[Marxism] A Coming Crisis in China?
Brian_Shannon at verizon.net
Tue Apr 11 20:09:07 MDT 2006
Although titled “China’s Legal System,” this relatively dry subject
is enriched by some comments on the state structure and the
prediction of a Brezhnev crisis in the future. Cohen has been
studying China and the Chinese legal system for over 40 years and is
probably the foremost scholar in the area in the U.S. Certainly no
sympathizer to socialism, he is, however, an exceptionally astute
observer of Chinese affairs, and his criticism of China has not
caused the Chinese government to exclude him from regular visits and
presentations at Chinese universities.
Notes from Professor Jerome A. Cohen’s Lecture: “China’s Legal System”
New York City Bar Association Lunch
April 5, 2006
These notes were taken by James M. Rhodes at the above-referenced
event. Professor Cohen has not had a chance to review or comment on
Today I attended the lunch session at the New York City Bar
Association where Prof. Jerome A. Cohen spoke of “China’s Legal System.”
Prof. Cohen reviewed three waves of change since 1979:
Interest in attracting foreign investment commencing in 1979,
reflected in legislation, regulations, and other initiatives.
Following the unfortunate Tiananmen Square tragedy on June 4, 1989,
which caused Western investment to come to a halt, the second wave
began in 1992 with Ding’s announced interest in capital
markets.Toward the end of the 1990’s, another wave of activity was
occasioned by China’s anticipated entrance into the WTO.
Cohen articulated the view that, while they do have a legal system,
in truth they have a long way to go.
The courts are essentially incompetent. Many judges are either ex-
military or ex-intelligence. Individual judges have little
independence. The judiciary is more like a vast bureaucracy. Judges
are subject to many local and political forces which impair their
independence. The judicial system is still subject to the power of
the China social network system.
Although the government is encouraging the people to believe in the
rule of law, they are often disappointed with the results.
Cohen referred to arbitration and CIETAC, and said he was
increasingly disillusioned with the process. (In answer to a question
by the writer, he confirmed that three top officials of CIETAC had
been arrested two weeks ago; as of today, two have been released, but
the third, the former top official at CIETAC, remains in custody. It
is believed that this situation stems from a developing scandal
In general, when it comes to law reform, the government seems
“stuck.” There are some obvious things that could be done, such as
changing the practice of local appointment and compensation of
judges, and moving to a national system. Cohen questioned how far
commercial development can go without thorough-going legal reform.
He referred to a book by Minxin Pei, China’s Trapped Transition: The
Limits of Developmental Autocracy, which gives a very different
picture of the future for China that what we are currently getting in
the press. He thinks what is happening is a kind of slowing down in a
Regarding legal reform, Cohen pointed to two regional examples of
what can be accomplished: in Taiwan in the mid-90’s, the leadership
took steps to develop a functioning democracy with a reform of the
legal system. Korea had a similar development starting in 1986-87.
Although they are much smaller, they provide an example of what could
be accomplished with legal reform in China.
Interestingly, the Communist Party is gradually being forced to think
about such issues as due process and fairness, in dealing with
members to be sanctioned. Perhaps this will have a beneficial spill-
Another development related to the number of Chinese lawyers who have
been educated in American law schools, and return to China with
creative ways to get around the system.
One reason for the slowness in legal reform has to do with the fact
that China really has a weak central government; it is strong only in
a few areas, but subject to countervailing local forces in other areas.
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