Starr Chapter 12 The Rule of Law

Rule of Law vs Rule by Law (Rule of Men) Law stands above all All equal in the eyes of the law Neutral abiter Enshrined as above men/women

Rule by Law (men) Individual officeholder stands above the law Office holder is the arbiter to settle disputes

US Legal System Protect the individual and their rights & freedom

Chinese Culture Primacy of the family and society Individual obligations & duties

Confucianism Humans fundamentally good Good behavior elicited by example of ruler Subordinate obliged to obey Superior to provide a moral example Inferiors have an obligation to remonstrate but not a right Performance of the ruler not the written law is the key

Mao Overthrows traditional Confucian system But maintains the hierarchical system for himself & the Party Has a “lawless” state regarding civil law Criminal law had three parts Police Prosecutors Judges Rules by ideology – correct thinking linked to his “instructions” Marxism-Leninism thinking – “law” tool of the old oppressing class against the masses (another class)

Lingering reflection of Maoist era Crime to be “counter revolutionary” (now “endangering state security”) Who decides what this is Thought reform through coercive indoctrination/presuation and hard labor Back to the village (at best) Gulag of sorts (at worst) Presumption of guilt Defendant needs to prove innocence

Opening to Global Economy Need for legal system to assure foreign investors Regulate transactions Protect investment Unfortunate practive of “slaughtering the chickens to scare the monkeys” & role of foreign joint ventures Environmental regulations Labor regulations

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Question on quality of new laws No constitutional courts – only political/CCP bodies Improvement in training judges, but still subservient to state Lawyers kept on a short leash

Elephant in the room – Human Rights Stop an let class list how these are met or not met in US and China especially since 1950 Economic Social Political Civil

Economic First right is to a job & full stomach No more famines in China Guaranteed job until the opening to Global Economy In past housing was also provided

Social Free education Subsidized health care – but recent strains In past guaranteed pension, no longer so but system slowly coming into play

Political More but still limited Some contested positions

Civil Freer but only if not seen as threat to the state Example – registered with State religions “counter revolutionary” ideas seen as threat to State/CPP

Take away Different cultures lead to different legal systesm Human Rights are interpreted differently under the “rule of law” and the “rule by law” (rule of man) Confucian hierarchical relationships, duties and obligations are still central to Chinese governance