IDEOLOGICAL USES OF HISTORIOGRAPHY

Many uses of legal historiography may be understood through individual legal scholars’ ideological projects. Surveys of Chinese legal scholarship have identified a number of competing, “ideological” positions on politically meaningful questions in Chinese legal academy (A. Chen Reference Chen1999–2000; Seppänen Reference Seppänen2020). For instance, Chinese legal scholars have adopted different ideological positions regarding the expansion of the Party’s internal discipline supervision and intraparty regulations to Chinese state organs (Seppänen Reference Seppänen2020, 203). Conservatively minded scholars generally support such reforms, arguing that they enhance the government’s anti-graft work and increase the Party’s power (W. Zhang 2019). Liberal-minded scholars oppose the expansion of the Party’s power into Chinese state organs, arguing that the Party’s extralegal uses of power dilute the rule of law (Tong Reference Tong2014). Politically centrist “mainstream” scholars refrain from explicitly opposing the expansion of Party organs into the state and instead seek to limit the effects of such expansion by insisting on the importance of legality and rule-based governance within the Party’s disciplinary process (Qin Reference Qin2016, 53). Finally, “neo-conservative” scholars support the Party’s political status through theoretically heterodox arguments and express doubts about the increased bureaucratization of the Party organization (S. Jiang Reference Jiang2016, 38).

To be sure, describing hundreds of scholars through a small number of ideological positions is a radically reductionist exercise, which intentionally leaves out sui generis viewpoints and ignores nuances between individual scholars. Moreover, ideological positions should be regarded as being similar to religious beliefs, which can coexist with common-sense observations about the world and which consequently do not constitute the totality of a person’s belief system (Geertz Reference Geertz1993, 119).Footnote ⁸ Nevertheless, ideological reductionism can be informative for anybody seeking to understand a particular discourse (White Reference White1973, 24). Ideological positions, for instance, may render Chinese debates on comparative law more easily accessible to foreign scholars. Specific arguments about comparative law (regarding, say, the possibility of legal transplantation) may support larger ideological projects (such as the advocacy of liberal legal reforms) and constitute veiled criticism of one’s ideological opponents (Seppänen Reference Seppänen2020, 190–91, 220).

In a similar way, the reductionist mapping of ideological positions helps one understand Chinese legal scholars’ uses of historiography. From a reductionist perspective, it can be noted that the conservative, pro-establishment agenda presents Chinese legal history as a progress story, where an ever-strengthening judicial system has steadily enhanced its internal rationality, external enforcement capabilities, and rights protections (Zhongguo Zhengfa daxue falü shixue yanjiuyuan Reference Ming’an2008, 585).Footnote ⁹ The textbook version of this narrative describes the organically harmonious beginnings of Chinese law, the tragic fall of traditional Chinese law at the hands of foreign invaders, and the triumphant emergence of the socialist rule of law under CCP leadership (608–10). In the past few years, CCP ideologues have presented “Xi Jinping Thought on the Rule of Law” as the culmination of this historical development process (Y. Chen Reference Chen2020). Pro-establishment historiography has also supported the personification of CCP leadership by writing President Xi Jinping into crucial junctures of Chinese legal history. Zhang Wenxian (Reference Zhang2021, 5), a prominent Chinese legal scholar, has credited Xi for “courageously proposing” the establishment of a new socialist legal system in the early 1980s when he was still a deputy secretary of a county-level CCP committee. Zhang’s reinterpretation of China’s modern history may be seen as an example of a pro-establishment legal scholar’s response to the ideological demands in Xi Jinping’s China. Zhang is deeply embedded in the Chinese party-state. During his tenure at Jilin University, Zhang held a high leadership role at the university’s Party administration and in the Jilin judiciary, and he presided over national projects to review Chinese legal and political concepts (He et al. Reference He Qinhua, Haitao, Jiaxin, Ran, Man, Jiaji, Yongqiang, Xuan and Qiong2009). Whereas Zhang Wenxian (Reference Zhang2006) promoted individual rights protections in the early 2000s, in his more recent writings, he has argued for the strengthening of the CCP and Xi Jinping’s leadership (W. Zhang 2021). The above-mentioned CCP Central Committee’s (2021) resolution on Party history, adopted in November 2021, solidifies the new narrative on Chinese history and the development of global Marxism. In contrast to the two previous CCP Central Committee (1945, 1981) resolutions on history, adopted in 1945 and 1981, the focus of the 2021 resolution is not on rectifying the “leftist” and “rightist” errors of past Party leaders. Whereas the rectification of errors suggests that Party leaders are fallible, the 2021 resolution seeks to portray an image of the historical inevitability of CCP rule and Xi’s leadership. The 2021 resolution briefly acknowledges leftist and rightist errors in Party history, as well as the “catastrophic Cultural Revolution,” but these errors are given less space compared to the two previous resolutions. Instead of focusing on the infighting and political disagreements within the Party, the 2021 resolution celebrates the Party’s achievements and describes the substantive content of CCP ideology in ahistorical terms.

In addition to presenting modern Chinese history as a progress narrative, pro-establishment historiography emphasizes and endorses the uniqueness of Chinese culture. In The Governance of China, a seminal work in the study of “Xi Jinping Thought,” Xi Jinping (Reference Xi2014) discusses the relationship between China and other civilizations through historical anecdotes. Citing Mencius, Xi explains that “[a]s early as over 2,000 years ago, the Chinese people came to recognize that ‘it is natural for things to be different’” (284). While Xi accepts that “exchanges and mutual learning among civilizations can further enrich the colours of various civilizations,” he also stresses that all “civilizations are equal” (284). For Xi, the lessons from history ultimately boil down to the need to reject radical foreign influences in China: “Having gone through over 5,000 years of vicissitudes, the Chinese civilization has always kept to its original root” (285).

In contrast to establishment historiography, liberal-minded Chinese scholars have sought to reform China’s legal and political system in accordance with foreign liberal democratic models. Chinese liberals operate in a public sphere that has existed, to a greater or lesser extent, throughout the People’s Republic. The space to criticize the party-state expanded considerably in 1990s and early 2000s with the loosening of ideological controls, the introduction of online publication platforms, and the globalization of the Chinese academy (Cheek, Ownby, and Fogel Reference Cheek, Ownby and Fogel2018, 108–9). As part of the liberal project, liberal intellectuals describe China’s modern history more as a tragedy than a triumph (Tang and McConaghy Reference Tang and McConaghy2018, 123–24). For instance, He Weifang (2012, 134), a professor at Peking University and a devotional liberal, contends that “China’s premodern society … failed to produce a legitimate and professionalized class of lawyers.” The late Qing legal reforms “had … key shortcomings” and “[w]ith the raise of Marxism … law lost its autonomy … and degenerated into legal anarchy” (137–38). At the same time, He Weifang insists that liberal political thought has analogies in Chinese traditional thought. Reading the same text by Mencius as Xi Jinping (Reference Xi2014, 285), He Weifang (2012, 56) contends that Mencius “put human rights above sovereign rights, rejecting today’s popular principle of ‘noninterference in international affairs.’”Footnote ¹⁰

He Weifang’s reading of Mencius conforms to his ideological leanings and intellectual background. He developed an appreciation for the rule of law and human rights through the study of the Chinese Cultural Revolution and its comparison to Western Enlightenment ideology in the 1980s (W. He Reference He2012, xxv–xxvi)]. He’s respect for Western legal and political institutions was further strengthened through research visits to the University of Michigan and the East Asian Legal Studies program at Harvard Law School in the 1990s (xxvi–xxvii). He assumed a role of a liberal public intellectual during the early 2000s, once even contending that the extralegal nature of the Chinese party-state was a “violation of the [PRC] Constitution and law” (xxviii). Scholars believe that this and other acts of activism caused He Weifang a number of difficulties. He famously spent two years teaching in a remote town in China’s northwest (xxxi).

Other liberal-minded Chinese legal scholars highlight the historically contingent nature of Chinese legal institutions. From this perspective, Party leaders’ illiberal understanding of constitutionalism can be attributed to the need to enforce strong political leadership during the civil war with Kuomintang, the Chinese Nationalist Party (Lin Reference Lin2009, 45–46). Since China is no longer in a state of emergency, the argument goes, it can now move toward liberal constitutionalism and strengthen the protection of individual rights and checks on government power (48). Historiography, therefore, demonstrates that existing political and legal institutions are not timeless and inevitable but that they can be changed (Gordon Reference Gordon1981, 1023–24). To be sure, the argument about the historically contingent nature of legal institutions also supports pro-establishment historiography. The most recent CCP Central Committee (2021) resolution on Party history argues that “[the] Party has always stayed grounded in China’s conditions and felt out a right path consistent with China’s realities.” From the conservative socialist perspective, China’s present political and legal institutions reflect its historical conditions better than any Western alternative.

The more politically explicit and ahistorical a liberal-minded historiographic critique of China’s leadership becomes, the more likely it is that it will be censored and its author sanctioned. Xu Zhangrun’s (Reference Xu and Geremie2021) widely circulated essays on modern Chinese history offer a recent example of such censorship.Footnote ¹¹ As is the case with He Weifang (Reference He2010, Reference He2012), the liberal-minded Xu Zhangrun (Reference Xu and Geremie2021) views modern China in tragic terms, characterizing the country’s recent turn toward increased political control as a potentially fatal setback for China’s modernization efforts. However, in contrast to He Weifang (Reference He2012), Xu (Reference Xu and Geremie2021) presents his critique explicitly against Xi’s regime, without making use of ambiguous figurative language. Xu was dismissed from his chair at Tsinghua University Law School in 2020 after publishing his critical views (R. Guo Reference Guo2021). The more elusive He Weifang has not been dismissed from his position at Peking University, but he is less publicly active today than in the early 2000s (Minzner Reference Minzner2019). The circumstances of these two notable liberals reflects the turning tide of Chinese liberalism. Liberal critiques have been marginalized in China due to the economic and political crises in the West and the rise of Chinese nationalism (Tang and McConaghy Reference Tang and McConaghy2018, 122) as well as the tightening of ideological controls in the Chinese public sphere (Hao and Guo Reference Hao, Guo, Zhidong and Zabielskis2020, 88).

The politically centrist mainstream of Chinese legal scholarship balances between the above-described liberal and conservative positions. The mainstream historiographic narrative proceeds from struggle to triumph, but it may also include a tragic element, which describes China’s current political reality as much as a historical necessity as the people’s choice. In Hayden White’s (Reference White1973, 231) terms, a mode of emplotment for mainstream Chinese legal historiography can be described as romance. The tragic elements in this narrative refer to “destiny … apprehended as ‘blind fate’” (85). This narrative structure follows a common developmentalist narrative, which holds that China’s transformation, while impressive, “has been blocked by the actors that benefited from early growth” (World Bank 2017, 42).

With respect to their political views, centrist scholars seek nuanced positions between conservative and liberal agendas. For instance, Xia Yong (Reference Xia2014), a former director of the Institute of Law of the Chinese Academy of Social Sciences and a high-ranking official, has advanced a middle-of-the-road interpretation of Mencius’s above-discussed writings. In Xia’s view, Chinese “civil rights” are not the same as Western civil rights, but neither is the notion of popular sovereignty completely alien to Chinese culture. Xia (Reference Xia2014, 37) notes that “[i]n Mencius, the people are accorded to a far greater degree the subjective status to exercise judgment and make decisions themselves,” and that “the key mission of benevolent government [is] the nurturing and education of the people.” While Xia (Reference Xia2014, 83) acknowledges that “we will not find in the Chinese canon the words ‘rights’ or ‘human rights’ or the technical language of Western natural law and rights,” he also argues that “we cannot deny that the Chinese tradition had its own concepts of natural law and natural rights.” Xia’s reading of Mencius is reformist but not radically so. Nevertheless, as conservative voices insisting on ideological orthodoxy grow stronger in Chinese legal academy, the mainstream balancing act has become increasingly difficult to maintain.Footnote ¹² Xia Yong himself was purged in Xi Jinping’s anti-graft campaign in 2016.Footnote ¹³

In the view of some Chinese scholars, the tragedy of Chinese history lies in its unwitting acceptance of Western ideologies and, in particular, “neoliberalism.” The late Deng Zhenglai (Reference Deng2014, 65), a forebearer of such critique, argued in the early 2000s that Chinese scholars had lost their ability for critical thought through the idealization of Western modernization theories. Deng’s personal development turned him from a Hayekian defender of civil society to a critic of Western liberalism and an advocate of the localization of Chinese legal and political thought (ix–x, xxviii–xxix; see also McCormick and Kelly Reference McCormick and Kelly1994, 813). Similarly, Wang Hui (Reference Wang2009, xi), a prominent social historian and public intellectual (albeit not a legal scholar), maintained in the early 2000s that the enemy of China’s development was Western “neoliberalism,” which had ended China’s “revolutionary century [and] … self-reform.” In his recent writings, Wang Hui (Reference Wang2020) has adopted a more triumphant narrative. In an essay on Lenin’s legacy, he attacks the defeatist narrative on Chinese history (which he himself used to produce), arguing now that the Marxist revolution should be seen as continuous struggle, which has not yet come to its conclusion. Wang’s newly found optimism supports the Party’s attempt to narrate China’s modern history as a national rejuvenation (CCP Central Committee 2021). Finally, a small number of Chinese “New Confucian” scholars have attempted to reform Chinese political thought on the basis of classical literary sources.Footnote ¹⁴ This branch of scholarship is discussed in the following section.

To conclude, ideological explanations are helpful for accounting for Chinese legal historians’ motives, as is true of historiography elsewhere (White Reference White1973, 24). Of course, legal historians themselves may not always agree with such explanations. Marxist historiography is committed to studying material historical relations, not their ideological representations (Marx Reference Marx and Robert1978, 149). Similarly, the historical school of jurisprudence, which flourished in nineteenth- and early twentieth-century Europe, defined its project as the factual understanding of historical developments, including the formation of ideological viewpoints (Tamanaha Reference Tamanaha2015, 2240, 2258; Eldridge Reference Eldridge2021, 203, 212).Footnote ¹⁵ Mainstream Chinese historiography has likewise attempted to take the form of a professionalized, non-ideological discourse (Zhongguo Zhengfa daxue falü shixue yanjiuyuan Reference Ming’an2008, 591–96). Nevertheless, even those historiographic studies, which lack an obvious ideological project—say, a study on marriage and inheritance in China during the Qing dynasty—may be interpreted against the background of ideological explanations.Footnote ¹⁶

HISTORIOGRAPHIC LICENSE

The previous section sought to demonstrate that Chinese legal historians engage with historical materials in order to advance various ideological projects. This may be an unsurprising finding in a political regime, which defines its governance ideology based on a historiographic method (that is, historical materialism) (CCP Central Committee 2021; Xi Reference Xi2021). What may be more unexpected about the uses of historiography is the relative freedom that the historiographic genre affords to Chinese legal scholars. This space was particularly obvious in the early reform era (R. Lin Reference Lin1999, 160; Lü Reference Lü2020, 181). It still has not disappeared entirely, although ideological space has become more constrained in Chinese universities in the past few years (Wong and Kwong Reference Wong and Kwong2019, 288; Hao and Guo Reference Hao, Guo, Zhidong and Zabielskis2020, 86–87; Yang Reference Yang2021, 6).

Up until the late 1970s, CCP leaders and establishment scholars considered the borrowing of legal institutions from ancient Chinese and contemporary Western law a taboo (or a “forbidden zone” [jinqu, 禁区]) (Zhao and Liu Reference Zhao and Liu2019, 12). In the 1960s, Chinese historians were denounced for the mere suggestion that Confucian concepts could have been relevant to socialist China (Kahn and Feuerwerker Reference Kahn, Feuerwerker and Feuerwerker1968, 3). Such taboos were broken in historiographic research. Encouraged by a free-spirited discussion in a legal history seminar in 1979, Lin Rongnian (Reference Lin1980), a professor at Renmin University, published an article on the relevance of pre-revolutionary legal concepts to the socialist project. Lin’s substantive argument was akin to the Marxist legal historian E. P. Thompson’s (Reference Thompson1975, 266) characterization of “the rule of law” as an “an unqualified human good.” In Lin’s view, the flourishing of exploitative classes depended on a legal system, which was characterized by objectivity and reasonableness rather than mere exploitation. Lin Rongnian (Reference Lin1980, 283) believed that elements of the pre-revolutionary bourgeois law could “be considered by the proletariat as a precious cultural heritage and … inherited critically.” Chinese legal scholars have later noted that Lin’s scholarship played a positive role in “invigorating the academic atmosphere” of the early reform era (Y. Guo Reference Guo2018, 123).Footnote ¹⁷ Lin stood out among Chinese legal scholars as a promoter of socialist human rights (Svensson Reference Svensson2002, 248–49). In the 1970s and the 1980s, similar historiographic studies allowed Chinese legal scholars to “break through the constraints of political leadership, historical nihilism, and dogmatic and formulaic Marxism” (Lü Reference Lü2020, 181).

Chinese legal historiography still accommodates a wider range of ideological arguments than other forms of legal scholarship, such as jurisprudence and doctrinal constitutional law. The historical perspective allows scholars to examine ideological doctrines in their socially contingent, historicized form. A striking example of this praxis is provided by Jiang Shigong (Reference Jiang2014), a constitutional law scholar at the prestigious Peking University, who engages in theoretically iconoclastic, albeit politically conservative, constitutional, and historiographic research. In China, Jiang is a relatively prominent, but controversial, figure, whose staunch nationalism has been criticized by liberal-minded scholars (A. Li Reference Li2013; Zhu, Qu, and Zhai Reference Zhu, Qu, Zhai and Hua2022, 136). Abroad, Jiang is one of the few contemporary Chinese legal scholars, whose views are closely studied and debated (Zhu, Qu, and Zhai Reference Zhu, Qu, Zhai and Hua2022, 136).Footnote ¹⁸

Jiang Shigong advances politically meaningful interpretations of history, not all of which conform to Party ideology (Davies Reference Davies, Golley and Linda Jaivin2019, 46–47). Jiang (Reference Jiang2014, 208) has argued that “communism represents an idiosyncratic episode in China’s history, when the Chinese people were under existential threat and became desperate for a gospel of salvation.” In his view, “communism remains grounded in Judeo-Christian linear temporality,” where “it merely replaced redemption theology with historical determinism to fulfil the internal spiritual needs of the individual” (207). Building on these observations, Jiang (Reference Jiang2014, 207; emphasis in original) argues that “communism is merely the counterpart of liberalism” and, consequently, “perhaps intrinsically incompatible with the spirit of the Chinese people.” Jiang further maintains that “traditional Confucianism, not Marxist ideology, is the substantive spiritual pillar for the CCP” (208).

Jiang Shigong’s heterodox statements (described above and which, it must be noted, were intended for a foreign journal) illustrate how Chinese legal scholars use historiography to demonstrate the historical contingency and contemporary malleability of ideological arrangements. To be sure, Jiang may enjoy a more extensive ideological license than many other Chinese scholars because of his staunch conservatism, government connections, and appointment at the elite Peking University. Nevertheless, the historiographic genre has enabled various Chinese legal scholars to offer frank assessments about the nature of the Chinese party-state. As mentioned above, the historiographic genre has allowed Chinese legal scholars to criticize Chinese-style constitutionalism, which conflates constitutionalism with “democratic governance,” instead of promoting Western-style checks and balances on government power. According to Lin Laifan (Reference Lin2009, 46–48) from Tsinghua University, the Chinese approach to constitutionalism originated in the “political propaganda” of the civil war era, which now needs to be rethought. In a similar vein, Zheng Chengliang (Reference Zheng2014, 70) from Shanghai’s Jiao Tong University has argued that “the rule of law” (fazhi, 法治) cannot be meaningfully realized through China’s ideologically outdated Marxist-Leninist dictatorship. He believes that a Roman-style transitional dictatorship may be plausibly used to safeguard the rule of law in a state of emergency (66–69). A Marxist-Leninist dictatorial government, in contrast, is intended to stand above the law permanently and is therefore necessarily incompatible with the rule of law.

It is possible to find a number of similar examples of the historiographic license. A study on the autonomy of Chinese universities highlights the historical wisdom of Republican era universities, which protected academic staff against political interventions, suggesting that Party leadership of contemporary Chinese universities should be reconsidered (Bao and Xue Reference Bao2019, 202). An article on the CCP’s internal rules calls China’s experience with Marxism tortuous and describes its one-party system as having both negative and positive aspects (Ye Reference Ye2021, 18). A study on Confucian “rites” (li, 礼) and late Qing, early Republican constitutionalism describes China’s present constitution as unsatisfactory and argues that it cannot bring about a value consensus in contemporary China (X. Ma 2021).

Criticizing Party leadership through concepts such as “constitutionalism” and “the rule of law” violates the Party’s explicit ideological guidelines (Chinafile 2013). Nevertheless, whereas direct criticism of the Chinese party-state and its guiding ideology may have serious consequences for a scholar’s career, CCP censors have tolerated even radically reformist ideas when they have been made through historical scholarship and historical materials. This is the case even though “historical nihilism,” or the rejection of “the accepted conclusions on historical events and figures,” is formally prohibited (Chinafile 2013). The most far-reaching proposals have been made within the so-called New Confucian movement, which aims to revitalize political Confucianism in China (Angle Reference Angle2018, 86). Jiang Qing (Reference Jiang, Daniel and Ryden2013), a prominent mainland New Confucian scholar, advocated the establishment of a tricameral legislature in China in the early 2000s. The houses of this new legislature would have represented the general public, the Confucian elite, and the descendants of Confucius himself (67). Jiang presented his proposal as explicit critique of Sinicized Marxism (65), and his audience understood his message as a rejection of the CCP’s revolutionary heritage (Angle Reference Angle2018, 90; Deng and Smith Reference Deng and Smith2018, 305).

The reception of Jiang Qing’s (Reference Jiang, Daniel and Ryden2013) version of political Confucianism in China has been largely critical, and his scholarship poses no realistic political risk to the CCP (Angle Reference Angle2018, 87; Deng and Smith Reference Deng and Smith2018, 301–2). Nevertheless, Jiang’s proposals might have been perceived as a serious ideological transgression had they not been anchored in quintessentially Chinese historical sources.Footnote ¹⁹ Jiang’s scholarship has been discussed even in the tightened political climate of Xi Jinping’s China (Tang Reference Tang2018, 131).Footnote ²⁰ Rather than repressing New Confucianism, the Chinese party-state has assimilated aspects of it, such as the cultural critiques of Western liberalism and the emphasis on social harmony (Deng and Smith Reference Deng and Smith2018, 304–6).

The differences between the various genres of Chinese legal scholarship are most obvious when ahistorical statements and historical narratives clash within a single text. Chinese legal historians commonly attest to the importance of Marxist historical materialism in their ahistorical theoretical statements about historiography, which are typically found in the methodological parts of research outputs (Han Reference Han2003, 128; Zhongguo Zhengfa daxue falü shixue yanjiuyuan Reference Ming’an2008, 573). However, when these texts move on to describing the actual development of Chinese legal historiography, they sometimes end up casting doubt on the validity of Marxist historical materialism. For instance, when narrating the development of Chinese legal historiography in the past few decades, some Chinese legal historians contrast historical materialism unfavorably with the more recent methods of legal historiography, such as historical jurisprudence, sociology, and cultural studies (Han Reference Han2003, 132; Zhongguo Zhengfa daxue falü shixue yanjiuyuan Reference Ming’an2008, 593, 596).

Even thoroughly vetted university-level textbooks contain slippage about Marxist historical materialism. Falixue (2020, 56), a university-level textbook on jurisprudence endorsed by the Chinese Ministry of Education as part of the Marxist textbook series, asserts that “the basic content and nature of the legal system are always compatible with the relations of production of the society in which it is located.” The textbook also asserts, in the same theoretical register, that “in the history of legal development there have been four successive historical categories of legal systems: the legal systems of slave societies, the legal system of feudalism, the capitalist legal system and the socialist legal system” (56). However, when the textbook moves on to describing the historical development of Chinese legal thought, it argues that China should “absorb and carry forward reasonable ideas from traditional legal thought” (215). According to the textbook, such ideas include: (1) “people-oriented thinking and democracy,” which “can well become a traditional ideological basis for modern civil rights and democracy”; (2) “the ancient rule of law conception”; and (3) “the idea of governing by virtue,” which “has still positive significance for moral education in a rule of law society as regards promoting law-abiding behavior and preventing crimes” (214–15). In the legal theoretical mode, the textbook emphasizes historical discontinuities through Marxist historical materialism; in the historical mode, the textbook makes a case for historical continuities without references to Marxism.

In the 2000s, prominent Chinese legal historians were critical of even superficial references to Marxist historical stages in legal history textbooks, noting that a majority of Chinese historians at the time rejected such categories (Zhongguo Zhengfa daxue falü shixue yanjiuyuan Reference Ming’an2008, 596). More recently, conservatively orientated Chinese legal scholars have observed, and criticized, the failure of mainstream Chinese legal scholars to conform historiographic narratives with Marxism. Professor He Zhipeng (Reference He2021, 25) of Jilin University has noted that, while many Chinese scholars acknowledge dialectical and historical materialism in their theoretical and methodological statements, “they can easily get lost in traditional Western theories” when they start describing specific historical events. The discrepancy between ahistorical theoretical statements about Marxism and historical narratives suggests that Marxism has not been as thoroughly adopted throughout the Chinese legal academy as Party ideologues may wish or insist. In some instances, the discrepancy between the two registers may be intentional. Paraphrasing Joseph Levenson (Reference Levenson1965, 85–86), it can be noted that, for many Chinese legal historians, Marxism has become a “(merely) historically significant” ideological strand. Even when a Chinese legal scholar is not motivated by a self-conscious agenda to undermine conventional ideology, the ability to produce non-orthodox historiography establishes alternative historical narratives, which may ultimately cast doubt on central aspects of Party ideology.Footnote ²¹

RHETORICAL TECHNIQUES OF LEGAL HISTORIOGRAPHY

Politically subversive legal historical research can be seen as a subset of Aesopian language, which creates prohibited meanings through ostensibly innocuous surface speech (Savinitch Reference Savinitch and Grillo2005, 109). The term “Aesopian language” has been used to describe dissident rhetoric in nineteenth-century Tsarist Russia (108). Liberal and Marxist political dissidents in Tsarist Russia evaded censorship through figurative language, concealing their political messages, for instance, through suggestive synonyms and indirect speech (111, 114). In contemporary China, liberal-minded and centrist legal scholars make use of similar rhetorical strategies as nineteenth-century Russian political dissidents. Chinese academic discourse has been marked by conceptual obliqueness, which makes use of seemingly inoffensive academic jargon in order to deliver (moderately) critical messages (Cheek, Ownby, and Fogel Reference Cheek, Ownby and Fogel2018, 111). Chinese constitutional lawyers speak of “the independent exercise of judicial and prosecutory power” (duli xingshi shenpanquan, jianchaquan, 独立行使审判权, 检察权) instead of the taboo topic “judicial independence” (sifa duli, 司法独立) (Bandurski Reference Bandurski2015). They also refer to “governing in accordance with the constitution” (yixian zhizheng, 依宪执政) instead of the taboo term “constitutional governance” (xianzheng, 宪政) (Bandurski Reference Bandurski2015). Such strategies keep reformist aspirations alive in a politically non-confrontational manner. Nevertheless, the subversive uses of these terms and other euphemisms are limited. In order to be politically acceptable—and publishable—euphemisms have to rely on language, which is tolerated by ideological censors (Perelman Reference Perelman1969, 467). The above-described Chinese language terms were launched and promoted by Party ideologues as alternatives to “Western” ideological concepts (Bandurski Reference Bandurski2015), and their use can be seen to signal submission to the Party’s project to indigenize Chinese legal thought.

While all fields of legal scholarship can accommodate some amount of Aesopian language, historiography is particularly conducive for subversive rhetorical techniques. This is because a central feature of Aesopian language—figurative speech—plays a more prominent role in historiography than in other fields of law, such as jurisprudence and doctrinal constitutional law. Linguistic historians have argued that figurative speech forms “the basic structure of historical explanations” (White Reference White1975, 53; Kellner Reference Kellner1989, 285). In order for historical narratives to be meaningful at all, historical concepts and events must stand figuratively for something that their present-day readers recognize (White Reference White1975, 49; Kellner Reference Kellner1989, 10–11). As is the case with Aesopian language, the figurative nature of historical narratives is seldom made explicit in historiography, which instead strives to give its audience an impression of objectivity (White Reference White1975, 64). Both Aesopian language and historiography, therefore, create hidden levels of meaning under ostensibly innocuous surface texts using metaphors, metonyms, and other tropes of figurative speech (White Reference White1975, 34, 58; Savinitch Reference Savinitch and Grillo2005, 109, 118).Footnote ²²

To be sure, metaphors can be part of literary expression in all forms of legal discourse (Goodrich Reference Goodrich1987, 87, 180). For instance, Zhang Wenxian’s (Reference Zhang2021, 5) text on Xi Jinping Thought on the Rule of Law identifies practice as “the mother” (mu, 母) of theory. This metaphor symbolizes the foundational position of practice—and China’s national realities—in the formulation of Xi Jinping Thought on the Rule of Law. At the same time, this metaphor is not Aesopian. Zhang Wenxian’s text promotes and celebrates Xi Jinping Thought on the Rule of Law through figurative language instead of seeking to subvert it through Aesopian speech. The Party pays close attention to the uses of ideological language in public discourse, censoring subversive uses of language through a variety of institutionalized controls (Link Reference Link2013, 274, 317, 332). Scholarship on sensitive aspects of Chinese law and legal ideology invites heightened scrutiny from Chinese sensors (Hao and Guo Reference Hao, Guo, Zhidong and Zabielskis2020, 90–92). Consequently, Chinese legal scholars working within ideologically sensitive fields of law, such as jurisprudence and doctrinal constitutional law, face constant pressure to reproduce and advocate the ideological apparatus of the Chinese party-state (Hao and Guo Reference Hao, Guo, Zhidong and Zabielskis2020, 90–92). This makes it difficult to use Aesopian devises (such as irony) to criticize and subvert contemporary Party ideology in ideologically sensitive fields of law. Chinese legal scholars have tellingly observed that Chinese jurisprudence constitutes little more than “political lessons in law schools” (Zhu, Qu, and Zhai Reference Zhu, Qu, Zhai and Hua2022, 131).

Legal historical narratives can distance themselves more easily from political sensitivities than texts that explicitly refer to contemporary Party ideology. This distance provides legal scholars various opportunities for Aesopian figurative speech. Aesopian speech is apparent, for instance, in He Weifang’s (2012) text on Mencius, which spins various historical narratives into a highly suggestive, but ultimately ambiguous, account of the legitimacy of the Chinese party-state. Among other things, He Weifang describes Mencius’s “predicament about how to restrict monarchical power,” stating that “this problem … has remained almost unchanged in modern time” (43). According to He, the Chinese “simply do not have a means to restrict the power of the top leader” (43). He also introduces Mencius’s views on the Mandate of Heaven—the ruler’s divine right to govern—and states that, for two millennia, China did not develop a means for resolving challenges against a ruler (46–49). While He’s text does not directly challenge the CCP’s monopoly of power, its historical analogies appear to be intended as liberal-minded critique of Party ideology. This impression is strengthened by the humorous and irreverent tone of He Weifang’s text, which creates an emotional distance between the author and Party ideology.

In addition to suggestive metaphors, Chinese legal historiography makes use of an Aesopian device, which can be called “an open list.” An open list exhibits facts or thoughts leading to a certain conclusion, which is left open in the text (Savinitch Reference Savinitch and Grillo2005, 116–17). For example, Lin Laifan (Reference Lin2009) sets out a suggestive sequence of historical events and arguments in his above-mentioned history of Chinese constitutionalism. Lin first describes the gradual disassociation of Chinese “constitutionalism” with liberal democratic checks on government power and the subsequent association of “constitutionalism” with the Marxist-Leninist concept of people’s democracy (44–45). Lin explains these developments as the consequence of political mobilization efforts during the Chinese civil war. He then argues that the political needs in contemporary China have changed from the needs during the Chinese civil war (48). Today, it must be determined how constitutionalism can be used to restrict public power and to protect basic rights. Lin concludes his article by noting that that this is “a historical topic that China cannot avoid” (48). Lin’s article takes its audience to the brink of adopting a liberal democratic view of constitutionalism without, however, taking the last step into political dissidence.

As described in the previous section, Aesopian language has enabled Chinese legal historians to “draw lessons” from history, suggesting, for instance, a greater scope for political rights and Western-style constitutionalism in contemporary China and calling to question specific modes of Party leadership. It is unclear from these texts what exactly is being proposed and how closely analogous their authors see historical precedents and contemporary China. What kind of checks should be imposed on the Party’s uses of power (L. Lin Reference Lin2009; Zheng Reference Zheng2014)? Should the Party step out of universities altogether, or should its role there just be slightly adjusted (Bao and Xue Reference Bao2019, 202)? Is Party leadership justified on the basis of Chinese traditional notions of popular sovereignty, or does the Party risk losing its “Mandate of Heaven” (Xia Reference Xia2014, 83)? No clear answers to such questions are available. Aesopian language is ambiguous by design (Savinitch Reference Savinitch and Grillo2005, 114).

The effectiveness of Aesopian figurative speech in Chinese legal historiography is enforced by a rhetorical trope, which is common in Chinese historical texts: the use of historical parables to speak truth to power. Chinese court historians engaged with historiography not only, or even primarily, to record historical events but also in order to derive moral lessons from historical precedents (Dirlik Reference Dirlik1978, 7–8; Hartman Reference Hartman2019, 40). Historical parables criticizing the present were so common in pre-modern China that they formed a recognizable literary genre (Hartman Reference Hartman2019, 46). The themes of these parables still appear relevant: “[T]he sovereign should control the palace’s irregular exercise of imperial authority, delegate power only to carefully chosen civil officials, accept remonstrance, limit foreign entanglements, and generally exercise benevolent government” (45). A modern example of this praxis is provided by Professor Zhang Jinfan’s lectures to the Chinese leadership in the 1980s and 1990s, which are recalled in retrospectives on Chinese legal historiography (Zhongguo Zhengfa daxue falü shixue yanjiuyuan Reference Ming’an2008, 591; see also Xu Reference Xu2018).Footnote ²³ In a 1986 lecture to the CCP Central Secretariat, Zhang told Party leaders an anecdote about a virtuous judge in Tang dynasty. The Tang emperor had ordered all officials who had polished their resumes to be executed. A dishonest official was caught and tried. In the trial, a judge sentenced the official to be exiled rather than executed. The displeased emperor summoned the disobedient judge to be heard. The judge spoke: “The law is referred to as the publicized regulations of the state, and it is made to win the trust of people. What Your Majesty has said is out of your personal joy or anger; therefore, it is not right if people are killed because Your Majesty is angry” (J. Zhang 2015, 183). In the 1986 lecture, the Communist Party leaders were supposedly intrigued by Zhang’s anecdote, asking him whether the judge had been executed (Xu Reference Xu2018). “No,” said the legal historian, the emperor had not only spared the virtuous judge the death penalty but also made the judge his confidant (Xu Reference Xu2018). Zhang later summarized the lesson of this anecdote as follows: “[E]ven if the emperor had the power of killing and enforcing punishments at will, as long as the cases were brought into the judicial processes and were dealt with by the impartial and fair-minded judges, restraints could be imposed upon the imperial powers by the application of the law” (J. Zhang 2015, 184).

The anecdote is potentially figurative on various levels. First, the anecdote presents an analogy between the historical context of China’s absolutist rulers and the contemporary Chinese party-state. Second, the retelling of the anecdote casts Zhang Jinfan as a virtuous court historian in his own right. Third, the anecdote uses Zhang Jinfan as a stand-in for all Chinese legal historians, suggesting that Chinese legal historiography, in general, ought to make use of historical analogies to influence Chinese politics (Zhongguo Zhengfa daxue falü shixue yanjiuyuan Reference Ming’an2008, 591). Fourth, the anecdote suggests that CCP leaders should embrace critical-minded, but ultimately loyal, historians. Audiences of the anecdote will know that Zhang was an early advocate of the view that the People’s Republic of China should engage with human rights (Svensson Reference Svensson2002, 248–49). To be sure, figurative uses of historiography are not unique to China and other illiberal regimes. Legal historiography in liberal democratic countries commonly seeks to demonstrate the historical contingency of present legal and political arrangements through historical analogies (Gordon Reference Gordon1981, 1019; Barzun and Priel Reference Barzun and Priel2015, 854). Moreover, as pointed out above, Chinese historiography can be conducted without an obvious ideological take-home (although, as also mentioned above, all texts can be read against ideological narratives). There is also the argument that all historiography is ultimately figurative, regardless of its political context (White Reference White1975, 53; Kellner Reference Kellner1989, 285). From the perspective of rhetorical theory, neither the figurative use of language nor historiography are intrinsically critical. Historical metaphors can be, and often are, used as apologies for power (White Reference White1973, 25).

Nevertheless, it is also true that politically heterodox Chinese intellectuals rely more on Aesopian language than their colleagues in liberal democratic countries. The difference between the liberal democratic and Chinese settings becomes obvious when Chinese legal historians overstep their historiographic license.Footnote ²⁴ As pointed out above, one of the most prominent recent instances of ideological censorship in China concerns Xu Zhangrun’s (Reference Xu and Geremie2021) essays on modern Chinese history. Xu’s essays are historiographic—in fact, they are written in anachronistic traditional Chinese—but their arguments are poignantly ahistorical. While Xu (Reference Xu and Geremie2021) makes use of figurative language (for instance, using a pun to compare Xi Jinping to Mao Zedong), his essays do not present historical events as past incidents, which are only metaphorically relevant to present-day China. Instead of cloaking his critical views in suggestive figurative language, Xu spells out the contemporary relevance of historical concepts and events. For instance, he argues that the privileges of CCP cadres are not merely reminiscent of the emoluments permitted to the ruling Manchu families during the Qing dynasty but also that they actually “replicate” (chengji, 承继) them. Similarly, Xu contends that President Xi Jinping’s prominent role in Chinese media is not merely analogous to Mao’s personality cult but also a personality cult in its own right. Xu could have made use of the historiographic fig leaf and given the impression that he attempted to conceal his political messages. His transgression was to openly defy such acts of modesty.

Finally, besides its various ideological uses, historiography seems to appeal to Chinese legal scholars because it provides a means to rise above partisan politics (Lin Reference Lin1999, 160; Y. Guo Reference Guo2018, 123). Figurative speech not only helps legal historians conceal their true political intentions, but it also enables legal scholars to subtly question ideological doctrines—which they may support in other social contexts—without having to negate these doctrines explicitly. Importantly, ideological questioning need not be informed by a self-consciously held reformist agenda. For instance, it seems unlikely that Zheng Chengliang’s (2014, 70) above-described commentary on the outdated nature of China’s one-party dictatorship was motivated by radical politics. Zheng is an establishment figure, who served as the dean of the Shanghai Jiao Tong University Law School and as Jiao Tong University’s deputy Party secretary.Footnote ²⁵ In his doctrinal scholarship, Zheng Chengliang (Reference Zheng2009, Reference Zhang2015) has consistently sought to strengthen Party leadership under the principle of constitutionalism. Instead of advocating a radical reform agenda, Zheng may have been genuinely puzzled about whether and how CCP governance could be made non-dictatorial. As a consequence, Zheng (Reference Zheng2014, 70) concluded his conceptual history with the observation that creating a new, practically workable constitutional order would “require hard work from the entire Party and society”.

In conclusion, the historiographic genre of Chinese legal scholarship appears to offer Chinese legal scholars (and even some CCP ideologues) a license to establish distance to their own ideological beliefs. This conclusion conforms to earlier studies on Chinese historiography. As Joseph Levenson (Reference Levenson1965, 85–86) and Arif Dirlik (Reference Dirlik1978, 17) observed in their seminal works on modern Chinese history, Marxist historiography provided Chinese intellectuals the means to abandon the basic concepts and values of their traditional culture. The same can now be said of Marxism, whose theoretical premises have been ignored in the diachronic parts of much recent Chinese legal historiography (if not in theoretical statements about history). The CCP Central Committee’s (2021) resent resolution on Party history, therefore, can be seen as an effort to stop and reverse this trend. Nevertheless, it is notable that Marxism can be turned into (mere) history even without a clear alternative ideological agenda. Historiography thus supports Chinese legal scholars’ efforts to rise above received ideological doctrines without compelling them to profess, or even articulate, alternative ideologies. The project to transcend existing ideological paradigms may also explain why legal historiography has not become a major point of ideological contestation in contemporary China.Footnote ²⁶