Ronald C. Keith

Judicial Interpretation of China's Supreme People's Court as “Secondary Law” with Special Reference to Criminal Law:

The analysis of the profile and role of Chinas Supreme Peoples Court needs updating. The Court is actively developing new interpretative formats that concern its relations with sister organizations and the National Peoples Congress. This article contextualizes these formats within Chinas changing institutional dynamics. China does not have a separation of powers; however, the Chinese system of justice does have its own separation of functions. The Court is playing a pivotal role from within the changing separation of functions, but the extent and quality of its independence from other organizations are open to question. In the context of deepening legal reform, the law is still incomplete and imperfect, and Court interpretation has often served as “secondary law.” In short, pragmatic judicial interpretations have sometimes preceded legislation by Congress. Remedy such as secondary law might be justified as absolute administrative necessity given the outstanding structural problems that characterize Chinas criminal justice system, but it has attracted internal criticism that argues for narrowing the function of the Court to a more tightly disciplined judicial role as well as for plugging the holes in legal process and structure by creating guiding case law and supporting the “freedom of judges decision making.”

A new prospect for transparent court judgment in China

This article focuses on the understudied area of Internet-facilitated judicial transparency and its implications for the right to know, the citizen’s engagement with China’s court system, and the related development of competent legal reasoning. The analytical focus is on recent China Supreme People’s Court regulations bolstering open reporting on court websites. This article explores the scope and quality of this reform, comparing it with earlier ‘open trial’ initiatives and investigating its origins and its contemporary implications, both in terms of generating public confidence in fair trial and furthering the development of legal education inside and outside of the legal system. The Internet may help to circulate an improved legal reasoning within the judiciary as well as support a more informed public understanding of the law’s requirements. Openness may pressure judges into a wider process of research and learning as they are more exposed to public scrutiny. At the same time it may well expose the extant level of legal incompetence in China’s new legal system.

SARS in Chinese Politics and Law

This article surveys the Chinese response to SARS in law and politics. Over the course of the spread of SARS the party-state qualified legal reform strategy that was designed to provide new human rights protection and to curtail the states arbitrary resort to policy and regulation without the benefit of law. This immediate response revealed the underlying problems of rule-of-law making, but the experience of SARS later informed the creation of new and improved law on infectious disease that reiterated the original assumptions of legal reform within a newly developing approach to the public management of health crises.

The Changing Substantive Principles of Chinese Criminal Law

The revised 1997 Criminal Law of the People’s Republic of China (1997 CL) deliberately reflects the circumstances of the contemporary era of reform and transition from a planned to a market economy, and it is herein compared with the 1979 Criminal Law (1979 CL).’Our analysis focuses at the formal level on the identification and interpretation of the extent and nature of the substantive change to the underlying principles governing the content, application and purposes of criminal law. Given the recent nature of the formal changes, the issue of the practical application of the revised criminal law in the courts will inevitably have to await the empirical test of time.

‘Peaceful Coexistence’ v. Containment at Geneva and Bandung

The international position of the PRC was greatly enhanced as a result of CPV involvement in the Korea War. Chinese diplomacy became the focus of international attention at the Geneva Conference of 1954. Zhou relied on diplomacy in meeting the threat of US-sponsored alliances. He gained tremendous personal stature in Asia as a result of his Geneva performance, and in the spring of 1955 world attention once again focused on Zhou’s masterful diplomacy at Bandung, where he stymied Cold War containment by successfully identifying China with national independence in Asia.

‘Peaceful Coexistence’ and the Sino-Soviet Split

One of the most important issues leading up to the public clash between the Soviet Union and China related to conflicting interpretations of ‘peaceful coexistence’. Zhou Enlai’s diplomacy of the ‘five principles of peaceful coexistence’ was predicated in the Geneva-Bandung strategy to avert US penetration of Asian politics and to establish a stable regional environment conducive to Chinese economic development.

The Asia-Pacific Area and the 'New International Political Order': The View from Beijing

Many of what the Chinese like to refer to as global and regional ’hotspots’, redian, have become less and less ’hot’ and so much qualitative change has taken place in world politics over the last few years that perhaps the time has come to review long-standing strategic conceptions of the Asia-Pacific area in relation to the changing pattern of economic competition within the world order and the durability and continuing viability of post-war East-West alignments. As suggested in the following survey of Chinese official statements and academic research of the midto late 1980s, important new elements are emerging from within the changing ideological format of foreign policy. The review of basic structural change in international relations of the AsiaPacific area is already under way in Beijing, and it is likely to become increasingly important, particularly in light of recent Sino-Soviet normalisation. The SinoSoviet Joint Communique of 18 May 1989 stressed the predication of normalisation on the five principles of peaceful coexistence. Regardless of Soviet sensitivities concerning the late 1970s, early 1980s Chinese usage of ’hegemonism’, both sides agreed that ..-. neither would seek hegemony of any form in the Asia-Pacific region ....’ -The two sides also focused on the recent Chinese

China's Modernization and the Policy of 'Self-Reliance'

western political analysis has anticipated a reduction in the radical politics of Maoist socialist justice in favour of what is seen to be a more rational advocacy of the ’four modernizations’. This reduction has often been interpreted to include ’the shift away from selF reliance’.1 The persistent advocacy of ’self-reliance’ since Mao’s death in 1976 may, however, challenge western historiographical assumptions as to the continuity of meaning and the practical policy implications of the term ’self-reliance’. A precise understanding of the dimensions of ’selfreliance’ as formal policy would seem to be crucial to any larger analytical treatment oi the role which foreign investment and technology might play in the context of China’s modernization. Particularly with respect to the Great Leap Forward and the Cultural Revolution, ’self-reliance’ has in western historiography been described in terms of an autarchy irrationally opposed to an international division of labour based on the classical theory of the law of comparative advantage in trade. ln so far as the Chinese are concerned such an interpretation is controversial. This concept orginated from within a revolutionary matrix of thought which integrated a burning rationalist concern for China’s survival with an aspiration to socialism in a world of competitive ’imperialism’, However, according to the Chinese argument on the level of formal policy, this concept has never agreed with xenophobic autarchy. On the contrary, past and present expositions of ’self-reliance’ are said to be quite consistent with a commitment to the expansion of China’s international trading relations. Under the historiography of the current Chinese leadership, China’s Cold War condition of semi-isolation in the 1950s

Pluralized Jurisprudence in the Socialist Market

This book delves into the correlations and the contradictions between law and justice in China’s transitional market economy. Essentially it tells the story of a newly emerging jurisprudence, falixue. It puts the sharp contradictions and sophisticated nuances of this jurisprudence in the immediate context of politics. Every chapter in the story begins with a deliberate explanation of the internal Chinese perspective on the controversies confronting the legal community. The many points of controversy surrounding the purposes and values of Chinese law can be plotted along a single continuum with reference to two intersecting formal concepts – ‘the market economy is a rule of law economy,’ shichang jingji shi fazhi jingji, and ‘running the country according to law and establishing a socialist rule-of-law country’, yifa zhi guo, jianshe shehuizhuyi fazhi guojia.

Balancing Society and the Individual in Judicial Justice

The importance of reviewing Chinese criminal law and supporting legal discourse, so as to identify and confirm the meanings which the Chinese attach to their newly emerging legal concepts, is obvious.1 Professor Jonathan Hecht is one commentator who has noted the importance of monitoring and evaluating the Chinese criminal law system so as to create ‘a base of knowledge about Chinese law and practice from which to promote China’s compliance with international norms’.2 Western evaluation has often critiqued Chinese ‘state instrumentalism’ and ‘legal positivism’.3 The current transition in Chinese politics has generated controversy over two related questions. How best to describe the essential nature of the contemporary Chinese state: as, for example, ‘mature totalitarianism’, ‘consultative authoritarianism’ or ‘fragmented authoritarianism’? And is the contemporary trend more towards civil society or state corporatism? This chapter’s analysis asks a third, but obviously related, question. How does change to the underlying principles of the criminal law system factor into contemporary regime change, as the jurisprudential axis of the criminal law shifts from class struggle to market reform?