[Marxism] A Coming Crisis in China?

Brian Shannon 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  
their accuracy.

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  
regarding funding.)

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  
Breshnev-like fashion.

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- 
over effect.

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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