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Published online by Cambridge University Press: 17 February 2009
It is a commonplace that the writing of foreign observers often reveals as much about the assumptions of their own society as it does about those of the society they observe. Certainly, five centuries of Western commentary on the administration of justice in China support this proposition.
1 The quotation is from the chronicle of a Portuguese merchant named Perera who, together with others in his party, in about 1560 was tried and acquitted by a Chinese court in Macao on charges of piracy and resisting arrest. See Wigmore, John H, A Panorama of the World's Legal Systems (Washington, D.C.: Washington Law Book Co., 1936), pp. 155–156 and 177–178.Google Scholar
2 Fairbank, John K, Reischauer, Edwin O and Craig, Albert M, East Asia, The Modern Transformation (Boston: Houghton Mifflin, 1965), pp. 64–66.Google Scholar
3 See Bernard, Schwartz, The Roots of Freedom (N.Y.: Hill and Wang, 1967), pp. 198–199.Google Scholar
4 See Bernard, Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass: Belknap Press of Harvard University Press, 1967), pp. 74–75, 105–108.Google Scholar
5 Ibid. and Labaree, Leonard W, Royal Government in America (N.Y.: Frederick Ungar, 1958), pp. 388–401.Google Scholar
6 Massachusetts Constitution, Article 29 (1780); see also Hart, Henry M and Wechsler, Herbert L, The Federal Courts and the Federal System (Brooklyn, N.Y.: Foundation Press, 1953), pp. 7–8.Google Scholar
7 U.S. Constitution, Art. I, para. 6, Art. III, para. 1. Although Article III, Section 1, of the Constitution actually stated that federal judges “shall hold their Offices during good Behaviour,” on the basis of a century of previous Anglo-American experience that standard was viewed by many as importing permanency of tenure for all conscientious judges. See, e.g., The Federalist (N.Y.: Modern Library, n.d.), pp. 503, 505.
8 The quotation from Montesquieu was invoked by Alexander, Hamilton in The Federalist, No. 78Google Scholar; see ibid. at pp. 502 and 504.
9 See Dawson, John P, The Oracles of the Law (Ann Arbor: University of Michigan Law School, 1968), pp. 375–376, 379.Google Scholar
10 Huc, M, A Journey Through the Chinese Empire (N.Y.: Harper & Brothers, 1855), II, p. 253.Google Scholar
11 Ibid. p. 256.
12 Morse, H. B, The International Relations of the Chinese Empire (London and N.Y.: Longmans Green and Co., 1910), p. 116.Google Scholar
13 The quotation is from a Note sent by U.S. Minister J. V. A. MacMurray, 10 August 1929, which is reproduced in Chinese Social & Political Science Review (Peiping: Chinese Social & Political Science Assoc., 1929), XIII, pp. 158, 162.
14 Ch'ien, Tuan-sheng, The Government and Politics of China (Cambridge, Mass.: Harvard University Press, 1961), p. 249.Google Scholar
15 “Tyranny in ‘Free’ Formosa,” The Progressive, December 1967, pp. 32, 34.
16 “Revolutionary Theory Is Guide to Action: On the Dictatorship of the Proletariat,” Izvestia, 17 May 1964; English translation in Current Digest of the Soviet Press (CDSP), XVI, No. 21 (17 June 1964), p. 5.
17 Franz, Schurmann, Ideology and Organization in Communist China (Berkeley and Los Angeles: University of California Press, 1966), p. 180.Google Scholar
18 For a stimulating analysis of the role played by the American judge in comparison with his French and German counterparts, see Arthur T. von, Mehren, The Civil Law System (Englewood Cliffs, N.J.: Prentice-Hall, 1957), pp. 821–843.Google Scholar
19 Typically, the many state court judges who are required to run for office appear to behave no less independently than their brethren who enjoy life tenure, for judicial elections seldom attract voter interest and only occasionally unseat a judge. See Jack Ladinsky and Allan Silver, “Popular Democracy and Judicial Independence: Electorate and Elite Reactions to two Wisconsin Supreme Court Decisions,” Wisconsin Law Review (1967), pp. 128, 131–134.
20 For an interesting discussion of the conflict between the principle of judicial independence and the principle of the electorate's right to terminate the tenure of American state court judges who have rendered unpopular decisions, see generally ibid.
21 Berman, Harold J, Soviet Criminal Law and Procedure (Cambridge, Mass.: Harvard University Press, 1966), p. 102.Google Scholar
22 “All Are Equal Before the Law,” Partünaya Zhisn, No. 2, January 1963, pp. 50–52; English translation in CDSP, XV, No. 7 (13 March 1963), p. 10.
23 See Anderson, Raymond H, “Courts' Freedom Urged in Soviet,” N.Y. Times, 3 July 1966Google Scholar, p. 14; and Barry, Donald D and Berman, Harold J, “The Soviet Legal Profession,” Harvard Law Review, LXXXII (1968), pp. 1, 20.Google Scholar
24 Among the examples that come to mind are President Lincoln's suspension of the writ of habeas corpus and resort to summary arrests [see, e.g., Randall, James G, Constitutional Problems Under Lincoln (New York and London: D. Appleton, 1926), pp. 118–168Google Scholar]; Congressional removal of a case from the jurisdiction of the Supreme Court after the case had been argued but before it was decided [Ex parte McCardle, 7 Wall. 506 (1869)]; and President Franklin Roosevelt's wartime closing of the courts to “all persons who are subjects, citizens, or residents of any nation at war with the United States … and who during time of war enter or attempt to enter the United States … and are charged with committing or attempting … to commit sabotage” [Presidential Proclamation No. 2561, Federal Register, Vol. 7 (1942), p. 5101]. Congress recently came perilously close to reducing the Court's jurisdiction in retaliation for unpopular decisions; see Graham, Fred P, “Senate Upholds Supreme Court on Review Issue,” N.Y. Times, 22 May 1968, p. 1.Google Scholar
25 Political officials have frequently made public statements designed to influence judicial decision-making. For example, on the eve of the Supreme Court hearing of the claim that alleged Nazi saboteurs were entitled to a civil trial [Ex parte Quirin, 317 U.S. 1 (1942)], the New York Times reported that in Washington, D.C.: “On all sides hope was expressed that the Supreme Court would make short work of the move.” According to one authority: “The Times had put it mildly. … Representative Emmanuel Celler, in an interview, bluntly summarized congressional sentiment: ‘Our people are of the opinion that the eight Nazi saboteurs should be executed with all possible dispatch. … They are confident that the military tribunal will decree their death. Any interference with that trial by civil court would strike a severe blow to public morale.’” Mason, Alpheus T, Harlan Fiske Stone: Pillar of the Law (New York: Viking Press, 1956), p. 654.Google Scholar
Secret efforts of politicians to influence federal court decisions are not as readily documented. One that has come to light is President Buchanan's letter to Mr. Justice Grier urging him to take advantage of the opportunity presented by the Dred Scott case to settle agitation over slavery. “Buchanan's,” an historian has concluded, “… may well have been the deciding voice that determined the fateful Dred Scott decision. Had he not written to Grier, the latter might not have concurred; and had he not concurred, the five southern judges not in agreement on fundamentals might have finally refused to issue the dictum.” Nichols, Roy F, The Disruption of American Democracy (1967), p. 78.Google Scholar
26 For example, President Jefferson's attempt to purge the judiciary was in part a response to Federalist judges who had not only engaged in partisan political campaigning and imposed harsh punishments upon their Jeffersonian enemies in prosecutions for “sedition,” but who had also recently asserted the power to frustrate government policies by invalidating acts of Congress. See Henry, Adams, History of the United States of America During the Administration of Thomas Jefferson (N.Y.: Charles Scribner's, 1889), II, pp. 143–159Google Scholar; Williams, T. Harry, Current, Richard N, Frank, Freidel, A History of the United States (N.Y.: Alfred Knopf, 2nd ed., 1965), I, pp. 261–263Google Scholar; Morison, Samuel E and Commager, Henry S, The Growth of the American Republic (N.Y.: Oxford University Press, 4th ed., 1950), I, pp. 395–397.Google Scholar
Few have forgotten Franklin Roosevelt's attempt to “pack” a Supreme Court that had invalidated measures which the elected branches considered necessary.
27 Shao-chuan, Leng, Justice in Communist China (N.Y.: Oceana Press, 1967) (hereafter cited as “Leng”), Chapter 1, ably summarizes these pre-1949 developments.Google Scholar
28 See Article 10, Provisional Organic Regulations of People's Courts in the People's Republic of China, in (1951) Chung-yang jen-min cheng-fu fa-ling hui-pien (Peking: People's Press, 1953), pp. 79–85. In their administrative activities the courts were guided by the Ministry of Justice which was placed under the Government Administration Council.
29 Shen, Chun-ju, “Strengthen the People's Judicial Construction; Consolidate the People's Democratic Dictatorship,” Jen-min jih-pao (hereafter cited as People's Daily), 30 October 1951, p. 1.Google Scholar
30 Cohen, Jerome A, The Criminal Process in the People's Republic of China, 1949–1963: An Introduction (Cambridge, Mass.: Harvard University Press, 1968) (hereafter cited as “Cohen”), pp. 9–10.CrossRefGoogle Scholar
31 Leng, p. 35, summarizing a report from Ta-kung pao, Tientsin, 23 May 1951.
32 See Ch'ien (supra, note 14), pp. 227, 254.
33 Leng, p. 40.
34 The sources are collected in Leng, pp. 40–42.
35 Constitution of the People's Republic of China (hereafter cited as “Const.”), Article 80. The text of the Constitution may be found in Chung-hua jen-min kung-ho-kuo fa-kuei hui-pien (hereafter cited as FKHP), I (1954–55), pp. 4–31.
36 Const., Article 31 (5).
37 See Decision of the Standing Committee of the NPC of the CPR Relating to the Problem of Whether Presidents of Local People's Courts of the Various Levels etc., FKHP, II (1955), p. 71.
38 Const., Article 80.
39 After prescribing that local organs of the procuracy are to exercise their authority independently, Article 83 of the Constitution goes on to specify that they “are not subject to interference by local organs of state.” The Constitution also pointedly omits any statement that the procuracy, like the courts, is responsible to the local people's congress and must report to it. Compare Const., Articles 80 and 84.
40 Const., Articles 27, 28.
41 Const., Article 31.
42 Law of the CPR for the Organization of People's Courts [hereafter “Court Law”], Article 32, FKHP, I (1954–55), pp. 123–132. Assistant judges were to be appointed and removed by the Ministry of Justice and its subordinate units. Court Law, Article 34. After abolition of the Ministry of Justice, the courts themselves were given power to appoint and remove assistant judges. See Decision of the Standing Committee of the NPC of the CPR Relating to the Problem of Appointment and Removal of Assistant Judges, etc., FKHP, XI (1960), p. 120. Article 10 of the Court Law authorized court presidents at all levels to recommend to the agencies that appointed adjudication committees the names of persons who would be appropriate members.
43 Const., Article 74.
44 Law of the CPR for the Organization of People's Procuracies (hereafter “Procuracy Law”), Article 4 (4), FKHP, I (1954–55), pp. 133–138.
45 Procuracy Law, Article 14.
46 Court Law, Article 10.
47 Procuracy Law, Articles 15, 16.
48 Procuracy Law, Article 17.
49 Const., Article 83.
50 Chinese publications in English used a similar formulation. See, e.g., Shih, Liang, “The Judicial System in New China,” in People's China, No. 12 (16 June 1957), pp. 15, 17. (“No government body, no other organization or individual is allowed to interfere with the judicial business of the court or the decision it comes to.”)Google Scholar
51 Wang, Huai-an, “The Superiority of the People's Judicial System of our Country,” People's Daily, 16 October 1954, p. 3.Google Scholar
52 Wei, Wen-po, “Understanding the Basic Problems Concerning ‘The Law of the CPR for the Organization of People's Courts,’” Cheng-fa yen-chiu (hereafter cited as “Political-Legal Research”), No. 1, 1955Google Scholar, pp. 1, 3. For a similar approach, see also Chou, Fang, Wo-kuo kuo-chia chi-kou (Our Country's State Structure) (Peking: Chinese Youth Press, 1955), pp. 123–124.Google Scholar
53 See Huang, Yüan, Jen-min fa-yüan chi-pen chih-shih chiang-hua (Lectures on Basic Knowledge About the People's Courts) (Canton: Canton People's Press, 1956), pp. 18–20.Google Scholar
54 Liu, K'un-lin, “Understanding ‘People's Courts Shall Conduct Adjudication Independently and Shall Be Subject Only to the Law,’” Political-Legal Research, No. 1, 1955, pp. 35, 37.Google Scholar
55 Ibid. pp. 38–40.
56 “Speech by Comrade Tung Pi-wu,” in Eighth National Congress of the CCP (English version, Peking: Foreign Languages Press, 1956), II, pp. 79–97.
57 Quoted from Cohen, pp. 487–488.
58 Sir Douglas, Robert K, Society in China (London: A. D. Innes, 1895), pp. 112–113.Google Scholar
59 Wu, Te-feng “Struggle in Order to Defend the Socialist Legal System,” Political-Legal Research, No. 1, 1958, pp. 10, 16.Google Scholar
For footnote 60 see p. 143.
60 See Chung-kuo jen-min ta-hsüeh, fa-lü hsi, kuo-chia yü fa-ch'üan li-lun chiao-yen shih (Office of Teaching and Research of State and Law, Law Department, Chinese People's University), Lun jen-min min-chu chuan-cheng ho jen-min min-chu fa-chih (On the People's Democratic Dictatorship and the People's Democratic Legal System) (hereafter cited as “Legal Treatise”) (Peking: 1958), p. 226.
61 See “What Shortcomings Are There in the Work of the Supreme People's Court?” People's Daily, 21 May 1957, p. 2.
62 See, e.g., “The Supreme Court Wins a Great Victory in the Struggle Against the Rightists,” People's Daily, 12 December 1957, p. 4; Jo, Ch'üan and Ho, Fang, “No Perversion of the Nature of the People's Courts is Allowed,” People's Daily, 24 December 1957Google Scholar, p. 7; and Feng, Jo-ch'üan, “Refute Chia Ch'ien's Anti-Party Nonsense About ‘Independent Adjudication,’” Political-Legal Research, No. 1, 1958, p. 18. Substantial portions of the last two articles are virtually identical, and the author of the latter may have co-authored the former. Feng Jo-ch'üan's article is the most comprehensive attack upon Chia, and data concerning both Chia's contentions and the Party's reply have been taken from it.Google Scholar
63 Feng Jo-ch'üan (supra, note 62), p. 20.
64 Chang, Wu-yün, “Smash Permanent Rules, Go 1,000 Li in One Day,” Political-Legal Research, No. 5, 1958, pp. 58, 60.Google Scholar
65 See, e.g., Ch'i, Wen, “We Must Thoroughly Liquidate the Bourgeois Ideological Influence of ‘Independent Adjudication,’” Political-Legal Research, No. 2, 1960, pp. 52, 56.Google Scholar
66 “Canton's Political-Legal Departments Experiment with Co-operation in Handling Cases,” Nan-fang jih-pao (Southern Daily), 30 March 1958.
67 See, e.g., Chang Wu-yün (supra, note 64), pp. 58–59.
68 See “Canton's Political-Legal Departments, etc.” (supra, note 66).
69 See Jen, Chen-to and Ho, En-t'ao, “How to Establish China's New System of Criminal Litigation,” Chi-lin ta-hsüeh jen-wen k'o-hsüeh hsüeh-pao (Kirin University Journal of Humanistic Sciences), No. 2, 1959, pp. 121, 123.Google Scholar
70 For discussion of interviewing's value to the legal field and the difficulties involved, see Cohen, Jerome A, “Interviewing Chinese Refugees: Indispensable Aid to Legal Research on China,” Journal of Legal Education, XX (1967), pp. 33–62.Google Scholar
71 Not long after my own interviews with this informant, Professors A. Doak Barnett and Ezra Vogel interviewed him extensively concerning the entire range of Party-government relations at the county level. See Barnett, A. Doak, Cadres, Bureaucracy and Political Power in Communist China (N.Y.: Columbia University Press, 1967), Part II, especially pp. 195–197, 219 et seq.Google Scholar
72 Ch'i Wen (supra, note 65), p. 55.
73 Barnett (supra, note 71), p. 220.
74 See, e.g., Lo, Jui-ch'ing, “Public Security Work Must Further Implement the Mass Line,” Political-Legal Research, No. 3, 1958, pp. 23, 26–27.Google Scholar
75 Wu Te-feng (supra, note 59), p. 14.
76 Liu, Tse-chün, “Realizations From My Adjudication Work,” Political-Legal Research, No. 1, 1959, p. 48.Google Scholar
77 Li, Mu-an, “Censure Independent Adjudication that Proceeds from Concepts of the Old Law,” Political-Legal Research, No. 1, 1958, pp. 24, 26.Google Scholar
78 Legal Treatise (supra, note 60), p. 225.
79 Ibid. p. 220.
80 Li Mu-an (supra, note 77), p. 26.
81 Liu Tse-chün (supra, note 76), p. 48.
82 Wu Te-feng (supra, note 59), p. 14.
83 Liu Tse-chün (supra, note 76), p. 48.
84 Legal Treatise (supra, note 60), p. 225.
85 Ibid. pp. 225–226.
86 Liu Tse-chün (supra, note 76), p. 48.
87 Chang Wu-yün (supra, note 64), p. 59.
88 See text at note 17, supra.
89 Nikolai, Lenin, Selected Works (Moscow, 1947), Vol. II, p. 332.Google Scholar
90 Alexis de, Tocqueville, De la Démocratie en AmériqueGoogle Scholar, p. 8, quoted in Otto, Kirchheimer, Political Justice (Princeton: Princeton University Press, 1961), p. 3.Google Scholar
91 See generally Kirchheimer, ibid. especially Chapter I.
92 For a stimulating discussion of the utility for comparative purposes of analysing every society's law enforcement apparatus as a community of organizations, see Pfeffer, Richard M, “Crime and Punishment, China and the United States,” World Politics, XXI (1968), pp. 152, 155–156.Google Scholar
93 In 1947 Lin Po-ch'ü, chairman of the Shen-Kan-Ning Border Region government, “pointed out that in order to continue the development of democracy it was necessary to see the judiciary try cases independently, subject only to the law. …” During this period, when the Communists were seeking to mobilize broad popular support, they “talked much about political democracy and the rule of law.” Leng, p. 19.
94 Tung Pi-wu (supra, note 56), p. 84.
95 Ibid. pp. 91–93. For a similar explanation by Wu Te-feng, who attributed the miniscule number of lawyers in the C.P.R. to popular distrust of lawyers deriving from pre-Communist experience, see Kawasaki, Mitsunari, “The Attorney System,” in Chūgoku no hō to shakai (Chinese Law and Society) (Tokyo, 1960)Google Scholar, p. 80. And for Chiang Kai-shek's view that twentieth-century China's disdain for law should be traced to the existence of foreign concessions and garrisoned areas and to the feudal partitioning of the country under warlords, see Chiang, Kai-shek, China's Destiny (Jaffe, ed., N.Y.: Roy Publishers, 1947), p. 212.Google Scholar
96 Pye, , “Law and The Dilemma of Stability and Change in the Modernization Process,” Vanderbilt Law Review, Vol. 15, p. 26, 1965.Google Scholar
97 Ibid. pp. 26–27.
98 For Japan's assimilation of European law, see Takayanagi, , “A Century of Innovation: The Development of Japanese Law, 1868–1961,” in Law in Japan (Mehren, A. von ed., 1963)Google Scholar, pp. 5 and 9–10. For the analogous but less successful experience of Tsarist, Russia, see Kucherov, S, Courts, Lawyers and Trials under the last three Tsars (1953), pp. 92–97.Google Scholar
99 See Barry and Berman (supra, note 23), pp. 22–24.
