been harsh repression of movements capable of collecting support in different social strata and regions, and tolerance towards localized and circumscribed phenomena. Another example is the competition for control over the process of cultural reform during the 1930s and 1940s, being cultural reform a contested instrument for attaining political legitimacy and power within the new order of the Guomindang493. The optimistic position is criticized as wishful thinking because discontent and critics of the government by the citizens may be a signal of the will of a cleaner single party rule, following Singapore and Hong Kong models, instead of leading to a change towards democracy494. Another counter argument is that many citizens would be

489 According to Overholt (2004) the reason why Chinese path differs from that of other countries facing similar challenges is that Chinese government purports a process of gradual reform and opening, demonstrating an ability to ‘form a workable leadership consensus regarding its most important problems, to implement solutions in the face of great political and social stress, and to overcome the stress by delivering large benefits for most of the Chinese people’.490 See Perry (2007: 20). See also discussion above on the erosion of the capacity of the party to control Chinse society.491 Walder (1992); Perry (2007: 18).

492 Perry (2007: 21).

493 Friedman (2002: 151-194).

494 Moreover, some consider democracy not sustainable for China. See, Li, Fann (2006).

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suspicious about democracy because of the deep rooted Confucian paternalistic idea of policy, combined with the idea that China is not developed enough to be a democracy. According to this argument, the uncertainty of the process of change and change in itself appear to the populace as much more fearful than the present situation495. Lastly, Chinese common people would be reluctant to take part in political discussion or action496 (that is a deeply rooted attitude of Chinese people in general but it is also a heavy mark left by the Cultural Revolution and the Tian An Men massacre497), and also, the emerged middle class is less radical and unwilling to challenge the government, instead is wanting to protect its own interest and preserve what it has already acquired (property, income and so on)498.

Another theory is that of the total economical and political collapse. This position holds that economy is not sustainable and the CCP will loose the basic ability to control the country. No political subject will be able to maintain order or to sustain the democratization process. This will lead to social unrest and anarchy. Arguments against this hypothesis are that the party holds the monopoly of coercive means, and that is a guarantee for control maintenance, even though it is uncertain if the People’s Liberation Army is going to remain absolutely loyal to the party. Also, if the situation will degenerate, people’s reaction could be to rely on the existent certainty of the CCP, and thus increasing its power. If the CCP maintains its image to be the only subject capable to maintain basic order, the economic collapse can signify the revitalization of CCP. This idea is historically consistent: for example the starvation in the 1960s did not bring down the CCP.

Authoritarian resilience is another hypothesis, suggested for example by Andrew Nathan. According to this position, the economic crisis can be faced and overcame. Despite its boom, the Chinese economy is still underdeveloped: more than half of the country has yet to be urbanized and this is a potential for future economic growth. Chinese economy, according to this view, is still capable of growing constantly and achieving higher level standards. So far, the process of privatization has been driven in such a way to avoid the negative effects that it had caused in the former Soviet Union, Central Europe and the Baltic area. The way in which the remaining state owned sector will be privatized is both an economical and political challenge and will have important consequences for China’s future economic development and political cohesion499. According to Walder the most probable path of political change is ‘a version of the principles employed in the governance of post British Hong Kong’, that will most likely evolve into a ‘stable system dominated by a single party’ rather than into a multi-party system. Cheng Li’s argument is that current social unrest fosters,

495 Perry (2007: 8).

496 The research by Nathan and Shi (1993, and replicated in 2000) strongly disconfirms these opinions about the attitude of Chinese people towards politics, especially in the cities and costal areas citizens are more assertive and want to cooperate in public decision making.497 See Chan, Che-po (1996).

498 Cai, Yongshun (2005: 798).

499 The same opinion is expressed by Walder (2004: 195).

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rather than weakens, CCP leadership500. The political elite need the obedient cooperation of state bureaucracy (most of the cadres are party members) and also of the people that work outside the bureaucracy. These groups of people are the holders of real power, therefore, if they are going to keep their loyalty and discipline to the party, economic and social troubles can be managed by the CCP itself without shifting to a different political organization of power501. The CCP has successfully institutionalized a method of selection of the new power elites but factionalism and regionalism remain high challenges for the tenure of the CCP’s rule. As already mentioned, there are signals of a change from vertical and central authoritarianism to horizontal and fragmented nationalism: power centres are multiplied. According to Elizabeth Perry, the party should keep the capability to mobilize people in adherence to the policy objectives to create unity and cohesion among the population in the name of national spirit. Certainly, the dynamism of Chinese economic growth draws on the network of social relations502. These relationships are often politicized by the government503. The social relations harmonized with capitalism constituted a common core supporting the economic development and operated outside the institutions.

However, the commitment of the population for a peaceful raise of the country is not only part of the rhetoric of the party, but constitutes a widely shared value among the population.

500 Li, Cheng (2006: 3).

501 Walder (2004: 197).

502 See discussion above in the present Chapter.

503 The combination of the role social networks play in China, ascribed to the particular way Confucian emphasis on family and kinship has been embodied in the everyday life of Chinese generations overtime, associated with the elements of capitalism has been called Confucian capitalism. Confucian capitalism emphasizes the importance of reputation in network formation and the elaboration of mechanisms for creating harmony, and considers the company as a family-like community. See Walder (1986).

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CHAPTER V

THEORIZING ABOUT RIGHTS IN CHINESE CONTEMPORARY JURISPRUDENCE

1. Jurisprudence in an authoritarian state.

An “authoritarian regime” is a political system in which the government concentrates the political power in an authority not responsible to the people, or a system in which pluralism is limited and the political élite is not accountable for its actions504. In authoritarian regimes, the high concentration of power does not eliminate the social and political rival groups. The qualification of People’s Republic of China as an authoritarian regime is controversial. It is sometimes defined as a mild-dictatorship, but nevertheless it does not possess the elements qualifying a totalitarian state. First of all, it is not an absolutely monistic system. In fact, it possesses a degree of pluralism and “elements of a legally recognized society”505 in a context where the state power and the administration are monopolized by a single centralized power. Chinese political élite appears to be bound by the “value of state order and sovereignty”, strengthening the symbolic-representative role of the state, rather than identifying with it. The structure of the single party parallels the structure of the state organization506 but does not fully coincide with it, while in a totalitarian state the state apparatus is just an empty structure used by the power holders. Lastly, “authoritarianism is essentially conservative” but does not seek emotional mass consensus to legitimate power like totalitarianism507, and this appears to be the case in China.

The jurisprudential debate in authoritarian regimes suffers of the limitations imposed upon public discourse, such as: restriction of the scope of scholarly discussion to the topics which do not pose a threat on the regime; pressure upon scholars to set up, formulate, and ground their arguments in a way that supports the broad political action and expresses ideas fostering the legitimacy of the regime. However, jurisprudential discussion seems to be highly significant in order to understand the nature and significance of human rights in contemporary China.

After the foundation of the PRC jurisprudential speculation have been closely influenced by the changes in the official ideology and the development of institutions508.

504 Linz (2000: 156-157).

505 Stawar (1973: 7).

506 Lubman (1999); Gries (2004); Lieberthal & Oksenberg (1998).

507 Forti (2005: 53-54).

508 Chen (1993) proposes segmentation into four periods of the history of legal philosophy in the PRC: from 1949 to 1956, initial development; 1957-1965, relative collapse; 1966-1977, complete collapse; 1978 onward, rapid revival. The diffidence, suspicion and aversion towards law, initiated with the anti-rightist campaign in 1957,

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The hypothesis from which the present discussion moves is that the shift to socialist market economy constituted, though in an indirect way, an internal push towards a more sophisticated debate about human rights, and in particular, it emphasized the need for a different theoretical justification of human rights. At the same time, the change of the economic system may have caused a change in the jurisprudential understanding of the goals and values attached to law as a method of governance, and arguably the two discourses influence each other.

Chinese contemporary intellectual scene is not as homogeneous as one may imagine. In fact, it includes a variety of opinions which may be grouped into two heading: conservative and liberal scholars. The first group generally holds ideas and supports methods of governance in line with Marxist-Leninist-Mao Zedong thought, the second group is divided between who advocates a full democratization of Chinese political system, direct election of representatives in a public competition between a plurality of parties, the full recognition and protection of freedom of speech, press, association and demonstration509, and moderate positions supporting a greater degree of democratization within the single party510.

The arguments to support de hypothesis advanced above are as follows. Firstly, notwithstanding the (still penetrating) limitations upon the contents of jurisprudential discourse, in some cases the pressure exerted by legal scholars on the political leaders has been effective in provoking normative changes. For example, the concordant jurisprudential opinion has played a highly relevant role for the adoption of the principle of legality in Criminal Law and the principle of non-retroactivity of the Criminal Law provisions511 (see paragraph below).

Secondly, the nature of human rights practice is discursive, therefore the jurisprudential theorizations can be considered as antecedents for the human rights practice. The contents of the jurisprudential theorizations become part of the legal culture due to the acquisition by the positive legal system or due to their stabilized use in the judicial practice. Following a distinction drawn by Giovanni Tarello, it is useful to differentiate between the “internal” legal culture consisting of the whole of values, principles, ideologies and technical terminology distinctively used by legal

culminated with the legal nihilism of the Cultural Revolution. Legal nihilism is to be understood a severe and complete distrust towards law as a method of government. At first some elements of the soviet law were challenged and abandoned. Later on, the law and legal scholarship, with any form of legal theorizing were accused to be a “bourgeoisie form of restraint of revolutionary activities “, and abandoned with despise. Only in 1978 the law schools were again opened. Chinese jurisprudence is forming new paradigms and innovative modes of thought, and is surpassing the old paradigm of law and the state imported in the 1950s from the Soviet Union (Chen 1993).509 Among them Liu Xiao Bo, and the drafters of the “Charter 08”, a petition to the government requesting the full democratization of the system, the full recognition and guarantee of civil rights and political freedoms. Liu Xiao Bo, leader of the movement was sentenced in December 2009. He was accused of sedition and attempting on the state’s security and sentenced to eleven years and six months’ prison. The trial was not open to foreign press and the verdict was given in a very short time. Liu Xiaobo has been awarded the Nobel Prize for peace 2010. However the consequences of this international recognition seem to have worsened the condition of the reformists, rather than make them better off.510 The contemporary leadership advocates the within party reform. Lin, Gang (2004).

511 Keith and Lin (2005: 244-245).

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professionals (legal scholars, judges, legal practitioners), and the “external” legal culture, which instead refers to the ideas about law held by laymen, the public opinion upon law held by people who are not legal experts. Tarello defines the “legal culture” of a country as “l’insieme delle tecniche interpretative utilizzate dagli operatori del diritto, sia pratici che teorici, e l’insieme delle ideologie relative alla funzione del diritto che tali tecniche sottendono”512. Each category of legal practitioners can be distinguished according to the way the legal profession is structured and organized in each national legal system513. In the specific case of China, the role of jurisprudence gained relevancy and authoritativeness in the last three decades.

Moreover, legal scholars are to some extent capable of influencing what Tarello calls “external” legal culture, the opinions about the law held by laymen. In fact, very important and controversial judicial cases, or cases of national interest, are debated in public through the Chinese media. In this cases the debate among scholars and their contrasting reasons, opinions, arguments and perspective on the disputed matter resonate among the public. The general public support for a scholarly position adds strength and legitimacy to it, according to the socialist idea of justice.

A further argument to support the idea that the shift to market economy has sharpened the degree of penetration of complex jurisprudential syntheses regarding rights is that the high complexity of the problems arising in the context of a market economy requires specific technical skills to be solved. For this reason jurisprudential synthesis are taken into account in policy making and normative policy activities.

In the opinion of some Chinese scholars, the reasons why Chinese jurisprudence has been unable of guiding the development of the legal system of China, rather than being due to the limitations and censorship of the party, are instead due to the adoption of what has been called a “modernizing model”, which raises the ideal of a Western developed society as the model for Chinese development (see chapter IV above). This model is accused of providing indirectly a “Western legal ambition prospect” for the development of the legal system of China, and preventing Chinese jurists from realizing that they should instead adopt an attitude of “Chinese legal ambition prospect”, that is, an attitude that allows to examine and take in due consideration Chinese old ideas about law, which appear to be significant in the current environment, and set a Chinese agenda of goals taking in due consideration the specific circumstances in which China is now and not imitating an ideal path set down for different times, circumstances, intellectual and cultural environments by others. The inability of finding creative synthesis to carry on Chinese legal reform with resources coming from the Chinese intellectual tradition, but taking also into due consideration the resources of traditions that were not elaborated in China seems to

512 Tarello (1998: 24)

513 Ivi: 24-25). The distinction between internal legal culture and lay legal culture was already made by Friedman (1977).

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represent the main reason for the failures of legal reform in the self perception of Chinese scholars514.

The role of Chinese jurisprudence, which has been rarely duly acknowledged by the existing literature on the matter, is related to the justification of the shift to a capital-like economic system. This process has occurred in two steps or phases: first, the recognition of the benefits inherent in the conceptual apparatus and the structure of the capitalist economic regime, and second, the justification of the compatibility between socialism and such kind of economic regime. However, it remains a remarkable difference in relation to the goals towards which the system is (or claims to be) oriented: while the capitalist system would aim at augmenting the well being of the individuals, the goal of socialism would be to guarantee equality in the enjoyment of the goods. The above has been acknowledged by Keith and Lin, who affirm that the role of Chinese jurisprudence has been fundamental in the contemporary legal reform because it founded its conceptual basis. Moreover, they argue, Chinese contemporary jurisprudence is undertaking the task of elaborating new theoretical constructions to effectively integrate the human rights discourse in Chinese juridical system and justify their protection. Part of the Chinese jurisprudence, according to Keith and Lin, would be committed to elaborating a theoretical frame for the idea that the ultimate justification of the government by law is the guarantee of human rights and freedoms515. During the ’90s the best definition of the idea of human rights was looked for in Marxist thought, since a “socialist society should be a society in which human rights are taken into consideration and respected”516. To be accepted in the Chinese intellectual environment the conceptualization of human rights has been the subject of adjustment, reshaping and refashioning. This process of reshaping associated with the recognition of the legitimacy of human rights claims is a new process affecting the whole legal system, because it concerns institutions of both public and civil law.

The formal provision of human rights in the constitution and in law has been represented as a “pragmatic adjustment” due to external and somewhat compelling factors, related to issues of international political accountability. However, these changes are in part the result of a conscious and serious effort of the Chinese jurisprudence, felt as an internal exigency rather than an external imposition, not only to elaborate a suitable idea of human right for the Chinese environment, but also to synthesize it with the legal categories (some of which needed to be reshaped too) and the meta-legal basic assumptions.

1.1. Salient theoretical changes in Criminal Law and Criminal Procedure Law.

The analysis of the theoretical changes concerning the understanding of the nature, function and purpose of Criminal Law and Criminal Procedure Law is aimed

514 Among others: Chang Wejen (2009); Chen (2004); He (1999).

515 Keith & Lin (2001: 237).

516 Interview to Cheng Liao Yuan, legal philosopher and leading contemporary Chinese intellectual. Chongqing, December 2009.

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at showing how the changes in economic system have interfered with Chinese legal theorizing about rights and, secondly, to demonstrate how the jurisprudential debate has been capable to foster legal reform.

In the area of criminal law, respect for individual rights is particularly important since it concern the exercise of the coercive power to limit personal freedom. For centuries, criminal law represented the image of Chinese imperial official law so that scholars doubted the existence of a civil imperial law517. Violation of criminal law dispositions was considered a disturbance of public order, and was punished with

harsh penalties (xing 刑 ). Since PRC founding in 1949, Criminal Law518 has been

used as an instrument of class warfare, and for defending ideological orthodoxy against “counterrevolutionary crimes”. Instead, 1997 Criminal Law519, now in force, has the fundamental aim of protecting economic and social order, as reflected in its structure520. The 1997 amendment was promulgated in order to answer to a number of problems. First of all, there was the need to discipline the new crimes generated by the economic reform. The III title of the old law was dedicated to “counterrevolutionary crimes”, and it has been substituted by the provision of “crimes endangering socialist market economic order”. Furthermore, the title VIII has been added incriminating embezzlement and corruption, as a sign of the high priority attributed to control over public official’s behaviour.

As an indirect consequence of the remarkable social changes due to the economic reform, Criminal Law needed new justifications521. According to Keith and Lin, the main theoretical innovation would consist of a new understanding of the purposes, methods and principles of Criminal Law. The old purpose was protecting and supporting the exclusive state’s interests, while the new one is the balancing of interests between the state, the society, and the individual versus the state and the judiciary. Keith and Lin argue that the reform was strongly advocated by the intellectuals and by the public security administration itself, asking for the rationalization of the whole system of criminal law. The unprecedented attention attributed to the protection of rights and interests of the citizens is due to the political consciousness that Criminal Law could not be used anymore as a ductile and flexible tool to discipline the behaviour of the new economic actors, for the reason that this would have undermined predictability, needed for economic activities. In the past, the definition of what behaviour had to be qualified as criminal behaviour was

517 Bodde & Morris (1967). The thesis has been countered by recent studies, see generally, among others: Cavalieri (1999: 67-91); Ajani & Serafino & Timoteo (2007: 47-72);; MacCormack (1990).518 In several respect the Chinese Criminal Law imitated Soviet Criminal Law. See Berman (1970); See also Berman & Cohen & Russell (1982: 238-258).519 These laws are structured and function like a code of law that contains the full discipline for the subject. Cavalieri (1997).520 For a description of the structure of Chinese Criminal Law see Cheng A. Y. H. (2004b); Cai, Dingjian (1997: 213-218).521 Clarke and Feinerman (1996: 134-154).

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‘accomplished outside the Criminal Law by reference to political exigencies or generally accepted standards of morality. There is little perceived danger in allowing government officials to impose their own standards of morality, since Chinese state ideology does not accept the legitimacy of multiple standards of morality’522. The above described practice sharply conflicts with the need to predict the consequences of one’s behaviour, a key element for developing a market economy523. Therefore, within the jurisprudential debate, the principles of equality in law, legality524, clarity, precision, non retroactivity, and proportion between crime and offence acquired preeminent value525. This not always corresponded to political public action. For example, in September 1983, the Second Session of Sixth National People’s Congress called for strict sanctions for economic crimes (speculation and profiteering). Through a condemnation and a persecution on “spiritual pollution” the leadership tried to maintain control over the entrepreneurial implications of spurring economic growth. It was in effect a campaign against corruption which implied vague formulas to strike on corrupted entrepreneurs526.

Another seemingly contradiction to be noted here is that, notwithstanding formal acceptance of the principle of legality and proportionality in Criminal Law, in the transition to socialist market economy the crimes punished with death penalty have been increased in number, and the death penalty was provided as sanction for crimes having economic and financial nature527. According to international law standards, the death penalty should not be used to punish economic crimes, because the offence to public economic order would not be serious enough to justify such a severe punishment528. However, on the contrary, the death penalty played a role in the foundation of the new socio-economic order529. This indicates the permanence of an instrumental conception of law as a method of social control, the peculiarity of the usage of death penalty for political purposes530, and constitutes a clear example of conflict between human rights protection and the legal means chosen to maintain social order.

522 Ivi: 137.

523 The above-mentioned practice also contrasts with an increasingly perceived discontent with the lack of recognition and space attributed to political pluralism. See for example Bejesky (2002-2003: 1-40).524 Keith & Lin (2001: 206).

525 Li Zhenghui & Wang Zhenmin (2005).

526 Potter (2003: 119).

527 In 1982 the Standing Committee of the National People’s Congress extended the provision of the capital punishment for new categories of rights and among them: smuggling; speculation; selling drugs; stealing and exporting archaeological find having high cultural value. Later the death penalty has been extended to the crime of production and selling of adulterated goods causing serious harm to health or the death of the consumers. Keith & Lin (2001: 181, 225). See also Lu & Miethe (2009); Lu & Zhang (2005: 367– 376); Hu, Yunteng (2002: 247-275).528 Hood (2002); Rutherford & Hodgkinson (1996).

529 Keith and Lin (2001: 225).

530 See Consiglio (2008).

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The 1979 Criminal Procedure Law has been modified in 1996. The revision has been grounded upon a new conception of the function of criminal procedure law and its relationship with the provisions of criminal law531. A preeminent and absorbing role was in the past attributed to substantive provision of criminal law, while criminal procedure law was considered the instrument or the mean to apply efficiently substantive criminal law. Chinese jurisprudence elaborated a theory in order to change the conception and the role attributed to the two branches of law in discussion. This theory has been called the theory of the “double function” or “independent function” of substantial and procedural criminal law. The justification of Criminal Procedure Law has been indicated in the need to protect human rights532 in the pre-trial procedures and during the process. In the light of these new theoretical premises, jurisprudence has successfully suggested the introduction in the amended law of some of the elements of presumption of innocence. In the past, the decision about guilt or innocence of a suspect of a crime was decided outside and before the trial, during the investigations.

Notwithstanding formal legal innovation, respect of the new provisions is not generalized for two main reasons: firstly, practices violating rights are deeply rooted and difficult to eradicate; secondly, mechanisms to check and control the public security organs which should apply those measure have not been provided in effective ways533.

For example, the law forbids arresting any citizen without the approval or the mandate issued by the procuratorate (which has functions corresponding to those of the public prosecution) or without a decision has been issued by a people’s court. The arrest should be carried on by public security organs only. Unauthorized detention, privation or limitations of personal freedom of any citizen are legally forbidden. Moreover, Criminal Procedure Law states the maximum length of the trial534. The “custody for investigation”535 (shourong shencha) was in practice a way to avoid the limits provided by the 1979 Criminal Procedure Law, concerning various forms of coercive measures536 applicable before the trial.

Custody for investigation was not formally provided by law. The purpose was to keep a person suspected of a crime (committed or tempted) if the identification of the person was impossible and, at the same time, there was an actual risk of escape. The investigations could have been carried on for a maximum of three months. The public security organs systematically violated the subjective and time limitations for the

531 See Huang, Yixiang (1986).

532 Keith and Lin (2001: 183).

533 One of the currently debated reform is in fact that of the Chinese Police Regulations.

534 Li, Zhenghui & Wang, Zhenmin (2005).

535 Custody for investigation was not provided in the Criminal Procedure Law, being rather an administrative measure.536 Summon (junchuan); assisted waiting before the trial (qubao houshen); house arrest (jianshi juzhu); detention (juliu) and arrest (daibu). Keith and Lin (2001: 189).

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application of that measure, in the absence of any formal surveillance by a higher organ.537 This “legal quagmire”538, as it has been defined, was abolished in 1996 with the promulgation of the amendment to the Criminal Procedure Law. Nevertheless, the need of relying on flexible measures to exert control and maintain social order, considered by many as necessary in the context of reform and opening,539 has been weighted against the protection of individual freedom. The balancing resulted in a compromise: on the one side, custody for investigation was officially banned, but, on the other side, the 1996 Criminal Procedure Law lowered the standard of evidence sufficient for the arrest to be lawful540 and widened the categories of people that could be arrested before the end of the trial541.

Notwithstanding the good intentions leading to the reform and the significant theoretical innovations which supported it, Criminal Procedure Law remains substantially a ductile tool, especially in sensitive cases542.

1.2. The abolition of analogy in criminal law.

The need to guarantee predictability in the new context of market economy played a fundamental role in the debate upon the abolition of the use of analogy in criminal law. Analogy is used when the law does not regulate a certain case543. Since formal legal provisions are lacking, an existing and explicit disposition provided for a case sharing some relevant similarities is applied to the case. Analogy was used in China544

for centuries to create and apply law (as it emerges by the analysis of the imperial codes and collections of cases – see above chapter III). The method of analogy was abolished by the 1997 reform of the Criminal Law and just for criminal matters. The debate preceding the abolition was between, on the one side, positions supporting analogy with the argument that it was necessary to maintain a strong social control even by punishing behaviours not qualified as crimes in law in the special circumstances of market economy, and, on the other side, views arguing that market

537 Clarke and Feinerman (1996: 143-144).

538 Ivi: 143.

539 See for example the declaration of the Public Security Minister before the promulgation of the 1996 Criminal Procedure Law. Keith and Lin (2001: 190).540 Article 60 of 1996 Criminal Procedure Law indicates as a necessary and sufficient standard of proof for arrest “the existence of some evidence of criminal facts”. Article 40 of 1979 Criminal Procedure Law provided instead that “the main facts concerning the crime to be clarified”.541 Art. 61 of 1996 Criminal Procedure Law: suspects of “going from place to place committing crimes, or who repeatedly committed crimes” or that “associated with others to commit crimes”. For the second group of people the maximum period of detention has been increased from 7 to 30 days, contrary to the international standards on the matter. Keith and Lin (2001: 191). This provision was considered necessary to answer new typologies of social deviancies created by the new market conditions.542 As it was the case in the 2009 trial resulted in the condemnation of Liu Xiabo and in the 2009-2010 trials for the Chongqing crackdown on mafia criminals.543 The nature of legal analogy is debated in legal theory. See Bobbio (1994); Gianformaggio (1987); Guastini (1994); Velluzzi (2006).544 See Chapter III above for an explanation of the functioning of analogy according to the imperial codes.

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economy activity needs predictability while the application of analogy is at odds with the idea of certainty of law. Another fundamental argument supporting the abolition of analogy was the questioning by part of the jurisprudence of the idea that the interests of the individual, the state and the society are fundamentally coincident545, which was a pivotal principle for the socialist conception of law and state.

2. Chinese jurisprudence debating about rights.

After the PRC founding in 1949, Chinese jurisprudential reflection has been strongly influenced by the Soviet theory of the state and the law, in particular by that elaborated by Vishinski. In the 1990s the jurisprudential paradigm shifted: the general theory of law elaborated in the Soviet Union was abandoned in favour of other Western (European and American) influences. The last evolution of Chinese jurisprudence may be termed as “cultural consciousness”: intellectuals and legal scholars attempt to “catch up with world standards, overcoming impulsive style, carefully studying the accumulation of human political civilization and legal culture.

In the words of Cheng Liao Yuan 呈燎原: “Only following its own way by adhering

to the theory of socialism with Chinese characteristics, we can promote the new development of legal theory in China”.546

The syntheses and elaborations by Chinese contemporary jurisprudence still lack general coherence and systematic character. Moreover, notwithstanding what have been said above, political control over public debate is still heavy. Some of the most relevant and innovative ideas, especially about human rights, are silenced, minimized or delegitimized. The extent to which jurisprudential conceptualizations are accepted and integrated in the normative system is due to a mixture of elements among which the personal authoritativeness of the author of the conceptualization, the degree of independence from Marxist ideology, the degree of autonomy from realistic consideration of bureaucratic policy. However, an investigation on Chinese human rights jurisprudence represents a contribution to comparative research and dialogue.

From late ’80s onward jurisprudence upon human rights has experienced a significant growing. The impulse to the studies on human rights was strategically given by the CCP’s leaders in order to be able to respond to the international critiques addressed to China’s human rights practice.

The salient theoretical changes are constituted by the relevance attributed to the notion of “rights”, the acknowledgment of the “pluralization of interests” and the criticizing of the theory of the dialectical unity between “duty” and “right”.

The socialist theory of law denied the possibility of conflicts of interests between individuals and between individuals and the state. The ideological spell silenced the conflict, postulating a coincidence between the interests of the state and those of the

545 Keith and Lin (2001: 207-214).

546 Content of the lectures on philosophy of law by Professor Cheng Liao Yuan held in December 2009 at 重庆大学, Chongqing University.

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individuals. Therefore the purpose of socialist law was regulating the distribution of functions among public organs rather than attributing rights to individuals and legal persons547. Moreover, the ideology of socialist state denied the diversification of social relationships548. Society was conceptually represented as divided into clearly defined classes (at least theoretically). Every class was considered to be the bearer of a specified interest.

In the past theorizing, the notion of class was the premise of social justice and shaped its content. Every class was considered to possess a specific interest. The justification of political actions was grounded upon an officially sponsored and explicitly stated idea of social justice. Outside the theoretical frame of the communist ideology, which has been substantially challenged, the notion of “class” in representing society has lost its explicative power. In the representation of society, the notions of “rights” and “interests” have substituted the notion of “class” (even if not formally)549. Jurisprudence’s major task is therefore to classify within legal categories the “unfamiliar pluralisation of rights”550. Chinese contemporary jurisprudence conceptualizes rights as broad categories. Among these categories there is that of human rights, which are considered basic rights (see definition below). The official position supported by the government is that human rights are not personal rights. This is considered to be an abstract idea (this qualification has a negative connotation, see chapter III, paragraph on the notion of person). Instead, human rights belong to the collective; they are rights of a community. The collective rights of subsistence in any case have to prevail upon individual rights.

Contemporary Chinese debate includes various ideas of social and political pluralism and a range of views about the cleavage between state and society. Each version of these ideas rejects the strong theses of the unity of all interests and the unity of state and society. As Yijiang Ding notes, the rejection of the unity theses represents an important shift from the political orthodoxy of the Cultural Revolution period and before. However, rejecting strong claims of unity does not entail accepting the claims of the conflict of interests, which would only be resolvable through political competition. Instead, the norm toward which many scholars are now working is one of consultation, coordination, and harmonization.

As mentioned above, the main issues debated by Chinese contemporary jurisprudence with regard to theory of rights and human rights, are: the relationship between rights and duties551, discussed above, and the theoretical role and relevance that the notion of right should play in the broader framework of Chinese theory of law, which will be discussed now.

547 Berman (1965: 286-289).

548 De Vergottini (1998: 103).

549 Keith and Lin (2001: 1).

550 Ivi: 3.

551 See Chen, Albert Hung-yee (1986).

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The debate about “rights orientation”, according to Ge Hongyi, “is one of the most important and heated theoretical controversies in the legal field since the third plenum of the 11th committee” in 1978, since it represent “a discussion about how the legal

field should face the future”. Rights552 (权利 quanli) and duties or obligations (义务 yiwu), in the opinion of Chinese legal scholars constitute the “most fundamental categories in legal theory and form the axis of the whole system of jurisprudential categories”553. Different schools disagree about what category should be considered more fundamental, if duty should be attribute priority over rights or vice-versa, and, as a consequence, if socialist Chinese law is or should be right-oriented or right-based or instead duty-oriented or duty-based.

Chen554 distinguishes three schools of thought: the first holds the view that rights and duties have the same importance; the second considers rights as primary over duties and the latter considers duties as having a primacy over rights.

The thesis of the primacy of rights over duties, pre-eminence of rights over duties is theorized by Zhang Wenxian555 and Zheng Chengliang556.

Zhang Wenxian qualifies both “rights” and “duties” as foundational jurisprudential categories557, that is, the basic concepts used in law to regulate human behaviour and social relationships. “Rights and duties constitute an axis around which all legal phenomena, actions, areas of law revolve”. Legal rights are considered “ends”, while duties are the “means” to reach these ends. Therefore, law is considered right-oriented, and this idea is both a prescriptive and descriptive claim referred to the system of law as a whole. In fact, even if the specific dispositions of a legal system may either attribute rights or prescribe duties, the system is considered right-oriented in the sense that the system as a whole has its axis, point of departure or centre of

552 There are several translations of the term ‘right’ used in the Chinese context: daoli (pattern of the way) which represent a moral principle: liquan, which originally meant ‘economic control’ but was later used to mean ‘economic right’ by the self-strengthening movement in the middle of XIX century. The most accredited translation of the term right is quanli 权利 . The first character quan i means ‘authority’ or ‘power’, while the second character li means ‘benefit’ or ‘profit’. ‘Human’ is translated as people 民 min, or citizen, rather than as individual. Human right has been literally translated as ren quan 人权, or ‘human power’. For a detailed account of the history of the concept of right and the main translation of the term in Chinese history see Angle (2002: 1-5; 101-258).553 Chen, Albert Hung-yee (1993: 123).

554 Ivi: 128-133.

555 .Zhang Wenxian is the initiator the North-eastern School of Thought, which gathers scholars mainly from Jilin University in the North of China, advocating a right-oriented jurisprudence. Ivi: 133. See Zhang Wenxian (1990a; 1990b)556 Zheng Chengliang belongs to Zhang’s same school, Jilin University. (Zheng Chenglian 1991)

557 Zhang classifies jurisprudential categories in general, basic and foundational. The degree of abstraction increases from the first to the latter. The first include “citizen” “legal person” “crime” “breach of contract” and other general notions in any branch of the law. The nature of basic categories is more abstract compared to the general category, while the foundational ones form the core of the legal system. Zhang Wenxian 1991and Chen Albert Hung-yee (1993: 126).

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gravity, in the notion of rights558, even if the number of dispositions prescribing duties may overcome that of the dispositions attributing rights. Zhang disagrees with the theory of law understood as a set of rules that according to which legal norms are the foundational elements or categories of jurisprudence. Understanding law as a system of rules, according to Zhang, would imply treating people as objects and not as human beings who are active subjects, who use the law to realize their ends. The significance of this position lies in the fact that it puts particular emphasis upon the capacity of human beings to be self conscious, autonomous, self creating and self disciplining. A further point deserving mention is that, in Zhang’s opinion, the structure of the state is set up to secure rights and therefore all the state powers must ensure the realization of rights.

Zheng Chengliang shares the assumption that law is rights-oriented. One of the crucial theoretical points for scholars like Zhang Wenxian and Zheng Chengliang is the affirmation of the desirability and rightness of the instauration of a capitalist-like economic system and at the same time the upholding of the socialist theoretical framework. To understand the justification they give it is useful to recall a part of Zhang’s theory regarding the stages of legal development. Zhang individuates three theoretical phases in history (upon the premises of socialism: pre-capitalist, capitalist and socialist). The pre-capitalist period is characterized by a hierarchical division and the predominance of kinship and family ties from a social point of view, a subsistence economy, and the asymmetrical distribution of rights and duties following the asymmetrical structure of society. From a political point of view, the system was that of an authoritarian rule, while from a legal point of view it was clearly duty-oriented. In the capitalist society, instead, the legal system is right-oriented. Nevertheless, only in the socialist system “the masses are full subjects of rights” because the distinction between the means of production and workers is overcome. With this argument Zhang affirms that the full enjoyment of rights can only be realized in the socialist society. The socialist system is considered superior to the capitalist, because it would be better capable to realize the principle of equality among citizens. The distinction in three periods contains an advocacy of socialism and as well a hint towards the acceptance of the rights-oriented approach for the socialist society. The rights-oriented approach is indicated as the only way to “liberate people from China’s feudal and authoritarian heritage, which emphasized the supremacy of imperial and official power and the people’s obligation to obey. Rights orientation means that people are masters of social and political rights and are not merely objects to be administered”. Zheng Chengliang shares the opinion that legal history can be ideally divided into three periods, and adds that the legal subject was created only in the capitalist societies through the recognition of the principle of equality in law. Before the creation of the universal subject in law, every social position entailed a different legal treatment, and the “role or actor with universal significance” is a product of capitalist societies. Zheng argument that socialism is not against the rights-oriented form of law developed under capitalism, but only to the division of society into classes. The exploitation of rich

558 Chen (1993: 125).

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over poor and their oppression render illusory the rights promised by the capitalist legal system559. Therefore Zheng Chengliang identifies the superiority, the peculiar feature of socialism in its alleged overcoming of the division of the society into classes, of exploitation and oppression. The capitalist system instead promises rights which are illusory. Lastly, Zhang Wenxian, among others, theorizes the existence of a link between the development of a commodity economy and the Chinese path towards the development and implementation of a system based on the rule of law560. This link is founded upon the idea that legal rules are necessary medium for commercial exchanges between free and equal parties. Freedom, equality and rights are considered the hallmarks of a society regulated by a system of law561. And there is the conscience that the rule of law in the economic arena is linked with the rule of law in the political life.

A second contemporary Chinese school on rights is composed by legal scholars who argue for an equal emphasis on rights and duties562. Considering each citizen as a rights bearer and a duty bearer at the same time and equally, it is assumed that the symmetry of the two can only be realized under a socialist system. The didactic role assigned to the law, considered the instrument for promoting rights consciousness is associated to the orientation of law. While the right-oriented school assumes that the law should be right-oriented to promote rights consciousness among its subjects, this school disagrees. Some categories of people, such as the youth or the cadres, should instead focus on their duties. The theoretical premises of this school are the Marxist ideas that the law depends on the economy and the existence of a dialectical unity of rights and duties.

The third main school about the orientation of law holds that the law is constituted of duties563, rather than rights. Since the purposes of law are assumed to be the realization of social control and maintain the stability of social order, law has to impose obligations. Duties are imposed upon the government and the citizens so that the state can control the society and the society can control the state. Law here is understood as the recognition and affirmation of certain social practices and of the expectations generally entailed in social relationships, especially those of the government towards the society. In this bidirectional relationship the law should impose obligations upon those who can “damage” the relationship while there is no need to confer, to attribute rights explicitly, because those enjoying customary rights564 under the relationships with the government will continue to enjoy and

559 Ivi: 127.

560 Further investigations should be carried on to better understand what precisely is meant here by the expression “rule of law’. The debate upon the rule of law in China has been very vibrant in the last three decades, with a variety of conflicting opinions. On the matter see Cheng Liao Yuan (1989). See also Peeremboom (2004) for an analysis of the four main interpretations of rule of law in China. For an analysis of the notion of “judicial independence” and its relationships with rule of law, in the light of Chinese experience see Peeremboom (2010). 561 This idea is shared by Zhang Wenxian, Zhang Buyun. Chen Albert Yung-yee (1993).

562 Among them Zhang Buyun and Guo Yuzhao.

563 Zhang Hengshan holds that law is duty-oriented.

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exercise these rights as long as the government does not expressly prohibit that. In the control relationship of the state with the society, the effective way to restrain the action of the government is not to assign rights to the citizens but to impose negative obligation on the government. In contrasting phenomena like government corruption and in preventing government mistakes and abuses, obligation-imposing norms (to control the behaviour of officials and to set the procedure for decision making) are more effective than norms conferring rights to the citizens.

The last position, held by Sun Xiaoxia, reconciles the three points of view described above, stating that they are in fact related to different dimensions of the legal experience: positive law for the duty-oriented theory, law as it ought to be for the rights-oriented theory and the role of law in society, for the view attributing equal relevance to rights and duties. According to this last school, while the “duties-oriented mentality fetters people’s thought and action”, the right-oriented view reflects the “objective requirement of the development of the socialist commodity economy and democratic politics”565.

3. Chinese-Marxist jurisprudence on human rights: core ideas.

In Elster’s account, Marxism-Leninism, with the twin doctrines of historical materialism and dialectical materialism, is “characterized by shallow Hegelianism, naïve scientism, lack of falsifiability and a strong preference for assertion over argument”566. Elster articulates an “implicit assumption of Marx’s thought”, the belief that “whatever is desirable is feasible; whatever is desirable and feasible is inevitable”567. The version of Marxist theory adopted by Chinese scholars emphasizes scientism. The lack of falsifiability, coupled with the high value attributed to the argument based on authority, define the basic presupposition of the public debate in China, even if, the new circumstance of the market, the tenure of this system has been challenged and other arguments are attributed increasing validity compared to the argument based on authority (see chapter IV above). For Marxists, socialism is viewed as a stage in history characterized, in part, by state ownership of all capital goods and central planning of the economy. This stage in history is regarded as transitional between capitalism and the final stage of history, communism, characterized by the absence of differing social classes and the end of class warfare. Due to the Marxist derivation of Chinese ideology, during the years of the Cultural Revolution and in the following ten years, human rights have been rejected and labels as “bourgeoisie’s patent”568. Oftentimes in Chinese history, major changes have been driven from above (paradoxically, this is the very nature of “mass movements”), and

564 This view is interesting in that it seems to equate benefits, privileges, liberties or protection entailed in respected social rules with rights, while the idea of rights is precisely the legal provision which may well legalize the content of a social practice, but without this recognition the social practice is not properly defined as right.565 Sun Xiaoxia.

566 Elster (1986: 3).

567 Ivi: 3.

568 Li Zhenghui and Wang Zhenmin, (2005).

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the same happened for the shift in the attitude towards human rights discourse. In fact, at the end of the ‘80s, the CCP itself promoted and encouraged researches and studies on the topic, in order to be able to answer to the international critiques569.

The Marxist view of human rights consists of the following seven elements: the economic view of human rights; the historical view of human rights; the class view of human rights; the state view of human rights; the developmental view of human rights; the unity of rights and duties; the emancipatory view of human rights.570 The core tenants of Chinese Marxist jurisprudence upon human rights are: first, the principles of the dialectic unity of rights and duties; second, the identity of interests between the state and the individual, or their fundamental unity in an ideal synthesis. In its Chinese variant571, the identification and definition of the interests, as well as their synthesis is operated by the power holders and considered objective and legitimate (scientific). These scientific judgments or syntheses are generally considered the only criterion admitted for normative policy and for political action as well.

According to Marxist theory, rights and duties constitute a dialectical unity. The theory of the dialectical unity of rights and duties holds that every right entails a corresponding duty. They are dialectically opposed but the prevailing element is that of the duty572. This conceptualization differs from that by W. Hohfeld which sees every one of the basic elements of rights having correlatives and opposites 573.

569 Ivi.

570 Cheng (1993: 140).

571 This theory is derived by Marxist-Leninist doctrine. It sets the criteria for the just balance between the individual interests and the general needs of the State. Priority is given to the needs of the state and national harmony and the individuals are therefore expected to subordinate their needs to those of the State. This theory has never been applied in full because the interests of the individual have still been considered to some extent by the Marxist-Leninist states. Both in China and Vietnam “[i]n the mixed market-economy state is increasingly using rights-based language to balance the public good against individual, civil, political and economic rights”. Art. 38 of the 1959 Vietnamese Constitution declared that “the state forbids any person from using democratic freedoms to the detriment of the interests of the state and the people”. In Gillespie (2006: 455). 572 In the Confucian legal philosophy as well the duty imposed by social roles could be understood as “the correct action to perform in virtue of the right of the other subject “. Kim (1981: 121). In this sense, the notion of “due act”, “correct action”, or also “duty” encompass that of “right”, with an exceeding significance and moral pregnancy in respect to the notion of right as being entitled to receive a certain treatment . The predominance of “duty” in respect to “right” is considered a dominant feature of the moral history of mankind by Norberto Bobbio, who regards the idea of rights as a “Copernican revolution” in the field of morals. Bobbio regards duty and rights as correlative terms; therefore it is a matter of perspective which one should be regarded as predominant. But interestingly, the reason why the law has been first a list or codex of duties is the need of the protection of the social collective or group, and therefore a social or collective perspective on the issue, rather than a perspective from the point of view of the individual. Bobbio (1999: 432-440).573 Hohfeld individuates four basic elements called “the Hohfeldian incidents”: the right (in the strictest sense) or claim, the privilege, the power, and the immunity. Each of the above mentioned four elements is logically related to a correlative notion: duty; no-right, liability, disability. These elements can be related as correlatives or opposites, representing the whole variety of legal relationships: “the basic conceptions of the law – the legal elements that enter in all types of jural interests”. Hohfeld (1913: 26-27). The correspondence between correlatives in Hohfeld’s theory is full, which means, the affirmation that X has a right in respect to Y can be fully converted into the affirmation that Y has a duty towards X ( see Celano 2001). Hohfeld’s thesis does not lead to the exit of the possibility of eliminating the language of rights in that it is redundant in respect to the language of duties. Only assuming the conceptual and logic priority of the basic deontic modalities the language of rights can be reduced to the language of basic deontic modalities (Celano 2001).

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The articles of the Constitution prescribing rights and duties of the citizens (article 51, ss.) are modelled upon the theory of the dialectical unity, as it emerges from article 51 of the Chinese Constitution: “in exercising freedoms and rights, may not infringe upon the interest of the state, of society or of the collective or upon the lawful freedom and rights of other citizens”. This article sets a limit upon the free exercise of rights, but other limitations can be found in the preamble: the reference to the socialist spirit and socialist morality, the four basic principles as a criterion for interpreting the scope and content of rights. Human rights are provided by the law, but must be applied “in conformity with the interests of socialism and the people”. This means that “civil rights must conform to state-sponsored socio-political obligations”574.

The Chinese theory of rights inspired to Marxist ideas, affirms that the protection of human rights is guaranteed through the Constitution and the laws and considers collective rights as a progress in the understanding of human rights from the starting point of the individual rights. The idea is that the free development of each individual is the condition for the free development of all.

Since rights are considered to be linked to the level of development, and each country has a different level of development, each country has elaborated different conceptions of human rights. This argument based on the level of development matches with the relativist point of view upon human rights, which is espoused by Chinese intellectuals committed to Marxist theory. In fact, since societies have different levels of development, and consequently different conceptions of rights, the ideas about rights of a nation could not be correctly applied to other nations.

Lastly, in the socialist view, human right protection depends on circumstances; fore example, in case the state is threatened the fundamental task is to implement human rights to defend state sovereignty.

A paradigmatic theory of rights resenting of the influence of the above described ideology, but sufficiently supported by arguments, has bee elaborated by Cheng Zhonglin575. This scholar individuates the legal significance rights in the fact that an individual entitled of any right “can act according to his wishes without being interfered by others, or even ask the other people to act possibly in accordance with his wishes”. Cheng Zhonling distinguishes theoretically between rights of the person and human rights. In his opinion human rights should be equally enjoyed by all human beings. Since the rights that can be equally enjoyed, and are actually guaranteed to every human being are very few, they must be distinguished from the rights of person. While human rights must be equally provided for everyone, guaranteeing equality substantially, the rights of person are meant to differentiate people. To state what is the content of human rights the focus must be on the interest of people, determined by the means of an empirical research576. The community

574 Gillespie (2006: 455-456).

575 Cheng Zhonglin is professor of Criminal Law and Chair of the School of Law of Chongqing University School.

576 These ideas resonate with the basic tenants of the Chinese communist principle regulating political action (see chapter IV above discussion about democratic centralism).

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should meet the need of each person. Chen argues that the determination of the content of human rights should vary in different countries and in different times. The guiding principle is “not to discuss human rights without taking in due consideration national conditions and not to abandon tradition to discuss human rights”. Drawing a distinction between the national and international legal domains, Chen argues that at the domestic level human rights should take preference upon sovereignty while at the international level sovereignty should take precedence upon human rights. This is because the reason for the government to exist is to protect the interests of people so the state must respect human rights, while at the international level the principle of self-determination must be respected and it must prevail upon any other intervention. The respect of the right of self determination at the international level prevails upon the intervention of other states to guarantee the human rights of the people of a certain country. The content of human rights should consequently be determined freely by the people of each country, following the principle of self determination of peoples.577

Therefore, the content of human rights determined by the people of each country freely according to the principle of self-determination is different in every country, not because of the culture but because of the choice of the different peoples. Chen considers human rights to be absolute in principle, but relative in their realization. In case of conflict between the rights of one person with the majority, the right of that person should succumb.

The dominant Marxist view about the international role of human rights is consistent with Cheng’s position: every country has different standards of human rights. While acknowledging that there is a common human rights standard, he affirms that the area of consensus578 is very restricted and in any case it regards the very minimum level of respect for human dignity (prohibition of torture inhumane and degrading treatment). Violations of such rights violate “international law and mankind’s public morality and the international community have the right to impose legitimate sanction in response”. However, the above mentioned scholars affirm that in the case of formal subscription of an international treaty the signatory party should abide by the clauses of the convention or treaty, implementing the relevant human rights standards.

The theory of human rights elaborated by Chinese Marxist legal scholars could be synthesised and qualified as a dispute, ideological in nature, confronting the alleged characteristics and assumptions of the so called ‘bourgeoisie theory of rights’. Several arguments are purported by Chinese Marxist intellectuals to show the theoretical superiority of the socialist theory of human rights. According to a first argument, even

577 “Like freedom, everyone may choose it freely, which is the substantial content of any right. Therefore, like any right, human right also can be essentially summed up as the right of self-determination. At the international level, or more precisely, on the issue of the state-to-state relation, human right takes precedence over sovereignty, which is safeguard for basic human right, that is, to reflect people’s right to self-determination. Because, if right to self-determination is the core of human right, the right should make people decide their own human right and judge their human right themselves. Therefore, the emphasis on the sovereignty above human right on the international level and oppose using human right as an excuse to interfere, especially with armed aggression interfering sovereignty, which reflects the protection of basic human right. It should be noted that this is not my viewpoint, but the provisions of the UN Conventions on human right”. 陈忠林, Cheng Zhonglin (2009). 578 The definition of the nature of this consensus is unclear.

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if the idea of human rights was originated by the economic capitalist system, however, the socialist system only provides the economic conditions for the full and universal enjoyment of rights. Another argument holds the natural rights579 upheld by the bourgeoisie as being in fact historical products, while instead the socialist rights, aiming at ameliorating the conditions of humankind, are improving the course of history. A third argument holds that the socialist goal of overcoming the division of society in classes, as a result, will enlarge the class enjoying human rights. Moreover, as for the theory of the dialectical unity between rights and duties, Marxist scholars contend that while in the capitalist society one class enjoys all the rights and the other bears all the duties because of the separation of the workers from the means of production (moreover, egoistic men in capitalist societies enjoy rights to egoistically pursue his own interest) in the socialist system the rights of the individual are not separated from that of the collective.

The critique to capitalist system is reduced to the claim that it keeps the society divided between rich and poor, exploiters and exploited. The Marxist group of intellectuals hold the premises upon which socialism is based that is: capitalism has grave moral flaws, such as unjust inequalities in wealth, income, opportunities, and power, but also excessive individualism, competition and materialism, and the exploitation of ordinary working people, the unjust oppression of one group by another, whether through class domination, discrimination, or an unequal distribution of power.

The socialist view, as it has been already said, is that human rights realize the universal enjoyment and the full equality among people through the realization of the public ownership of the means of production and the principle of distribution according to work. “Socialist human rights are superior to bourgeois human rights and represent a higher level of human rights”. This view is not easily reconciled with Chinese economic reality: in fact the planned economy (which was set to realize the collective ownership of the means of production) gave space to privatization of economy. Today 81% of the market is privately owned.

It seems that the critique addressed to capitalism by most of the Marxist or conservative Chinese intellectuals, should be interpreted as a critique to an alleged normative characteristic of the ideologies which support capitalist system, as if these ideologies considered right, just, or good the division between rich and poor, exploited and exploiters, while instead socialism purports the normative relevance of the principle of equality, generally understood as substantial and economic equality. If interpreted otherwise, the critic would fall, consisting only in a biased affirmation. As a critique addressed to the fundamental normative choices of the system, instead, the critique is not pertinent because the philosophies which support the capitalist system (eminently liberal ones) do not commit to inequality but rather to the principle of substantial and formal equality, generally upholding legal equality but not ignoring

579 Natural rights can be considered the origin of subjective rights in the modern sense, but the link between natural rights and human rights is at least problematic.

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completely the issue of economic equality. The ideal of freedom and that of equality have been considered as incommensurable, irreconcilable, or difficult to realize at the same time to the fullest degree, but are both part of the liberal tradition and are both goals of the constitutional systems.580 The target of Marxist critique to capitalism is the conflict between ethical universalism and the guarantee of private property, but the contraposition between socialist and capitalist regimes as it is formulated by Zhang seems to overlook some of the characteristics of the capitalist system, which, if taken into account, make the argument blunt. Moreover, the fact that India has been capable to combine democracy and socialism suggests that human rights regimes should not be specified in terms of economic systems. Indian experience constitutes evidence against the argument that collective rights, and the second generation rights (social economic and cultural rights) as socialist say, should be emphasized by socialist regimes at the expenses of the full enjoyment of civil and political rights581.

4. Non-Marxist views upon human rights

Keith and Lin affirm that Chinese contemporary jurisprudence has already overcome the above-described old Marxist theory, and has developed autonomous ideas in respect to the concept of rights.

Li Buyun supports a non-marxist view on human rights. The three categories of rights he individuates are ought-rights, legal rights and actual rights. The first category of “ought-rights” includes socially derived rights which reflect the characteristics of social relationships and exist independently of their legal recognition. The ground for ought-rights is the interest and need of peoples arising from their relationships and their interaction. Ought-rights are determined by external and internal causes. The natural and social attributions of person are qualified internal causes. Examples given by Li are the existing social relationships which are determined by the means of production. The external causes are the level of development of material and spiritual civilization. Examples of ought-rights are the rights and the corresponding duties which exist among family members (the parents’ duty to maintain and educate children, the duty to maintain old parents). The guarantee of ought rights, when they are not recognized by the law, is realized through social forces (custom, social conventions, habits, tradition, moral ideas and political consciousness). The category of legal rights includes the rights provided by the law. The third category of actual rights includes rights enjoyed in the life of a particular individual. Legal rights become actual rights depending on the degree of rights consciousness, social, economic and cultural conditions.

The view of Li Buyun differs from the Marxist view because Li distinguishes citizen’s rights and human rights in many respects. First of all, according to Li, citizen’s rights are individual rights while human rights include rights of the

580 For a reconstruction of the debate see Schiavello (2000).

581 Sharma (2006: 108) stresses that even if the Indian experience may be partially failed, it is still a valid argument against the association of a hierarchy of rights to a specific economic regime.

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collectives as well (not only ethnic minorities or peoples but also women, elders, disabled, therefore he actually refers to group rights instead to collective rights). Second, non-citizens are entitled of human rights as well as citizens. Li assumes that law is an instrument for the protection of rights but at the same time it is in itself an expression of the moral values of justice and fairness, defending the basic worth and dignity of human beings. Therefore Li individuates a conceptual connection between law and moral as well as an instrumental connection.

Shen Zhonglin recognizes a conceptual distinction between legal rights and human rights. Moreover, he distinguishes between two conceptions of human rights: the Marxist and the bourgeois; in both cases human rights are derived from moral ideas (good and evil, for example). In his opinion, the articulation of the class nature of rights presupposes the theory of dialectical materialism. Shen considers rights connected to duties and the economic social and cultural rights as preeminent in respect to civil and political rights.

Zhang Wenxian challenges the view that collective rights are less abstract than individual rights. His arguments are first, that groups and collectives are the result of individual activities; second that guaranteeing human rights will support the good of the collective and not undermine it (socialist Marxist legal scholars attribute to the idea of rights the spread of egoism and self interest to the detriment of collective good).

Zhang Wenxiang distinguishes ought-rights, legal rights, customary rights and actual rights. Ought rights are moral rights and constitute standards to criticize legislation. They belong to human beings as such. Legal rights are rights provided by the law and the Constitution. This category includes “presumed rights” (tuiding quanli) which are rights a citizen may presume to have when the law does not expressly command or prohibit the action that constitutes the object of the presumed rights. Customary rights are based on the voluntary repetitive behaviour of people and depend on people’s cultural tradition. Actual rights are rights that the holder actually enacts, practices, enjoys. This author emphasizes the importance of political rights, and considers economic and social rights as “foundational” in the sense that they provide the foundation for the realization and protection of political and civil rights The origin of basic human rights is for Zhang the “man’s natural attribute and social essence” these rights are “directly relevant to man’s survival, development and status as a subject”. Therefore he considers basic rights as inalienable. Basic rights include the basic rights enshrined in the Constitution. Economic, social and cultural rights are according to Zhang Wenxian more basic than other rights, and in this respect he shares the Marxist view.

Ma Weilong deems human rights as inborn. Nevertheless, citizens should be able to have a say in political matters to actually exercise these rights. Instead, China is in a phase of “immaturity of the public opinion”582. People’s ideas are not taken in due consideration by the power which uses autocratic means to suppress them. Ma

582 Ma Weilong (1999: 44-47).

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auspicates that if and when the public opinion will grew in strength and become a force to oppose the autocratic government it will be installed a constitutional government.

The immature status of public opinion on the human rights issue according to Qiu Xinglong is due to the absence of the deep-seated idea of human rights as inborn inalienable, that cannot be renounced and that the state must respect. The very idea of the sacrosanct nature of human life is not commonly shared among Chinese citizens583.

Chinese scholars, as mentioned above, link the theorizing about the nature of law

and rights. For example, Gong Pixiang affirms that the idea of 法 fa represents the law

as it ought to be, instead the concept of 律 lü, refers to the law as it is. Gong compares

Fa to the expressions ius, right, diritto and recht, as indicating the idea that law embodies justice and rights, assimilating falu to the law based on will. At the core of his theory of rights is the notion of “ought-rights”. Since human beings are autonomous and creative agents, in their existence they use ought rights to fulfil needs and interests, to realize their autonomy and express their value and dignity. “Ought-rights” are conceived as the means through which the value of human being is expressed. “This human consciousness regarding the subject’s own value and status through the medium of social praxis which realizes the subject’s value is concretised as the subject’s ought-rights”584. The nature of rights is linked to the human nature in that ought-rights are means to express and realize human autonomy and value in history. At the same time, they constitute ends or value goals in that they represent what the subject expects and demands in his life. The State, through legal provisions, elevates ought-rights into legal rights. In order to guarantee rights, the state should be subject to the rule of law: “the law should recognize the social subject’s dignity and autonomy and enable him to enjoy his lawful rights and freedoms; in order to provide effective protection for the citizen’s rights, the law should also limit and regulate the exercise of state power” because the Rule of Law that he opposes to the Rule of Man, is aimed at limiting the exercise of power. However, Gong argues that only a communist society can realise the protection of the freedoms and rights of individuals because this goal cannot be realized in a society of exploiters.

According to Xu Bing, “the development of human civilization and the development of human rights are inseparable. Human rights promote the development of human civilization: human civilization is manifested in human rights”585. Xu makes a few points against the dominant view of human rights. First of all, human rights are recognized as a notion elaborated by the bourgeoisie but this is not considered a reason to reject them, instead it is a reason to adopt a different attitude

583 Qiu Xinglong (2005: 9-25); Chen Xingliang (2005: 26-34).

584 Chen, Albert Y. (1993: 130).

585 Chen, Albert Y. (1993: 131-132).

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towards the bourgeois ideals. Moreover, since human rights are rights possessed by human beings, they do not have class nature, their concept instead transcend social classes, neither they are coincident with citizens rights. After the horrors perpetuated by citizens and officials in the Cultural Revolution, Xu states that China must understand human rights “afresh” and should adopt a realistic attitude towards the issue.

5. The nature of rights.

According to the PRC’s Constitution, all citizens are equal in law and, while enjoying rights must also perform the duties as prescribed by the Constitution586. The basic tenants of Marxist ideas about the nature of rights as interpreted by Chinese theorists are synthetically listed as follows. Firstly, rights are considered as having a class nature and human rights are identified with citizen’s rights; secondly, rights have contingent587nature, they are granted by the state and can be changed by the state, because ultimately depending on the material conditions (structure) which determines the law (sovra-structure). Rights can be created or restricted by legislative enactment and therefore it is not a cause of invalidity or lack of legitimacy for a law that it restricts rights and no procedure is needed to determine whether particular laws do violate rights588. In fact, government can limit rights by legislation and is not itself restrained by law (this depends upon the conception of law as articulated above). Moreover, the character of the provision entailing rights is programmatic; as the Constitution itself, (it has been called a Manifesto-Constitution). Rights are goals to be reached rather than prerogatives of personhood; are granted to members defined as “people who are not hostile to the purposes of the state and who cooperate with the state in realizing its ends”. Nathan lists six major characteristics that would make Chinese rights different from those enshrined in the American Constitution, Chinese rights would be: granted only to progressive, achieved classes; their provision vary from one Constitution to the next; are programmatic – open ended and reflective of emerging goals; are always malleable – open to legislation that records changing cultural and socio-political value; are enforced by immediate social restrictions rather than formal judicial institutions; are dependent for their execution upon hierarchical patterns of deference to achieved worth rather than popular sovereignty. While the American rights are universal and unchangeable, a-historical and a-cultural, in the Chinese context “the changing and fluid constitutions register an emergent, participatory order rather than a set of given criteria around which order can be effected”589.

586 Chen Jianfu (2004).

587 Lubman (1999: 18).

588 Nathan (1985: 116).

589 Ames (1991: 166).

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The prevailing view of the nature of human rights is heavily influenced by Marxist doctrinal assumptions. One of the most representative traditional views on human rights is that of Zhang Guangbo, who considers rights as ensured by the legal system to protect the interests of the capitalist class which controls the institutions. “Human rights theory reflects the fundamental interests of the capitalist class in the economic and political systems. In upholding formal equality and liberty, it deceives the proletariat into accepting capitalist rule and exploitation, and performs functions not achieved by the repressive state and apparatus in a cheap and secure way by infiltrating into people’s consciousness. The essence of human rights is the right of capital to survive, the freedom on the part of capitalists to invest, employ and exploit, and the freedom on the part of the proletariat to sell their labour power”.590

As for the degree of abstraction of rights, the conception of abstract human rights is generally attributed negative character since it overlooks the particular social circumstances characterizing the environment in which people live591. For this reason, the expression citizens’ basic rights and duties, which is considered less abstract than human rights, is preferred. This expression is preferred also because it links rights to duties, according to the theory of the unity of rights and duties purported by the Marxist orthodox ideology.

Lin Han and Li Lin share the Marxist views referred above and add that “the essence of man lies in his true social connections, and yet human rights are no more than the rights of the egoistic man separated from his human essence and from the community”592 an that recalls the idea of alienation in Karl Marx’s writings.

According to Guo Daohui the nature of human rights is a class nature. In his opinion history is a progression toward the generalization of human rights. “The inevitable price for progress in human society (including progress in human rights) is the suppression of the human rights of certain classes. Such historical injustice may only be balanced by the overall interest of historical development”. In his opinion the way to obtain more rights is through revolution and class struggle.

6. The justification of rights.

The word used to indicate “rights” is 权利 (quanli). Quan means power and li means benefit. According to the definition widely accepted by Chinese scholars: “rights are our legitimate benefits”593. Consequently, a benefit which is not legitimate should not be dignified as a right. The justification of interests and rights of individuals and groups varied significantly in Chinese prevailing jurisprudence

590 Chen (1993: 133).

591 On the fundamental role attributed to particular circumstances in practical reasoning, legal or moral, in ancient China, see chapter II and III above.592 Chen (1993: 139)

593 Angle (2002: 29).

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The old justification for the protection of social interests was premised upon the acceptance of an ethical perspective according to which the society, the individual and the state constitute a moral unity which is superior to the individual. The needs and the fundamental interests of any individual, according to this view, are encompassed by this unity. The fundamental assumptions of this conception are: the similarity of every human being and the normative analogy between the family, fundamental unity of human relationships, and the whole collective within the state.

The notion of public morality entailed by this conception is similar to a “perfectionist” notion (see chapter II above for discussion about the possibility of using perfectionism to describe Chinese theories). In fact, the pluralist disagreements within the society are qualified as “temporary imperfections that may occasionally cause problems, but they are ultimately accommodated making reference to a universal agreement upon what is right and good for society”594.

The abovementioned conception has very ancient roots that can be traced back to Confucian thinking and to the ideal of “harmony”595, a “principle to coexist peacefully together (…). When this principle is accepted by the whole society, it will become the ritual and custom of that region “596. According to this ideal, one of the criteria to judge what is right is the conformity to the natural path which is harmonious. Conflict, as opposed to harmony, is considered an ethical and ontological evil, to be drastically eliminated, and it is not considered possible to “make the distribution of benefits reasonable through consultation and arguments”597.

Analyzing the relationships of the state and the individual in the above described ethical context, it is useful to distinguish the public domain from the private domain. In the public domain the government has the duty to guide the citizens “not to deviate”, and its tools are persuasion and admonition to keep the society “harmonious”. The correct order is in this view a moral order. “Good” and “evil” are defined by a non pluralist, objectivist ethics and principles of moral order are derived from natural order. The law is the moralized protection of this order, which is entirely subject to ethics.

At the level of private morality within the context of the same ethical system, the general principle is to avoid or to prevent conflict, but the method is different because the actor is different. The moral agent, coinciding with the “good” subject or citizen, is expected to practice an “inward psychological adjustment” with a “subjective initiative”598. This practice is a self-cultivation and self-rectification that “allows people to open the mind, to be willing to negate “its own” humanely, pure-heartedly

594 Dowdle (2003: 96); see also (Bobbio 1990: 124).

595 On the idea of harmony and its relevance in ethical and legal thought see Delury (2008: 35-44); Hermann (2007: 59-97) and Wei Yan (2006).596 Wei Yan (2006²: 505).

597 Ivi: 507.

598 Ivi: 508.

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and voluntarily, which makes them reluctant to wrangle with others and eliminates the various conflicts invisibly. In terms of the contents, moral enlightenment can be divided into two interrelated parts: to maintain righteousness and to wipe off selfishness”. These normative assumptions are still part and parcel of the mind set of the majority of Chinese people as “internalized social norms”. These norms are defined as “maxims that people want to obey because the maxims have been inculcated in them or are inborn. These social norms appear attractive (…) to us not only because they are internalized, but also because they possess instrumental social value: they guide individual’s decisions and curb opportunistic behaviour in everyday life”599. This conception is still widespread both in the public and in the private domain. It is shared by officials and laymen and it is replicated in the relations of authority in the family (between parents and children), in the legal system (between state official and citizens) and social realm (between teacher and student). It seems that this conception would be suitable to a homogeneous society, in which pluralism, understood as the simultaneous presence of different views upon good and evil, right and wrong, even if existing600, does not emerge manifesting itself in a way that challenges the dominant, apparently homogeneous, view. It is not a case that the doctrine of harmony has been recently put forward by the contemporary leadership to identify a model of ideal society to be realized. The reason of the scarce support of this new political line is exactly that the Chinese social atmosphere is profoundly changed. Pluralism of opinion is everyday more manifested in Chinese social environment and the above described public ideology is challenged because it does not provide solutions to the problem of the necessary cooperation and communication of peoples and groups holding different views.

The theorizing about human rights and the acceptance of this notion seem to have generated a shift within a paradigm. The normative standards of the human rights discourse have been introduced into the existing ones and thus generating a contradiction that has not yet been solved. The introduction of the notion of human rights to serve economic purposes, to foster the party’s legitimacy and to legitimate China’s government in the international realm, therefore for reasons that might be qualified as “pragmatic”, has also produced the effect (probably passed unnoticed) of introducing into the system a distinction between state and individual interests, that someone still rejects. Consequently, the role attributed to law must be revised too. In fact, its function is still debated by jurisprudence.

The negation of any real contraposition of interests between the state, the society and the individual, based on the following assumptions: (1) the only source of power are the people; (2) elite is the vanguard of the people; (3) the elite represents at best the interests of the people, upon which the entire constitutional system of the Chinese state is organized, brings two consequences: firstly, it takes away the need of a check on the power and its organs; secondly, it supports the idea that rights are granted by the state, created by law and can they be negated by the state in the same way.

599 L. Kaplow e S. Shavell (2000-2001: 973).

600 Lai (2006: 365-374).

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Notwithstanding the shift within the paradigm, the justification of rights seems to remain pragmatic in character: individual interests are protected to the extent this protection is instrumental for development and to the increasing of welfare that is realized through the initiative and work of the individuals601.

Human rights are not considered as “principi sostanziali espressi dai diritti fondamentali relativi a ció che é ecito decidere e a ció che non é lecito decidere”602, or “fonti di invalidazione e di delegittimazione”603. Moreover, the protection of individual interests is subordinated to the interests of the collective whole.

Nevertheless, the importance of theoretical views according to which the justification of rights is grounded in the protection of autonomy, freedom and interests of individuals, that sceptics easily minimize, is to be appreciated in dynamic perspective. Those views that are minority today may become the majority in the future.

7. The balancing of efficiency and rights:

The primacy of the target of economic development is represented by the current policy, epitomized by the slogan “efficiency is primary, fairness supplementary”, (xiaoyi weizhu, gongping weifu). Su Li affirms that “the principle of efficiency is considered paramount in the process of economic construction”604. He criticizes the phenomenon of a remarkably high number of promulgated laws without the implementation of effective systems to check and control their enforcement. In fact, the cost of promulgating legislation is sensibly inferior in respect of the cost of the activities necessary to guarantee the actual application of the rules605. Efficiency, in its simplest formulation means obtaining the best results with the minimum costs. This principle is not in itself at odds with fairness. However some argue that generally normative policy should be grounded upon considerations of welfare and efficiency and not upon general principles of fairness606.

Nevertheless, the protection of human rights sometimes requires performing a course of action which may conflict with considerations and standards of efficiency as defined above. The logic of the latter choice is eminently consequentialist, in that it evaluates the correctness and propriety of choices and actions by judging their results and consequences607.

601 “As a consequence of the individualization of interests, citizens will gradually or rapidly start to acknowledge the importance of individual rights for economic interests. If individual rights are not sufficiently legalized or protected, this will have an influence on the economic interest. Therefore, the idea that “law serves to protect interest” will require more and more guarantees for rights”. Xia Yong (2007: 320).602 Ferrajoli (2001: 20).

603 Ferrajoli (2001: 20).

604 Su Li (2004: 103).

605 Ivi: 105. See also Chen, Janfu (2002).

606 Kaplov and Shavel Fairness versus Welfare, Harvard Law Review.

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Human rights, understood as normative principles, sufficiently justify the actions and the measures necessary for their protection as proper, right, correct608. As “intermediate moral principles” that is, principles “mediating between the fundamental values that may ground them, on the one hand, and the institutional and social structures that implement them, on the other”, human rights would have certain characteristics, among which that “compliance with duties associated with rights not only imposes a significant cost on the duty-bearer, but (…) this cost is deprived of any normative force in virtue of the existence of the right. Reasons of wealth-creation that a society might serve by, say, depriving its most able members of the right to occupational choice, are not to be weighed against the duties arising from that right but are instead neutralized by them”609.

The part of Chinese doctrine which welcomes the idea of the existence of inalienable individual rights, to which every person is entitled just in virtue of being human, is engaging in a strenuous intellectual effort to elaborate a synthesis between justice or fairness (entailing respect for human rights) and efficiency. The two values are understood as having equal dignity, and both deserving actualization.

Keith and Lin notice that part of Chinese contemporary jurisprudence is committed to elaborate a correct balancing between demands of efficiency, social stability and justice610, for example by elaborating a distinction between “special groups”: women, children, disabled and elders. For each of these groups was a law was promulgated, recognizing special rights and interest and providing the means to protect them611.

The origin of some of the current most troublesome human rights issues is the dual economic system in which “the old machinery of social economic security had yet to be replaced by coherent mechanisms reflecting the new social and economic circumstances”612. The issues of justice raised by poverty and social marginalization generated by the market, according to Chinese jurists, should be solved by the law.

The government’s ability of managing the social issues and sufficiently satisfying (or giving the impression to satisfy) the demands of justice generally shared by the citizens, is an important element for the CCP’s legitimacy. Among the demands raised by the population, increasing relevance assume the claims of rights protection. Therefore, a (limited) guarantee of human rights is part of the governmental strategy for maintaining social stability and constitutes at the same time a central issue for the domestic legitimacy of the CCP.

607 Cosequentialism is a broad term and it qualifies different philosophies. The most famous consequentialist philosophy is utilitarianism.608 Tasioulas (2010)

609 Ivi

610 Keith and Lin (2001: 49). See also Keith (1998: 48-57; 1997: 29-55).

611 Keith and Lin (2001: 49).

612 Kent (1993: 132).

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Defining “efficiency” as the capability of producing new wealth or welfare in the minimum possible time and at the lowest possible cost, and “fairness” as the recognition and enjoyment of rights for all persons under the jurisdiction of the country these two values must be kept in balance, in equilibrium – even within an environment attributing prevalence to efficiency – because otherwise the unequal distribution of resources and the distorted competition would turn into inefficiency, while the feeling of injustice could be so strong and widespread to cause a loss of legitimacy detrimental to power holders. This could happen, for example, if the government will not be able to reduce the unbalance between rural and urban zones,

generating the phenomenon of the nongmingong, ( 农民工 , it literally means

population of farmer workers) million of migrant workers moving from the rural to the urban areas, looking for a work without guarantees, sometimes (badly) paid, and living in precarious and miserable conditions. Nongmingong, for the most part, supported the human costs of the Chinese economic miracle, they are numerous but yet politically invisible613.

8. The preference for economic social and cultural rights.

The distinction between civil and political rights and economic, social and cultural rights corresponds – in the classification generally accepted – to that between the second and third generation of rights614, sanctioned by their provision in two different international documents: the International Covenant of Civil and Political Rights and the International Covenant of Economic Social and Political Rights615. The distinction between the two categories of rights has been and still is debated616.

Who doubts the correct qualification of economic, social and cultural rights as such usually puts forward one or many of the following arguments. First of all, civil and political rights only would be rights properly defined, while social rights have been considered “fake-rights” or “non-rights”. The reason commonly adduced to support this affirmation is related to the huge costs necessary for their realization. Their recognition through legalization is in the majority of cases regarded as flatus vocis. Secondly, if rights are defined as valid claims with certain content and towards certain subjects, determined by legal norms, and if to every right must correspond a specific obligation for a determined subject, either public or private, in the case of social rights, it would not be possible to determine their content for each subject entitled of them before their institutionalization. Furthermore, social rights would not

613 Li Ling (2001).

614 Bobbio (1992).

615 The provision in two different international documents has been strongly advocated by USA representative, who argued that the realization of economic, social and cultural rights was only a long term goal, while civil and political rights could be immediately realized. See Beitz (2011) and also Roberston (1994: 693-714).616 Economic, social and cultural rights are not alien to the liberal tradition, but it is generally assumed that this tradition prefers civil and political rights, contrary to socialist tradition. For a synthesis of the debate see Diciotti ( 2006: 73-136).

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be enforceable because their content and the entitled subject are not universal, and because they possess politico-constitutional value rather than legal-constitutional value, thus being more similar to political intentions. Moreover, social and economic rights would be directly influenced by circumstances of fact. The argument pivoting on the difference between positive and negative obligation, holds that “rights in any defensible sense depends upon the autonomy, freedom, and will of each person to be develop what he already is from his being. We do not have to show ourselves that we “deserve” them. Positive rights ought to be considered a matter of policy, of results of choice, work and enterprise”617.

However, the protection of civil and political rights as well entails costs for their realization. For example, a functioning judicial system has to be founded in order to ensure actual protection for freedoms and civil rights as well. And also, it seems necessary that the content and the subject who has to perform the obligation towards can be specified with reference to the norm even if the disposition itself does not abstractly individuate them. The conclusion is that, from a theoretical point of view, it seems to be reasonable to exclude the qualification of cultural, social and economic rights as a weaker category of rights618 and the differences between the two classes of rights concern the content of the obligation rather than the structure of rights619.

China showed a preference for economic, social and cultural rights in respect to civil and political freedoms. The reasons for that preference are political and ideological, but they are also tightly linked to the differences between the two categories of rights discussed above. Ultimately, the explanation of this preference can also be found in the Chinese prevailing ideas about law, its function and purposes.

An obvious reason is the scarce interest an authoritarian regime has in expanding the scope of personal civil and political freedoms, such as freedom of expression of thought or freedom of conscience, and so on. Even though article 35 of the 1982 Constitution enshrined the rights of freedom of speech, press, assembly: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration”. Nevertheless, these freedoms cannot be exercised if conflicting to the goals and the principles expressed in the Preamble of the Constitution: the four cardinal principles, which include the leadership of the Communist party, the socialist road, the Marxist-Leninist-Mao Zedong thought and the democratic dictatorship (democratic centralism). For these reasons they have been subject to systematic repression.

According to the prevailing jurisprudence (coinciding in this case with the official position of the government), the right to development620 is given logically and

617 Schall (1987: 59)

618 Trujillo (2000: 44).

619 Ivi: 44.

620 For a discussion on the right to development as a human right see Alston (1988: 3-40) and Marks (2004: 137-168).

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substantially preeminent in respect to all the other rights621. The content of the right of development is wide, but Chinese intellectuals generally indicate its core content in the economic and social development. This right would not be separable from other human rights, because would offer the conditions of material stability in the absence of which no other rights cannot be realized. Understood as “right to subsistence” this right has been considered as comparable with some ideas of the Chinese traditional legal thought.622

The pre-eminence of the right of development was officially stated by the Chinese representatives at the Vienna Conference on human rights in 1993. The Chinese delegates affirmed that the government has the duty to guarantee the full realization of the right of subsistence and development. They also affirmed that the realization of all the other rights is conditioned by the full guarantee and fulfilment of the right to development. According to this view, the elimination of hunger and extreme poverty, the arrangement of basic medical care, are functional to the realization of freedom. Security, as well, understood as “existential state of freedom from fear”, is considered a basic human right to protect from threats coming from within and outside623 the country. The protection of economic, social and cultural rights, following this reasoning, would be functional to development and therefore to be set above the realization of civil and political rights624. Once the level of development is increased (up to a certain threshold which is not analytically specified), then it would be possible to give protection to civil and political rights. This argument shows that the protection of rights is associated and determined in relation to their pragmatic value.

According to Marxist theory, which still strongly influences the jurisprudential discussion in China, individual rights are not absolute rights625. Since rights are determined by material conditions, their content and their importance varies according to the mutating economic and social circumstances and the historical and cultural conditions of each country. This argument entails that rights are country-specific. It is to be specified the actual rationale and the true meaning of this argument: what does it really mean that “rights are determined by material substance, historical conditions” and so on? Isn’t that obvious?

621 For a discussion upon the right to development in relation to other human rights see Sethi (1981: 11-24).

622 Classical legal doctrines and in particular that of Mencius, provided a legal justification for rebellion against the emperor. If the emperor failed to guarantee a minimum standard of material wealth, sufficient for the survival of the population and securing conditions of stability, peace and order, the people could legitimately rebel. The rebellion would have been legitimate and therefore successful, because at the same time Heaven would have withdrawn his mandate, the Tian Ming 天命 (see discussion in chapter II). If carefully examined, though, the idea of a duty on the part of the emperor to guarantee a certain living or welfare standards to its subjects has not been framed as an entitlement of a right for the people. The seeming religious character of the idea of mandate of Heaven was probably present at the beginning, but was lost in later developments, while the pragmatic character of this justification of legitimacy remained.623 Luo, Haocai (2008: 2).

624 For a discussion of this argument see Howard (1983: 467-490); Sen (1991).

625 The question of the absolute nature of human rights is debated by jurisprudence and has to be distinguished from the problem of their universality.

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Somewhat consistently, the benefit of policies and initiatives is only measured in relation to their impact on economic development. Considerations of different nature, as for instance assimilation of minority groups, deteriorating of environmental conditions626 or partial loss of cultural and traditional patrimony (constituted by customs, monuments for example), are not often taken into due consideration. Tibet and Xinjiang, autonomous regions, are part of the official territory of China and are densely populated by homogeneous minority groups, respectively Tibetans and Uyghur. These regions have been massively invaded by Han population (the ethnicity which represents more than 90% of Chinese population), coactively “industrialized” and “modernized” in the name of progress627. Alice-Ehr Soon Tay puts forward an argument against the alleged need to put the realization of civil and political rights in stand by in general in the Asian region, that can be apply to China as well. The Chinese argument offers a thin support for a present sacrifice for the future well being. However, “in the age of science and technology, of the diffusion of knowledge and sharing of talents, there is no need to sacrifice the present generation for the progress of future generations and for the future prosperity of Oriental Asia” this region can indeed learn from the mistakes committed by fascist and communist regimes of the past, who “accepted horrendous cruelties and brutality towards many generations in the name of an hypothetical higher glory for future generations”628.

Chinese jurisprudence acknowledges the existence of collective (as for instance the right of development) and individual rights, but the first category is considered more important629. The reasons of this axiological prevalence are mainly two: firstly, individuals are defined starting from the net of their social relationships; secondly, individual rights cannot be guaranteed if a certain degree of development (of the whole community) is not achieved. This thesis is common to two critical views towards human rights. One is the Marxist view that has been described above. Another is the view of those who support “Asian Values” as opposed to values purported by western liberalism630. The problem with this position is that it is not clearly specified the level of development which is considered sufficient, it could therefore be a never-ending process. Moreover, the postulated link between cultural

626 Day (2005).

627 Xinhuanet (2009: 40). Human Rights Watch (2005).

628 Ehr Soon Tay (2005).

629 The category of collective rights is debated in jurisprudence.

630 The debate upon Asian Values is an old debate. The expression has been criticized for several reasons, among which the evidence that it is simplistic to discuss about Asian Values given the diversity of intellectual and philosophical traditions in Asia. Moreover, the advocacy of Asian values appeared to respond to the need of a cultural ideology for the political leaders rather than be grounded on theoretical reasons. The advocacy of Asian values has been and its invocation of a common identity of Asian culture has been interpreted as an attempt to oppose the Asian to the Western civilization as whole concepts and for this reason it has been interpreted as an expression of Orientalism. The political nature of the advocacy of Asian values has been recognized even by the first promoter of the idea, the Singapore Prime Minister Lee Kuan Yew. For these reasons Bell suggests to substitute the expression with the sounder one of “Confucian values”. Bell (2007). Another argument showing the marginal relevance for the debate about Asian values for Chinese interpretation and practice of human rights is pointed out by Albert Chen, who affirms that “China has not relied heavily on the “Asian Values” thesis”. Chen (2006: 502).

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level and enjoyment of rights ignores the opposite relation. In fact, a population that enjoys fundamental freedoms, such as freedom of speech, of scientific research, acquires the instruments to increment the overall level of development. Enjoyment of political freedoms and civil liberties may be a good incentive to cultural and economic development of any country, as Amartya Sen admonishes631.

The view of some Chinese scholars about collective and individual rights is worth mentioning. Ge Hongyi sees a theoretical link between legal recognition of rights and individual, personal autonomy. The concept of right theoretically presupposes a distinction of the subject from an abstract totality. Instead, in his opinion, “the interest of the totality or the collective interest is a concept constructed on the basis of the interest of the individuals, and reflects the interest of the majority. The existence of any collective interest which is separated from the interest of individuals is unreal. If what is called the collective interest is in fact the special interest of certain individuals or classes”, then, “raising the question of rights means confronting such collective interest”632.

Zhang Wenxian challenges the idea that the main difference between Marxist and bourgeoisie concept of human rights is the emphasis on collective and individual rights respectively. He supports that claim referring to the constitutional provisions attributing rights to citizens, which are individuals and not collectives. The subject of human rights in Chinese law is the individual and not the collective. Moreover, while classical subjective rights are endowed to individuals, legal persons and collective entities, human rights only pertain to individuals. This is one of the positions confronting in contemporary Chinese jurisprudential debate about the legal qualification of rights, the opposite one holding the view that human rights could be extended to legal persons and collectives as well.

A sign of the diminished importance attributed to collective interests and of the corresponding increased importance attributed to individual rights may be constituted by one of the most remarkable innovations introduced to support the shift to quasi-capitalist market economy: the recognition of equal legal dignity to private individual property, beside public ownership, traditionally preeminent633.

The official attribution of preference to economic rights is also due to other reasons. One could be individuated in the peculiar the content and structure of economic, social and cultural rights, intertwined with the instrumental role assigned to law and its subordination to politics. To understand this argument it is necessary to make brief reference to what are here understood as the major characteristics of the social economic and cultural rights. Social rights are defined as rights to positive performances of the public administration, aimed at realizing social equality and

631 Sen (1999b).

632 Chen Albert Y. (1993: 125-149).

633 Private enterprises acquired an autonomous role after the 1988 constitutional reform. Cavalieri (1997: 175-176).

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freedom from essential needs634. It is argued that: “mentre i diritti civili e politici sono necessariamente universali e formali, i diritti sociali non sono formali, nel senso che le prestazioni corrispondenti ai diritti sociali sono inevitabilmente diversificate in relazione alla situazione fiscale dello stato e del soggetto: ciò significa che sono scelte particolari e selettive”635. And also “[l]a definizione dei contenuti e delle quantità delle prestazioni sociali dipende costantemente, in misura che non ha confronto con i diritti civili e politici, dalla disponibilità di risorse economico-finanziarie garantite dal mercato, da decisioni discrezionali dell’amministrazione pubblica, e dal gioco degli equilibri di forza e delle rivendicazioni politico-sociali che emergono conflittualmente dalla società”636. The content of social rights is indeterminate, in the sense explained above, and if it is not determinable through the means offered by the legal system, its actual determination is reduced to a political matter637. Lastly, social rights “non modificano le relazioni di potere, perché influiscono soltanto sui meccanismi di distribuzione delle risorse, non su quelli della loro produzione”638. This means that they can be attributed, recognized or guaranteed without dangers for the holders of political power.

The above mentioned characteristics explain why the features of the political-legal system of China are better suited to accommodate social and economic rights rather than civil rights and political freedoms.

Notwithstanding the alleged priority given to social, economic and cultural rights, there is a gap between the formal provisions of economic and social rights in the Constitution and their actual performance, and in comparison with rights enshrined in the ICESCR. The recognition of rights is limited to the areas which do not disturb the present structure of power and do not undermine the hegemony of the CCP and the legitimacy of the single party system (the leading role of the CCP is one of the “four fundamental principles” upon which the whole constitutional architecture is designed) and at the same time do not disturb economic growth.

The emerging social plurality is controlled through the limitation of institutional or associative forms to express the interests of social groups (they are called GNGOs, that is Governative Non-Governmental Organization).

Moreover, even if the formally stated Marxist priority for economic and social rights has been overturned by the changes in the economic system, it is still proclaimed as a priority. It seem urgent to restructure the institutional base of the social system according to the new socio economic circumstances, providing both

634 Corso (1981: 757).

635 Trujillo Pérez (2000: 48).

636 Zolo (1994: 30). And also: “I diritti sociali presentano un carattere aleatorio nettamente superiore rispetto alle prestazioni procedurali poste e a presidio dei diritti civili e dei diritti politici”. Ivi: 30-31.637 Trujillo (2000: 50).

638 Zolo (1994: 12).

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new socio-economic institutional guarantees and specific guarantees such as unemployment relief639.

In the following it will be analyzed the relationship between the international standards on human rights provided by the ICESCR and the Chinese domestic human rights standards and practice, qualifying as “inspirational” the role that international standards of human rights may play for Chinese domestic human rights practice.

9. International standards and internal human rights practice:

Among other international conventions, China signed the International Covenant on Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights, but only ratified the latter640. Its provisions are now legally binding for the Chinese state as international legal obligations. In view of the ratification of the International Covenant of Civil and Political Rights, Chinese authorities are revising the existing laws in order to abrogate the provisions in sharp contrast with the Covenant’s clauses, for instance those concerning re-education through labour (an administrative measure which actually constitute a criminal punishment comparable with torture, and those concerning the procedural guarantees for a person suspected or accused of the commission of a crime)641.

The clauses of the international treaties signed and ratified by China are not directly applicable by ordinary judges. Their applicability is therefore depends on the promulgation of domestic provisions reproducing the contents of the treaties.

The regime of both the above mentioned International Covenants provides a mechanism of control through reports containing a detailed description of the actions undertaken and of the progresses realized toward the fulfilment of the rights enshrined in the Covenant (articles 16 and 17 of the Covenant of the ICESCR) to be submitted periodically. The reports are examined by the Committee for Economic, Social and Cultural rights, an independent organ instituted in 1985. In these reports the member state may indicate factors and difficulties influencing the degree of fulfilment of the obligations undertaken by signing and ratifying the Covenant. The Covenants do not provide legal mechanisms to force the state to comply with their provisions, but the system of reporting is meant to exercise a political pressure upon the state forcing its compliance. China submitted its first report in 2004. The main progress indicated by the Chinese government is the promulgation of laws to create a normative framework to guarantee and promote economic, social and cultural rights, a progress limited to formal legalization. The issue of the remedies available to the citizens if the rights enshrined in the Covenant are violated, the reception of the content of the Covenant in

639 Kent (1993: 133).

640 China signed the International Covenant on Economic Social and Cultural Rights on 27 October 1997. The Pact is in force for China on June 2001. Sun (2007: 17-42); Sun (2009: 13-15); Yang, Yuguan, & Cui, Wei (2009: 16-20).641 The emphasis on education and re-education in the Chinese system is grounded on the philosophical idea that the human being is profoundly transformable. Ames (1991: 164).

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domestic provisions and the possibility for the citizen to advocate the application of clauses of the Covenant in the disputes in which they are part is not mentioned at all642. The Committee, in responding, recognized the problems caused to China by the huge population, but held that there are not significant factors and difficulties preventing China from actually implementing the rights mentioned in the Covenant. Instead, urged China to ensure legal training to lawyers and judges and take serious measures in application of the Covenant clauses, and advocating the use of the Covenant as a domestic source of law643.

The desire to be accepted and recognized by the international community as a responsible power is one of the main reasons why China contracted international obligations concerning human rights. International human rights law exerted a certain influence on domestic legislation, “inspiring” legal changes644 towards a better protection of human rights. As Leïla Chouckroune points out: “the role played by international law in advancing economic, social, and cultural rights often remains marginal. It will, nevertheless, provide inspiration and authority in assisting the development of a domestic legal and judicial framework that may guarantee the effective implementation of international obligations. When apprehended constructively and in a non-selective manner, international law, used as a catalyst, could have a significant impact on Chinese legal reform”645.

10. The principle of equality as a normative standard for legislation.

The Chinese Constitution proclaims that the citizens of the People’s Republic of China are “all in the same way equal” before the law (article 33). The enshrinement of the principle of equality before the law in the 1982 Constitution is the result of a shift in the character of class struggle and would testify the transition to a rule-based system of governance, replacing the campaign style of rules associated with Mao and the doctrine of permanent revolution. Under the Maoist regime, people were considered “enemies” in relation to factors such as family history and socio-economic background (“feudal” was associated with exploitation therefore “feudal” people were persecuted). The proclamation of the principle of equality manifested a change in perspective: “the rights of citizens were made dependent on behaviour rather than class, and the notion of class struggle itself come to be reconstructed”646. Accordingly, the focus of state coercion shifted from class to behavioural manifestation of class.

The moral justification of the principle of equality in law is the belief that differences in talent, wealth, education, religion, age, sex, and so on, do not have

642 Choukroune ( 2005-2006: 41).

643 Ivi: 41-42.

644 Ivi: 30-49. See also Chiu, Hungdah (1966: 245-267); Choukroune & Oates (2002: 7-20); Clarke (2003: 97-118); Chiu, Hungdah (1989); DeLisle (2000: 267-275). Franck & Thriruvengdam (2003: 467-518); Huang & Du (2003: 387-416); Lee, Katie (2007: 445-474); Ming, Wan (2007: 727-753).645 Choukroune ( 2005-2006: 43-47).

646 Potter (2003b: 124).

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moral relevance. Since the differences determined by contingent factors such as the time and place of birth, sex, etc., cannot be morally imputed to a person since they are out of her control, the law should treat every person as equal in respect to the above-mentioned factors (and factors of the same kind, unless the differences in treatment are justified, as for instance in the case of affirmative actions which are also inspired to the principle of equality).

There are two major issues in the wording of the Chinese Constitution. Firstly, it explicitly proclaims the equality of Chinese citizens. Even if some scholars argue that the only consistent interpretation of this expression would be “all people are equal before the law”647, equality seems be reserved to Chinese citizens648 (and the suspect is that non-citizens usually enjoy a better treatment). The second issue is stressed by Chen Jianfu who recognizes that in the Chinese Constitution “equality before the law apparently refers to equality in implementing laws, not in law-making”.

Two recent laws may be the signal of a new understanding of the principle of equality as a normative standard for law-making. The Law amending the General Principles of Civil Law issued in 1986 was approved by the Standing Committee of the NPC on 26.12.2009. This amendment changed the discipline in the area of tort law. Article 2 provides that “if civil rights have been violated, tort liability is regulated by this law”. It follows an open list of rights, among them: right to life, health, name, reputation, honour, image, privacy, marriage, property, ownership usufruct, copyright, patent, trade mark, inheritance and other personal and property right, which receive legal protection using the remedied provided by the same law in case of violation. The list is wide and an open clause of the law would allow the judge to integrate the guarantee for the rights which have not been mentioned, by referring to other law provisions, applying a systematic reasoning. The guarantees provided by the law in discourse only apply to violations committed by other individual citizens, and not by public officials or governmental agencies. According to the law previously in force, in the event of death caused by a street accident the victim’s familiars were entitled to receive a monetary compensation, the amount of which changed according to the hukou, permanent residence permit, of the victim. People with an urban hukou had a higher compensation than those with a rural hukou. The amount of the compensation varied in consideration of factors having eminently economic nature: the “cost” and the “productivity” of a citizen whit a rural hukou were considered comparatively inferior to those of a citizen possessing urban hukou, who instead were living and working in a richer and more developed urban area. The new law modifies the disposition in discourse, providing that if the same accident causes the death of many peoples, the amount of the compensation could be of the same, regardless eventual differences concerning the residence of the victims (art. 17).

In the field of public law as well, the evolution seems to lead to a higher normative relevance of the principle of equality. The amendment of the Electoral

647 Chen, Jianfu (2004).

648 See for example Chang, Jian, & Liu, Kun (2004: 20-23).

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Law649, promulgated on 15.03.2010, states that the vote must be secret (article 38 of the law draft). The secrecy of the vote had already been provided for in the Electoral Law, but has been scarcely enforced in practice. More remarkably, the law uniformed the value of the preferences expressed by citizens in rural and urban areas. The Electoral Law provides that citizens of full age, entitled with political rights, can participate to the elections of People’s Assemblies (legislative organs) of the place of residence and are as well entitled of the right to be elected. Universal suffrage and open electoral lists were firstly introduced for village elections only650; they were extended to municipalities and district elections afterwards. All other higher level legislative organs are elected with a second level election: the representatives of the basic level People’s Congresses elect the members of the legislative organ at the next higher level: members of the National People’s Congress are elected by the People’s Congresses of Provinces and Municipalities directly under control of the central government (Shanghai, Chongqing, Beijing, Nanjing). So described, this mechanism seems to ensure a bottom-up election, with full popular legitimacy for the elected representatives. But yet, the designation of candidates is rigidly controlled by CCP, through a top-down mechanism of designation and approval of candidates.

The Electoral Law issued in 1953, as amended in 1979 stated that a single vote counted as one preference only in the cities, while in rural areas a single preference could be expressed by four, five and eight individual votes, varying according to the level: respectively, municipal, provincial or national level elections. The amended Law promulgated on 2.2.1995 uniformed the number of individual votes to express a single preference in rural areas, bringing it to four for all governmental levels. The law draft, approved 15.03.2010 (and in force now) in application of the principle of equality, uniforms the comparative weight of a single individual vote in rural and urban areas for all Chinese citizens. One vote now universally represents a single preference.

The above described changes in law induce to think that formal legal equality, the equality of all the citizens in law, enshrined in the article 33 of the PRC Constitution, is more often understood as a normative principle orienting the law drafting. The criterion of equality is substituting those of efficiency or economic productivity.

11. Uses and abuses of Confucianism.

The comparability between the notion of human rights and some of the fundamental assumptions of Confucian doctrine has been advocated by many

649 The decision approving the amendment can be found at the following website in Chinese: http://www.npc.gov.cn/npc/xinwen/2010-03/14/content _1563772.htm, data ultimo accesso 15.03.2010; per il testo della nuova legge elettorale si veda: http:/www.npc.gov.cn/npc/xinwen/2010-03/14/content_1563869.htm Last access: 15.03.2010.650Jacobson (2004: 97-120); Hsu, Stephen C. (2003: 319). The research by Manion, Melanie (2000: 764-782) demonstrates that the aim of township elections is the alignment of vote preferences with the preferences of Communist party committees: ‘local party committees want to select candidates who will win, ideally with a margin of victory big enough to legitimate party choice’, Ivi: 765.

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scholars651, as well as the comparability and compatibility of Confucian tradition with liberal democracy. At the beginning of the XX century some scholars drafted a Manifesto, stating the validity of Confucianism and its compatibility with a liberal democracy652. The Chinese authors of the Manifesto to the World on Behalf of Chinese Culture published in 1958 in Hong Kong and Taiwan suggested ways in which Confucianism could be interpreted in ways significant for the cultural and moral evolution not only for China, but for the whole world. The belief of the authors was that not only Confucianism was compatible with democracy, in the sense that some element of Confucianism could be interpreted as seeds of democracy, but also that the establishment of a liberal democracy in China is the internal requirement or necessity of the development of the Chinese cultural tradition itself’ 653. In the Manifesto the authors wrote: ‘capacity for self-determination by the moral agent requires the possibility of his/her political participation. Here we see a fundamental contradiction between the moral spirit in Chinese culture and the monarchical system’654. This argument clearly implies the assumption that Confucianism prises the capacity of self-determination of the agent and that it is not considered at odds with Confucian thinking the political participation of the citizens. Both the above mentioned assumptions counter the commonly held believe of Confucianism as an ideology which in essence contrasts freedom of choice and pluralist public debate.

The discussion upon the compatibility of one of the most significant and influential components of Chinese intellectual tradition with liberal democracy and human rights is a crucial point not only for the evolution of the Chinese debate, but also for the global human rights discourse. The assumptions that the theoretical foundation of human rights ends up coinciding with the theoretical superiority of a liberal theory of justice and the liberal theory of justice includes the view that each human being must be entitled to choose the life plan he or she prefers is largely shared. As a consequence, any theory of rights which does not recognize these assumptions, would not be attributed equal status and recognition compared to the one founded upon liberal ideas. A different way to address the issue would be to elaborate multiple justifications for rights. Therefore, it is important to understand if and to what extent the Confucian tradition, in the name of which the distinctive character of the Chinese conception of rights is defended by the supporters of the official or governmental view, is indeed consistent with the state ideology or, on the contrary, is consistent to premises of the liberal democratic tradition about freedom, political participation and legitimacy of plurality of views upon moral questions. Claiming to constitute a non-liberal conception of human rights, and an explicit alternative to liberal values, the Chinese official view poses itself as a challenge to the illuminist intellectual tradition considered morally flawed in that it would generate solipsistic

651 Albert Chen (2007: 196); see also Lin, Shaoxin (1999), and, for a non-Chinese perspective, see Cohen (2004).

652 Chen, Albert Hung-yee (2007: 195-216).

653 Tu Weiming (1989); Albert Chen (For a discussion of the compatibility between democracy and Confucianism, instead, see Chen, Albert Hung-yee (2007: 195-216).654 Ivi: 196.

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individuals focused on their personal gain and realization, rather than on the welfare of the community as a whole, to which is attributed higher axiological relevance. This position generates the problem of the right normative standards which may be properly considered binding for all nations, and which can be considered the grounds for the attribution of power to governments. More specifically, a certain conception of human rights regarded as morally binding for the governments of all nations would be considered as an imperialistic or external imposition if lacking domestic justification. The point is crucial also because the official Chinese conception of human rights claims to associate countries with a Confucian heritage.

According to J. A. Cohen, human rights could represent one of the constitutive elements of a global public reason, the content of a basic agreement among nations, whose characteristics have not been yet specified and whose acceptance is still problematic655. Cohen makes reference to the conclusion by Tu Weiming and argues that even if a conception of human rights has not been autonomously and independently developed within Chinese tradition of thought, nevertheless “there are ways of elaborating an ethical outlook that is non-liberal in its conception of the person and political society, but that is also consistent with a reasonable conception of standards to which political societies can reasonably be held”656.

The existing contrast between, for example, the importance attached to freedom of choice, and official Chinese ideology657 may not be due to the contraposition between the values belonging to Confucian tradition and liberal views upon fundamental rights. It may be rather be a contrast between Communist ideology and western ideas about fundamental rights658, or between the positive morality of Chinese population, which might have been inspired by Confucian doctrine, but constitutes an interpretation of the same tradition. The coincidence between the values held by communist oligarchy and the whole society is difficult to measure. As noticed earlier, every level of education is heavily informed by the doctrine of communism and Marxism and students are thought that the party is working wholeheartedly for the benefit of the country. The driving principle of education is the socialist morality (art 19 Constitution), or spirit of socialism.

The use of principles and ideas derived from the Confucian tradition by the CCP is both pragmatic and strategic. It is pragmatic because it fosters the population’s support for the party. Since the positive morality of the population is imbued with the values of Confucianism, the recall to these ideas by the party if functional to keep the party’s legitimacy and gain support for the policy. But the use of positive morality by the population may also be observed from an inverted perspective. The policy line is

655 Cohen (2004: 190-213).

656 Ivi: 207.

657 Che-po Chan (1999).

658 Chinese ideas on human rights synthesize elements belonging to the Confucian tradition with concepts and ideas derived from the Chinese interpretation of the Marxist tradition. See Weatherley (2000: 101-125); Codevilla (1978: 215-228).

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decided following a method theorized by Mao Zedong: understanding the needs of the masses organize them and then explain the new policies to the masses in the party’s own terms. This ideas resembles the Mencian principle of “people as the base”, which inspires the policy of Hu Jintao and Wen Jabao, contemporary Chinese leaders659.

On the other side, the use of traditional ideas is strategic. The strategy of the CCP consists of the recovering of Confucian notions and principles with the aim to state a clear difference between the “internal” identities (Confucianism) and “external” impositions (everything that for political reason is considered at odds with that identity). The creation of this artificial sense of identity reinforces the sense of belonging and provides a ground to resist what is presented as “being not Chinese”. The functioning of this argument is described by Berlin as one of the negative effects of a positive conception of freedom660.

The strategy of the CCP and the pragmatic use of Confucian ideas may not work out in the changed contemporary environment because the positive morality is slowly, buy yet profoundly undergoing a process of change, especially in the costal, more economically advanced urban areas.

The theoretical role for the contemporary scholars is to identify and reinterpret Confucian principles, making the best possible sense of them in the changed environment. However, despite the recognition by some scholars of the moral validity of Confucian ideas about person and society, the use of moral Confucian principles as principles for legislation is considered problematic661. The style in which the classical philosophers expressed their ideas does not fit the requirements of legislation, or cannot be easily transformed in legislative texts. The philosophical discussion concerning problems such as good or evil are “a mass of irrelevant analogies, most of which could equally well be used to disprove what they are intended to prove”662. Moreover, in the opinion of those scholars, Confucian principles are too abstract and general to be directly applied to determine the resolution of a case. The generality of those principle would make them unfitting for the application of law because in the process of their application they could lead to contradicting or conflicting results.

12. Involuntary consequences of a pragmatic approach to human rights

The dominant characteristic of Chinese Communist party’s approach to rights (which has to be distinguished from the plurality of views upon rights debated by

659 See also the interpretation of this doctrine as justification for the single party rule in Chapter IV above.

660 In his account of positive freedom, and in defence of negative freedom, Berlin articulates the following line of argument: an individual may give up claims for freedom in order to be recognized and accepted as a member of a community. The cost of manifesting dissent would be the lost of membership to the community and the need to belong and being recognized as a member of the community may be stronger than the desire to manifest dissent or perform a behaviour which does not conform to what is required by the community.661 This observation is based on the interviews to Chinese scholars who expressed the wish to remain anonymous.

662 Waley, (1939: 194). The Author is here discussing about the uses of argument in Mencius in particular, but this can be extended to the style of the classical Chinese Confucian philosophers in general.

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Chinese contemporary jurisprudence) has been indicated as constituting a pragmatic approach. Rights are recognized, legalized and applied to the extent necessary for the goals of the regime and to the point they do not represent a threat for power monopoly of the party. Yet, there may be involuntary and unforeseen consequences of the limited recognition of rights, due to some characteristics of rights themselves. One argument to support this affirmation is the right holism. Caney defines ‘right holism’: ‘as it maintains that the acceptance of some specific rights implies the acceptance of some other specific rights. It claims that certain rights are interconnected. It might be contrasted with an atomistic approach where this argues that the case for each individual right can be judged in isolation of the case for other rights. Rights might be interconnected for at least four reasons. Two of these are noted by Cécile Fabre. As she observes, there might be a ‘logical’ relationship between two rights such that one right may entail another. (…) Second, one might make an ‘empirical’ link, arguing that the best way to protect the right P is to attribute to people the right Q. to Fabre’s analysis one may add a third possibility, arguing that there is a ‘normative’ relationship between two rights, where a normative relationship obtains when the rationale grounding one right also grounds another distinct right. If this is true then one cannot coherently affirm the former and deny the latter. Fourth, one might make what could be called an ‘incompleteness’ argument for linking two rights. What I mean by this is that there might be a good argument for a specific right but that that right requires for its valid implementation another right’663. If this argument is sound it would be difficult for the Chinese government to recognize and guarantee protection to some list of rights without sooner or later be forced to recognize other rights which are logically, empirically, normative related to the ones expressly recognized. The argument of the indivisibility of rights is put forward to support the idea that civil and political rights cannot be protected without protecting as well economic, social and cultural rights. However, it can be used the other way around if different rights are really interdependent664. The “indivisibility” and “interdependence” of rights is also affirmed both in the Bangkok declaration on human Rights adopted by the governments of more than thirty Asian states in 1993 and in the Vienna Declaration adopted by the World Conference on human Rights in the same year. The interpretation given by human rights advocates is that at civil and political rights may not be traded off for economic and social rights. The interpretation preferred by Chinese government’s representatives is that there should not be overemphasis on civil and political rights, but sufficient weight should be given to economic and social rights665. Interpreting indivisibility and interdependence as Caney does, it seems to

663 Caney (2008: 83), emphasis added. Caney uses the argument to contest the exclusion of some rights

in the list compiled by Rawls in The Law of People, because the set of rights chosen by Rawls in his

opinion do not hang well, therefore it would be a mistake to include some rights and refuse others.664 Viola (2000: 82). Viola points out che questa esigenza e’ valida nella misura in cui neghi l’esistenza di gerarchie tra le singole tipologie di diritti ma deve, pero’, essere rifiutata ove intenda definire gli obiettivi delle politiche pubbliche poiche’, data la carenza di risorse e di constraints (vincoli) istituzionali e’ necessario dare priorita’ ad alcuni diritti. Le strutture esistenti di portere, basate sulla crescita economica senza soddisfacimento delle necessita’ creano poverta’. 665 Chen (2006: 508). See also Davis (1995: 157-164).

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follow that the protection of one right implies the protection of other rights. Therefore, the introduction of some rights and not others in the Chinese legal system may eventually lead to the necessity to provide other rights in order to protect the ones already existing.

The introduction of the concept of individual human rights could be defined as a “pragmatic adaptation”, due to external, irresistible, factors. However, as has it has been attempted to show in the discussion above, it is also the result of a serious and conscious effort by the jurisprudence to reshape and adapt this concept to Chinese existing reality, perceived as an internal need and not as an external imposition. As Su Li states, “the transplant” or “adoption” of both the laws and legal theories to guide legal practice cannot substitute experimentations and mistakes, the overcoming of conceptual and theoretical challenges, in ways which are either invented or found through the efforts and using the instruments that Chinese legal tradition is able to find in itself”666.

The legalization of rights has been remarkable in quantity and the government has multiplied its efforts to increase the consciousness of legal rights among the population. As a result, Chinese citizens experience an unprecedented confidence in law. Citizens are conscious that rights are legal instruments which can be used to protect interests and request the government and the administration to abide by the law in their action. The rhetoric of the slogans667 and in general the education of the population to the method of law, which is necessary for the functioning of the market (because the spontaneous adhesion and abeyance by the population is a condition for the smooth functioning of the legal system and in turn for the functioning of the market) could, in the long run, cause effects that the leadership did not expect when launched the education-in-law policy. By increasing the legal consciousness of the citizens, their demand of law enforcement increases as well. Moreover, it generates the demand for the legal recognition of new rights and new guarantees668. Citizens raise claims of legal abeyance by bureaucrats, of a clearer legal discipline regulating the relationship between the detainers of public power and people who are subject to it; they claim a full legal regulation for the official action and respect of the already existing provisions by the administration and the government669.

A penultimate argument to show the involuntary consequences of the limited introduction of rights, that is, the consequences which would eventually lead to not desirable consequences for the oligarchy in power, is the argument based on the value

666 Su Li (2004: 94-95).

667 In Mao Zedong era slogans were used to spread political messages in every corner of the state and coagulate general support and adhesion to the mass mobilization or “campaign”. Slogans are used today as effective means of information and diffusion of policy messages among the population. 668 A similar argument is put forward in Alford (1993).

669 See Palmer (2006) for recent development in Administrative Law and Administrative Litigation Law.

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of public promises670. The official commitment to protection of human rights may be considered as a promise. It is not relevant that the people who made the promise actually believed what they said or effectively wanted to keep their word. The statement of a promise generates an attitude of trust in the person who pronounced the promise and expectancy of fulfilment of the promise. On the contrary, failure to fulfil the promise generates discontent and distrust and this in turn undermines the legitimacy of the power holder. To a certain extent the same action of promising generates the expectation of fulfilment and the desire and the expectation of the promise to be fulfilled. Unfulfilled promises alienate support to the person who made the promise. This is not to say that the CCP will keep the promise of respect of human rights if not doing so would undermine its legitimacy, but rather that it has a strong reason to do it.

The democratization of the system (political pluralism and democratic competition to designate people’s representative) seems not to be the priority for Chinese people at the moment. On the one side, their expectations of material welfare have been – partially but to a sufficient degree – met by economic growth. Moreover, “pluralism” is still a synonym of “chaos” and “instability” and therefore of “danger” in the widely shared perception of Chinese citizens. Pluralism is considered a danger not in itself but because it is considered as a potential cause of conflicts (in the lack of trusted and reliable procedure for resolving them), or at least this is what emerges observing the official level of public discussion. The nature of the general adherence and acceptance for the one party rule is difficult to assess. This preference may not be so generalized or may not be so genuine. Severe concerns of a massive external induction of that preference in the population come from the practice of “spiritual socialist education”, which the state practices (art 19 Constitution). The channels through which different ideas and opinions are discussed are mainly unofficial, among them an important place is occupied by forum and discussions online671, and therefore occur at the third level of discussion about human rights within China, that of the common people672. In the previous pages this level of the Chinese discourse upon human rights has been distinguished from the other two: the academic and the governmental. The three diverge for some fundamental tenants and of course for the impact they have upon the Chinese society. The unbalance of power, which is concentrated in the hands of the government makes the official voice seem stronger than it is, while isolates the intellectuals and the common people.

670 In Elster there is a similar argument. Through the analysis of the arguing and bargaining in the USA and French Constituent Assemblies, Elster argues that hypocrisy possesses a civilizing force which is at the end given by the public dimension of the argumentation and bargaining. A secret argumentation or bargaining would not necessarily possess the civilizing force described by Elster (1994; 2000).671 Chase (2002). See also Cheung (2007: 357-384) Liebman (2005: 1-157).

672 The activity of the NGO is of great importance in this respect Lee (2000: 363-434). See Liu & Hu, & Liao (2009: 529–554).

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CONCLUSIONS

In the light of the previous discussion it is now possible to state some provisional conclusions. The research has been carried out with the aim of investigating the nature and significance of the conceptions of rights and human rights in the contemporary debate within China, acknowledging the distinctive path of evolution of this concept in the light of the peculiar Chinese legal and moral theorizing, and of the major changes in legal theorizing occurred due to the shift to a market economy system. The investigation focused upon domestic factors, rather than foreign influences.

Regarding the position and role attributed to law in the broader normative domain, from the analysis emerges that China does not seem to have a consolidated ideology supporting the autonomy of law from politics, and that law plays a subsidiary role in respect to morality. The relevance of the conclusion now stated is not limited to the definition of the role attributed to law. Indeed, a consequence less often articulated is that the way Confucianism understands and regulates human relationships between individuals minimizes, reduces, softens, or tends to dissolve social conflict. The presence of social conflict or conflict between individuals is certainly a factor pushing towards the development of a culture of rights, if the method of law is chosen to discipline and order and rationalize human relationships. However, in Chinese history, although conflict certainly existed, it was not only nor predominantly resolved through the method of law but, instead, it was resolved through alternative method, such as persuasion, attunement, modification of first order preferences in the light of second order preferences which were deemed correct either upon personal critical reflection or because possessing a high level of social acceptance.

Claims for rights are raised by the individuals towards the state, in the interactions or frictions between the two. The relations between subjects and authority have been analyzed in Chapter III. The result is that in theory, authority is considered good and respected, while in practice it is regarded with suspect. And this is not because of a suspicious attitude towards the interference in personal life, which is minor since authority is far and therefore indifferent, but because it is considered alien and exploiter, not transparent and therefore regarded with suspicion.

Market economy surprisingly flourished in the absence of a strong legal system. Law has, not acquired autonomous status in respect to policy. the high degree of social cohesion, the self restraint of government in expropriating private successful enterprises, social rules and social practices have supplied some functions usually played by the law. Overemphasis has been attributed to the hierarchical and authoritarian nature of the family.

Political power reshapes itself in order to keep its legitimacy at the domestic and international level. The party undergoes erosion of its power due mainly to domestic,

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rather than external, factors: first of all the same institutional reform and redistribution of power, brought about by mechanisms linked to the market economy, some of effects are not desired, willed, nor planned, but still unavoidable.

In this sense it can be individuated a ‘conceptual’ or necessary link between market economy and development of rights, and in particular freedoms and liberties of the subject. The argument of right holism, if true, would bring to a chain in which after the attribution of some rights, other would follow. To keep its coherence the regime should keep the promise of rights protection and recognition, and should abide by the law according to the professed adhesion to the principle of legality.

The domestic resources are to be individuated in the ethical reflection, and in particular in the Confucian conceptualization of personal development, and in the jurisprudential reflection about rights which is very rich, despite its minor resonance outside China. Moreover, at the level of the laymen, common people, workers and so on, a domestic resource is increasingly represented by the rights consciousness.

Some of the conclusions of the present study can be applied to other cases of study as well. In fact, the ‘Chinese case’ constitutes an example to study some problems (for example the relationship between rights, market economy system and the autonomy of law), and revise generally shared assumptions upon the relationships linking the three terms. Moreover, Chinese case is interesting because it is exceptional and remarkable in its scope and dimensions.

The questions of method, crucial to a cross-cultural research, have been discussed in the first chapter. Three competing approaches, the relativist, the fundamentalist and the experimental, have been analyzed, and the reasons supporting each of them discussed.

The relativist approach commits to an external point of view on the Chinese contemporary constitutional practice. The arguments advanced by its advocates are grounded upon the observation of the fact that the Chinese government has consciously and willingly introduced the notion of human rights in the constitutional discourse. Moreover, due to the process of globalization of economic, social and cultural factors, the dialogue between legal systems has already been initiated. As a result, the reached degree of similarity between the systems, either just apparent, formal, or also substantial, would permit the adoption of the external perspective and guarantees the correctness of the results of the observation.

The adoption of an internal point of view upon the practice constitutes the basic methodological choice of the fundamentalist approach in all its variants: developmental coupled with sympathetic engagement, functional, and experimental. The advantages of this approach lie in the possibility for the observer of grasping the implicit norms and the commitments embedded in the practice, and understand the justificatory reasons held by the participants for their behaviour.

The experimentalist approach has been individuated for the first time in this research as a variant of the fundamentalist approach. The advocates of this approach

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criticize the application of the analytical models, which have been elaborated on the basis of the characteristics of the contemporary constitutional democracies, to the Chinese legal experience. According to the experimentalists, the improper application of these models would indeed disguise a biased reasoning: assuming that the combination of the ideals of rule of law, democratic system and protection of human rights represents the best possible system of government human civilization has been able to create so far, it necessarily follows that any civilization should adopt such combination, including the Chinese. Denouncing the fault in this reasoning, the advocates of this method try to formulate alternative analytical models to observe the process of constitutional evolution of authoritarian regimes.

In choosing the methodological approach, the Western-trained legal scholar faces a dilemma. An external perspective would allow the observer to criticize as improper or incorrect the operations of reshaping of the concept of human rights in Chinese constitutional context. But, yet, at the same time, this approach might preclude the appreciation of reasons that, from the perspective of the participants to the legal practice, may justify the differences in the interpretation of the notion. On the other side, the internal perspective would allow the grasping of the main cultural differences, of the reasons justifying the normative choices and the behaviour of the participants to the legal practice in relation to the notion of human rights, but would impede to raise criticism for improper usages of the same notion.

Also, profound apologetic concerns are hidden behind the choice of the model. The concern of the advocates of the integral position is that Chinese have not accepted the idea of the protection of the individual through human rights. The advocacy of a Chinese concept of human rights could be a façade to justify improper limitations and violations in order to maintain the authoritarian one party system of government. The justification of this practice would constitute an abdication on the part of the European and other constitutional states motivated by consideration of economic opportunism and obsequious concerns towards an emerging power, resulting in an excessively sympathetic attitude.

The solution to the dilemma seems to lie in the distinction between the activities of understanding and agreement or attunement. In general, it might be said that the activity of evaluation and that of description are always interwoven in any interpretive practice. But understanding does not necessarily entail agreement. Reasoned criticism of practices considered unjust is not precluded by the adoption of a fundamentalist approach.

Several reasons support the choice of a fundamentalist perspective. The undeniable similarities between the legal models and the positive law promulgated by the Chinese government can be appreciated at a formal level. Foreign and international normative paradigms have been synthesized with the local normative practice, mostly unofficial in nature, so that the resulting actual normative contents may considerably differ from the original models. Inherent in the Chinese local practices there is a strong inertial force. The domestic norms derived from the

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international law or modelled upon the law of other countries are interpreted, adapted or derogated, ignored or neglected on the basis of their compatibility or usefulness for the local realities in which they are in force. As a result, the substantive normative content often significantly differs from that generally attributed to original models derived from foreign legal systems or international standards. Moreover, some compromises and adjustments of the legal models are due to the necessity to make them compatible with the one party system of government.

Since the fundamentalist approach seems to better guarantee the understanding of the normative practices of the observed community in their own terms, and since it appears to be more apt to detect the differences of the system studied, the choice has been to follow this method in its variant of the developmental approach coupled with sympathetic engagement. The results emerging from bibliographic research have been integrated with discussions with Chinese legal scholars, judges, lawyers, students, commoners and party members. The comparison of the results of these investigations has brought to the formulation of hypothesis, and the determination to pursuing or abandoning specific lines of research. In this process the Chinese conversationalists, which form part of the Chinese legal community, have been benefited as well, through the clarification of some philosophical premises on the discourse of human rights, and discussion of some principles of the constitutional method of government, which foundations and rationale are sometimes unclear to some legal practitioners and students. The advantages of the developmental approach suggest applying it to the institutional dialogue between the European Union and China on human rights.

The Chinese understanding and practice of human rights appear significantly influenced by the dominant conception of law, by the common understanding of the relations between authority and its subjects and by the representation of properties and characteristics of person. For this reason, in order to address the core question in depth, the scope of the analysis has been broadened to include arguments about the nature, characteristics and role attributed to law, as well as some selected moral notions which still form part of the contemporary positive morality.

The knowledge of the moral and legal underpinnings of the notion of human rights in the context of Chinese contemporary legal practice and jurisprudential discussion is relevant in that it allows for measuring the degree of coherence between the internal normative criteria and the actual domestic practice of rights. Moreover, it allows assessing the nature of the justifications and the characteristics of the Chinese conception of human rights, legitimating practices which may generate concern for the external observer, such as the limitation of some fundamental freedoms and liberties of the citizens. Furthermore, in light of this analysis, it is possible to determine the extent to which each of these domestic factors potentially supports broad acceptance of the concept of rights or represents the presuppositions for original syntheses, or instead constitutes a hindrance to the development of this concept, and for what reasons. Lastly, since the Chinese tradition meets the three conditions of normative respect stated in chapter I, it might be well able to offer moral ideas or

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insights, or contain within itself the resources to elaborate new solutions to moral questions or problems which have been answered in a less satisfactory way by the moral traditions elaborated by other communities.

The articulation of the traditional conceptions of law in China has been supported by arguments derived from two somewhat heterogeneous domains: the philosophical speculation, at the meta-legal level, and the contents and ways of functioning of the imperial law, at the level of positive law and practice. The first group of arguments is mainly derived form the reflection of the four classical legal schools, Confucianism, Legalism Daoism and Mohism. The second group of arguments is derived from the analyses of the contents of the imperial codes, the records of the procedures of application of law and the methods for legal interpretation as set by explicit official provisions.

The arguments on the nature and purpose of law purported by Confucian and Legalist classical legal schools have been equally influential for the development of Chinese law and jurisprudence in the past. The idea that Confucianism has been the most influential school is a consequence of the adoption of this doctrine as the official ideology of several dynasties. The emperors politicized this doctrine, and used it pragmatically to support the spontaneous and voluntary obedience of the population, relying upon the generalized acceptance of the basic Confucian values by the society at large. The high degree of correspondence between Confucian moral ideas and values and those held by the population depends on the fact that Confucianism made a doctrine out of the observation of the Chinese social practices, not the other way around. However, the structure of the state and several aspects of the practice of law were informed by the Legalist principles, substantially different and founded upon incompatible premises about the nature of the person and about the role of law and its characteristics, in respect to the correspondent ones held by Confucians. This dichotomy is still perceived as a major characteristic of the Chinese state, as suggested by the figurative expression invented by Chinese jurisprudence wai ru nei

fa 外儒内法 (outwardly Confucian, internally Legalist).

From the results of the comparison between natural law and Confucianism conducted in chapter II, and of the analysis of the theories of norms elaborated by the classical legal doctrines in chapter III, it emerges that the dominant understanding of the nature of the rules guiding human behaviour has been, since the beginning, that of a human creation, not derived from supernatural entities. For Confucians, the sage

creates the rules using 仁 ren, (usually translated as benevolence or compassion, or

humanity) a moral virtue possessing epistemic value and paramount importance for Confucian morality. Chang Wejen defines the Confucian hierarchy of norms as a

«pyramid in reverse». Starting from the highest norms, it included four groups: de, 德,

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(moral principles); li, 禮 (the rites); zheng, 政 (government decrees) and xing, 刑 (penal laws). The norms were ranked on the bases of two standards: acceptability, indicating «how close a norm was to reason and human feelings», and effectiveness, that is, «how great a good for humanity it helped achieve». The higher level of acceptability and effectiveness determined the superior rank of a norm compared to others. In the determination of the content of rules, as well, beside human reason, great importance was attributed to the commonly shared human feelings and to the diffuse reaction to certain stimulus.

Recent founding of imperial records suggests that imperial law was apparently not permeated by Confucian principles. On the basis of this evidences it is argued that the moral precepts did not directly influence law, undermining the assumption commonly held that Confucian principles formed part of the law, mainly based on the arguments contained in the Confucian classics. The analysis of imperial statutes brings to the conclusion that the law was considered a scale, a measure, to regulate cases. These norms were applied using «operative principles», among which the principle of analogy, whose justification can, however, be ascribed to the works of Mencius, therefore coming from a jurisprudential source. The application of the law by state officials would have consisted fundamentally of a measurement, of ascertaining and verifying the equivalence between the behaviour, the circumstances and what was established by the disposition. The basic principle was that the power was all in the hands of the ruler (the emperor) and the officials were not entitled to create law, they were only allowed to apply the existing law. This is clearly a non-moralized idea of law. Moreover, even if the power of issue law was exclusively attributed to the emperor, the understanding of law seems to have not voluntaristic accents (chapter II).

Nevertheless, to appreciate the influence of moral precepts on law, it may be accurate and useful to distinguish between official and unofficial law (chapter III). The unofficial or customary law was constituted by written and unwritten rules and applied by the heads of the kinship-family. The jurisdiction was determined on the basis of membership to a clan. This informal system was, during imperial times, regulated by the li, collections of norms of conduct or ritual behaviour. Every unit, or clan, had its own li. The analysis of chapter III supports the conclusion that the influence of the moral precepts was stronger upon the law of the clans, in that it determined directly the contents of the rules; the influence on the imperial law of the moral principles was minor and indirect. It was realized for example through the ratification by the officials of the adjudication of cases by the heads of the villages and families. The influence of Confucian doctrine and the contents of the corpus of precepts contained in the Confucian li were indirect on the practice of the application of the imperial law, in that it was exerted through the mediation of the magistrate, but it was direct on the customary law of the clans (see discussion in chapter III).

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The customary law was permeable to moral principles shared by the population at large; and these principles were used selectively by the official laws in a pragmatic way, that is, to the extent they were useful in order to gain the spontaneous adhesion to law by the population and at the same time guaranteeing control.

In continuity with the past, contemporary legal practice is still characterized by the coexistence of parallel systems of rules, the official and the unofficial. The latter is constituted of social informal social rules and principles, such as the principle of pao (described in chapter III), which form a strong base of customary norms. The permanence of a normative system of this kind represented one of the fundamental factors at the basis of the Chinese economic miracle. The solid set of rules of organization and coordination of the social family-based networks, have substituted law in the early stages of economic transition from a planned to a quasi-capitalist economic system, in that they functioned as a coordinator and regulator of economic activities in the place of a weak, incomplete legal system, whose contents were largely inadequate for regulating an emerging capitalist-like economy (chapter IV).

As a conclusion on the ideas of the nature and relevance of law it can be said that law was not understood as a limitation of the power of the authority and did not possess an autonomous justification in respect to politics and morals, (the two areas which influenced the idea of law and the determination of its content, in the terms explained above). The investigation of chapter IV has been carried on with the aim of determining if and to what extent, the legal development of the last decades, carried on in order to support the well functioning of the market, has determined changes towards a higher degree of autonomy for law. The contemporary jurisprudential debate, previously focused upon the alternative between rule of men and rule of law, is now animated by the alternative views on what is the best method to govern China between the rule by law and the rule of law. The analysis of characteristics of the contemporary Chinese legal practice described in chapter IV undoubtedly brings to the conclusion that it rather constitutes a model of rule by law. Indeed, new emphasis on the principle of «ruling the country according to the law», instead of fostering the autonomy of the law, could reasonably be part of a strategy of the CCP to perpetuate its power. The use of law is driven by considerations of instrumental rationality, and the interpretation of positive dispositions, is still profoundly influenced by constraints of political nature (chapters IV and V). The lack of autonomy of law, constitute a conceptual problem because without attributing to law this characteristic it is not easy to consider it as a mean for rights protection, in that a core aspect of rights is that they are not changeable unless through the legitimate legal procedures, and a characteristic of human rights is that they cannot be abrogated even respecting formal procedures stated for amending the law.

The basic structure of Confucian morality has been described in chapter III. This schematic representation is important in order to understand the profound reasons upon which rest the fundamental assumptions lying at the bases of the Chinese material constitution, and in particular the nature of the link between the power

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holders and the citizens, which, even if refashioned in the communist idea of the representative as the vanguard of the people, is still in substance a bond of trust grounded upon the fundamental duty of the rulers to care for the benefit of people.

The structure of morality can be represented as a set of concentric circles with the person at its centre. In the rings closer to the centre are situated the nuclear family members, while in the progressively larger rings the members of the family at large,

the state, until reaching the largest possible extension, the 天下 (tian xia), all under

Heaven (chapter III). The force of the obligation is stronger in the rings closer to the centre and diminishes progressively in the larger rings. The family and the state are analogically modelled upon the idea of the family, and there is no solution of continuity between the concentric rings. Higher force is attributed to the duties toward the family in respect to the duties towards the state. Thus the basic contraposition is not that between the interests of the individuals and that of the state, but rather that between the interests of the two collectives of family and state. According to the above-described structure, prevalence is accorded to the interest of the family. In practice, the popular version of Confucianism, considers respect for the duties towards the family as a moral justification to ignore or derogate to legal prescriptions in cases in which their application may contrast or undermine what is regarded as the interest of the family. In the model, however, the contrast between duties should be resolved without infringing upon the principle of impartiality.

The analogies between the family and the state and the coincidence of the ideal ruler with the ideal son are the basis of the model of the rule of man.

The outlined structure of morality has to be integrated with the theorization about personal self-development in order to have a grasp of the enormous implications it exerted upon the theory of authority and its contemporary relevance for the Chinese constitutional discourse.

The self-realization of the person is linked to the accomplishment of the process of self cultivation, enacted through the fulfilment of the duties towards the family members and towards other persons one come to be in relation with. For example, the duties to become filial to one’s parents, or loyal to the higher officials, are fulfilled through personal moral edification and self-cultivation: «filiality is not expressed as an obligation toward an outside authority but as an integral part of his self-realization». The personal satisfaction is not to be understood as depending on the formalistic accomplishment of the duties related to the role one plays in the family, or in society, but rather as a creative process of self edification and self transformation. The relationships with others are conceptually part of this process, because the person is defined in relation to these relationships, and also because the way of personal edification constitutively entails the edification of others (chapter III). As Fingarette efficaciously noted, in the opinion of Confucius, in order to affirm there is a person there have to be at least two human beings. This idea is fundamentally different from

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the representation of the person as individual who is the author of his moral edification, generally held by liberal thinkers.

Moreover, the process of self-cultivation which lies at the core of the moral life is represented as «a process of extension» and it is not limited to the sphere of personal inner life, but entails relations with others. As the person progresses in moral cultivation, her moral influence would expand until reaching theoretically the larger ring, which includes whole universe.

The relationship between the individual and the state was based on «an enormous, fiduciary-like obligation to those over whom they exercised that power. Failure to carry on this obligation represented a moral deficiency of the first order that might well lead those in power to lose their elevated position. Obviously, this idealized vision of the relationship between individuals and the state often was not borne out in practice. Indeed, at times persons in power both in the state and the family used it to secure their dominance over others». For a long time, and even now, the officials and

bureaucrats were called 父母官 fumuguan, «father-mother official», and thus

represented as those who cared for the welfare of the subject as parents would care for the wellbeing of their child. In the actual practice, however, documented by the recent research of Chinese scholars, the government officials abused their power in several ways, for example by imposing taxes for their personal benefit, issuing ad hoc measures in exchange of money.

Instead of a contractual model in which the power holders are accountable to the people, and directly chosen by them, the model of paternal government largely assumed the coincidence of the interest of the rulers and the ruled, and also configured a positive, non challenging attitude towards authority, minimizing the needs for setting checks and limits on the exercise of the authority. The constraint to the exercise of authority and above all the duty to care for the good of the subjects, were moral in nature.

The ideal of fiduciary community seems not to be suitable for regulating the interaction and coordination in contemporary societies. However, an effective way to insert human rights within the Chinese constitutional framework would be to frame human rights and the principle of equality as the moral basis for a new kind of trust and reciprocity.

This is impeded by the obvious unwillingness of the Chinese Communist Party to a permanent renounce to portions of its power. Moreover, due to the tight control upon associations, social groups, and by limiting the access of information through censorship, and by attempting at conforming thoughts through socialist spiritual education at any level of schooling, support for human rights has not been deeply and broadly shared among the population at large. The legal consciousness has increased among the Chinese citizens, as surveys demonstrate, and the use of law as a method to regulate human relationships has reached unprecedented levels, but nevertheless, rights claims from the population are still highly disorganized or silenced. Moreover,

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the idea of rights is to a certain extent at odds with the positive morality in the ways described above. A large percentage of the population still does not easily grasp the contents and the functioning of the guarantee of human rights. Yet, if it became a central concern for the majority of the population, the Chinese Communist Party would be forced to dissolve a portion of its power in order to maintain it. The suggestion to make human rights part of the trust bound, which is at the basis of the material constitution of the Chinese people, is certainly a suggestion which would be compatible with the idea of legitimacy of power peculiarly developed by the Chinese, but it is not likely to become an institutional solution in the short run.

The general prevalence of politics upon law is fostered by the coincidence or overlapping of the moral and the political domains, in that the notion of politics entails the idea of rectification. The ruler is considered the highest model of morality, being capable to edify the community, through self-edification and progressive inclusion of all the subjects under its influence. The government is represented as a «chain of command». Each person in this hierarchy exerts his direct action upon the people who are immediately near but the dynamism that animates the structure comes from above. The ruler is asked to relate to others in terms of their perceptions of what he ought to do as a political leader. If he fails to identify himself with the welfare of those who are responsible for the execution of his policies, as a result, his leadership would be greatly weakened. The principle of reciprocity also regulates the relationships between the rulers and its subjects.

The idea is that the government is not a control mechanism based on impersonal factors, but a manifestation of the art of moral persuasion. That is the very idea of the rule of man: the good government depends on men: above all on the ruler, and then on his ministers and officials. There is not a clear distinction between the nature and function of government office and the personality of those who are actively involved in the governing process. The point is that personal cultivation has public relevance. And the personal cultivation of the ruler is necessary for the sake of the empire and its good order. The persons that can judge if the ruler cultivated his personal character are the people who are closest to him.

The analysis of the philosophical notions in chapter III highlights the theoretical hiatus between some broadly shared assumptions and premises of the idea of rights and the core ideas of the Chinese tradition and of the conception of person, which form part of the positive morality of Chinese people. These notions however, could well ground a distinctive Chinese notion of human rights.

In particular, some moral ideas about the quality of the person appear to be at odds with some basic premises which in centuries of intellectual reflection have generated the idea of rights and still lie at the core of the contemporary Western jurisprudence about rights.

Some insights on the main differences upon the notion of person can be found in the Mencian meta-ethical reflection. The relevance of these notions lies in the fact that this particular variant of Confucianism has dominated the moral reflection after being

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adopted by Neo-Confucianism. One of the concepts that characterize the moral idea of person is the notion of xing, usually translated as «human nature». In this Mencian interpretation, human nature is not understood as an endowment from birth, as something already given, but it is rather an achievement concept, the result of the interaction of the person (which possesses the sprouts or the germs of human nature) with her cultural environment. The notion of xing poses the accent on the creative and discontinuous aspects of personal development. As the analysis of the notion by Ames shows, this notion of humanity is a distinctively cultural construction and not a pre-cultural endowment. Even if the sage is the one who possesses humanity in full, because has actualized her xing (through her xin, heart and mind), all persons possess the qualities to become a sage too, and therefore the moral equality could be grounded on this common quality of every man. Mencius’s conception of the human being is a «culturally refined» being, not a social animal or a symbol user but a good creature capable of ameliorating herself by self-effort. «The ultimate ground of one’s being good is grounded within oneself» «what is innate in the xing of persons is simply the propensity for growth, cultivation, and refinement. Xing, then, denotes a human capacity for radical changeability that is qualitatively productive». Turning to the normative side of xing «what is ‘best’ is only retrospectively understood. The norm comes into being pari passu with the process. That is, the norm itself is an emergent product». Ames uses the term «aspirational» to define a standard that is predefined and needs to be replicated, and «inspirational» as an analogous model that inspires our own conduct. The Chinese idea of man is closer to an inspirational model. If a human

being fails to cultivate himself is a 非人 fei ren, a non-human, he does not qualify as a

human person in any important sense. These presuppositions, according to Ames, underlie contemporary society as well, not only classical community. From the brief analysis above some conclusions regarding the underpinnings of the idea of human rights may be drawn. The absence of the idea of an initial endowment does not allow speaking of a person as the holder of inner prerogatives. This may explain why the arguments based on the idea of qualities, characteristics possessed by every man from birth and which are inalienable has not proven to be particularly strong in grounding human rights discourse in China. Human rights are only provided for the Chinese citizens in the wording of the Constitution but not recognized for any person or human being. However, this recognition could rather be founded upon the idea of the equal initial moral status and therefore human rights could be justified as conditions to guarantee the possibility of actualization of xing for every person. However, the foundation of personal moral development on her creative and active responses to the environment may constitute a significant notion in the reflection of comparative ethics.

Another difficulty in framing the notion of human rights upon Chinese philosophical premises is how the classical Chinese philosophy has conceptualized

the relation between «inner» (nei 内) and «outer» (外). This relation is not dualistic,

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while it expresses the fundamental element of relationality of the person. In Ames’ opinion the absence of a dichotomy between inner and outer, external and internal, does not allow speaking of man as an individual «To call a person ‘individual’ in the atomistic sense that we associate with some liberal democratic traditions would be to abstract him from the value-invested network of particular and familial and cultural conditions and the immediate cognitive and practical relationships that define him initially, and which make possible his continuing growth». This may be considered as a theoretical obstacle to ground the rights of person as they are generally understood in liberal doctrines, and may constitute the philosophical reason why part of the contemporary Chinese jurisprudence despise human rights for their «abstract» character.

Unlike in the Western philosophical history, Chinese classical theories of creativity do not present the notion of a cosmogonic beginning. In the non-cosmogonic worldview, as noted by Ames, first, the role of the thinkers is not to discover answers but to create a model of humanity that is persuasive to be emulated (and this is precisely what the Confucian did); second, difference is prior to identified similarity, and therefore genus and species as a category would be dependent upon analogy among sui generis phenomena (and this would explain why the relationship between the rule and the exception seems inverted: there is no universal principle nor universally applicable rule).

Even if the above described notions appear to be well able to ground a distinctive notion of human rights on Chinese moral ideas, it seems that there is a serious separation between the legal theorizing and the Chinese moral ideas concerning the person. The moral notions described in chapter II and III, could be synthesized in a way which may add some moral insights to the liberal moral interpretation of rights, but they have not been included in the notion of human rights with Chinese characteristics in a theoretically sound way. The prevailing conceptualizations of human rights are those allowing the preservation of the monopolistic power within the single party system and at the same time boost the economic growth in such a way to maintain the party legitimacy. However, some ideas are taken into consideration. For example, the duty to care for the welfare of the family members and especially the elders, the children and the women, has been the ground for theorizing the special grouping of the rights of these three groups providing rights for them (Chapter V).

Moving from the results of the analysis of moral notions to the results of the analysis of the Chinese meta-legal reflection, it seems as well that principles derived from Chinese classic legal schools do not exert a remarkable and extended influence upon the provisions and conceptualization of the contemporary jurisprudence upon rights. These principles are considered to be too general and vague, and their interpretation leading to conflicting results. Moreover, due to the ‘crisis of the Chinese consciousness’ occurring in the first decades of the XX century (chapter IV), the Chinese intellectual have rejected the cultural Chinese tradition and in particular the ideas concerning the organization, functioning and principles animating the legal

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system, considering them the origin and justification of the unjust imperial system, and holding the ingenuous aspiration to change the system from the basis and substituting it entirely with one derived from the West. The legal system and the legal categories, but also the method and contents of jurisprudence are for the most part derived from the Western law and theory of law. The original synthesis between the moral ideas of person and community and the instrument of law to protect them in a meaningful Chinese way has not been realized. However, this task has been undertaken by some Chinese contemporary legal scholars.

The expression 法理学, fa li xue, indicating contemporary jurisprudence, derives

from the expression used in Japan or in Germany. Part of the contemporary Chinese jurisprudence is trying to reconstruct the concepts of the traditional Chinese reflection upon law. Two terms in particular have been considered as having similar meaning to

the term jurisprudence: 法意 fa yi which literally means «the meaning of law», and 法理 fa li «the reasoning of law». The research in the past Chinese jurisprudence is

oriented to the explication of the usage of those terms in the classics texts (chapter III). In some of its usages the notion fa yi indicates a concept similar to ratio juris. Fa yi is also what is just or reasonable or in accord to feelings, according to ‘all the people’s hearts’. As the criteria for determining the ranking of norms described in chapter III show, the correspondence to feelings and emotions was considered important to judge the contents of the norm from a substantial point of view. To the extent the norm was considered broadly respondent to human feelings it was considered just and assigned a high position in the normative hierarchy. In the opinion

of Han Xuan Di, the word 法理, fa li was used to indicate the combination of ru jia,

儒家 , the Confucian classic school, and the 法家 , fa jia, the Legalist school. In the

writing of the intellectual Kong Zi Hui, the understanding of the expression is «common sense principle». The principle of keeping promises is for example referred to as fa li.

In chapter IV has been carried out an analysis upon how the abandonment of the planned economy in order to initiate a process towards what has been defined a «socialist market economy» (see chapter IV) has influenced the development of rights. The weakness of the judicial system (see chapter IV) has not compromised fluidity of the exchanges in the market, as shown by the discussion about the “rights hypothesis” empirically supported by the result of a survey in the Zejiang province. The recognition of rights and freedom has been limited to those rights which are instrumental for the functioning of the socialist market, and their justification is mainly pragmatic (chapter IV). Rights and freedoms which are necessary for the market, such as private property, freedom of contract, can be appreciated for their capacity to produce and circulate richness and it seems that this is the very reason

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why they have been recognized and protected by the Chinese legal system. In the opinion of some authors, the area of civil law is one in which the courts can, to some extent, creatively interpret legal dispositions, even if the power to create and interpret legal norms, according to the Constitution and the Organic Law regulating the activity of Courts, is exclusively attributed to the Chinese legislative assemblies (chapter IV). In the absence of a well functioning legal system, the rules and principles of social

interaction such as the principle of pao (chapter III) and the practice of 关系 guanxi

may be regarded as having contributed in a strange way to ensure predictability and certainty (see chapter IV), because they set broadly shared and deeply rooted informal rules, which have guaranteed rapidity and certainty in exchanges and informal protection from incorrect behaviours (chapter IV).

The analysis of the domestic factors causing the adoption of the ideas of human rights shows that the idea of human rights forms part of a paradigm which is alternative to the domestic one, from a moral and legal point of view. The core characteristics of the idea of human rights in the generally shared interpretation in constitutional democracies are: the fact that certain contents of the idea of law cannot be changed, a certain idea of the individual and a certain idea of the relationship between political authority and the political community. The paradigm emerging from the results of the analysis of the three elements: the moral notion of person, the conception of law and that of the authority is coherent and it lays at the basis of the Chinese material constitution, founding for example the acceptance of the principle of democratic centralism. This paradigm is contrasting with the moral and legal ideas embedded in the rules of the market economy system either for a conceptual implication of the liberal rights and freedom and the notion of market or for an instrumental relation between them (chapter IV).

However, as shown by the arguments articulated in Chapter IV, the new circumstances caused by the shift to market economy, would eventually bring to some changes in the institutional system and public discussion, and in particular: a pluralized access to decision making, the preference for previously stated formal procedures of conflict resolution between interest groups, the progressive lose of persuasive force of the arguments based on authority in the public discussion (see chapter IV), moreover, it would be apt to weaken the instruments used by the Chinese Communist Party to control the state organs and social groups.

The contemporary debate within China about rights sees three main conceptions of human rights: that of the citizens, that of the government and that of the legal scholars and intellectuals. The last group is engaged with the task of elaborating a synthesis of legal notion derived from domestic tradition to recover the lost Chinese distinctive understandings and theories, and on the other side are trying to elaborate justifications for rights, which remain mostly inspired from foreign models, but aspire to be distinctively Chinese.

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To the analysis of the domestic theories of rights and human right is dedicated Chapter V. Some interpretations of human rights elaborated by Chinese jurisprudence evocate Confucian ideas. However, the dominant justifications for human rights are still based upon premises derived by Marxist ideology. However, an emerging jurisprudence is engaged in elaborating new notions and syntheses (see chapter V).

The introduction of the method of law in the modern sense and the recognition of rights to support the activities of the market, have generated within Chinese legal system the coexistence of at least two significantly different legal paradigms which have not yet been integrated, synthesized and reconciled. This is certainly to be attributed to the obvious obstacle that ideology has represented to the development of a critical thought by legal scholars, (see Chapter V). Other hindrances are represented by the limited institutional capacity (see Chapter IV about courts) and the inertial force of the normative practices developed in times by local officials of the bureaucratic administration, applying what the Chinese call the ‘underlie rule’, determining a strong resistance to normative change at the local level, often tolerated by the central government.

It may well be the case that the conception of rights in China has been shaped in consequence of the progressive adoption of a quasi-capitalist market economy. The paradigm entailed in the idea of rights veicolated through the market may represent the only normative paradigm easily accepted and applied in any country because it is the real, dominant, normative paradigm of human rights at a global level. The rights Chinese jurisprudence is imitating are not the rights of the liberal tradition but the rights of the capitalist market.

Even if the reasons for the formal provisions of human rights in Chinese constitutional and ordinary law have been qualified as ‘pragmatic adjustments’ due to external, somewhat compelling factors, related to issues of political accountability at the international level, these changes may in part constitute the result of a conscious and serious effort of Chinese jurisprudence to elaborate new syntheses and legal categories to justify human rights in the present Chinese constitutional context, felt as an internal exigency rather than an external imposition.

The suggestion of abandoning the notion of human rights in inter-cultural dialogue with China seems to be rejected on the basis of the argument that human rights have not been challenged as normative standards. What should certainly be abandoned is the method of direct confrontation or indirect pressures which are not apt to exerting any influence at best or may produce counterproductive effects at worst.

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