Chinese Legal Culture
The legal culture of China, as well as its social and economic culture, continues to undergo dramatic change since the People’s Republic of China reforms of 1978. Transformation has occurred by legal modernisation whereby a rule of law has been suggested to replace the rule of man. The latter is a characteristic of the traditional rural Chinese society where unwritten rules, personal relationships and trust govern citizens’ ‘legal’ relationships; analogous to Gemeinschaft. In the modern society of China, institutional, customary and legal reform (a rule of law that embodies universal rules uniformly enforced by a centralised and bureaucratic state) is necessary to govern legal relations; analogous to Gesellschaft.
Direct transplants of western legal systems or culture may not provide an adequate rule of law where the life of ordinary Chinese may be marginalised in favour of legal elite who use legal instruments for self promotion. Furthermore, implanting western legal norms disregards the local culture and relations; thus potentially destroying significant cultural bonds and relationships in the rural community. The traditional rural Chinese legal culture which is premised on personal and informal relations faces erosion unless legal pluralism is promoted.
A top down approach in analysing the legal culture of China suggests that both under Deng Xiaoping and Jiang Zemin, China is ‘a country under rule by law, not rule of law.’ Evidence comes from post Mao-China, where law is seen as necessary for institutionalising and generalising ad hoc policies for economic reform and as maintaining party leadership.
Further problems with the Chinese legal culture include a piecemeal approach to law making with an imbalance between law and policy; denials of private law; neglect towards human rights and individual liberties; and poor enforcement of laws. According to Chen, the consensus in China among scholars is that the lack of democracy and rule of law are interdependent concepts whereby ‘the rule of law is legitimate only if it is the product of democratic government.’
What is evident with the China experience is that legal culture is susceptible to change in pursuance to socio-economic and political forces. While such a change could be beneficial for portions of the society and international relations, traditional and established cultural methods face extinction.
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