China lays down the law as legal system modernized
Peking — Since expelling the ''gang of four'' in 1976, China's leaders have emphasized the rule of law to a degree previously unknown in this ancient land. The most striking example of this new departure has been the first criminal code of the People's Republic, which went into effect on Jan. 1, 1980. Also, law schools have either been reestablished or newly opened, and there are now some 8 ,000 full-time law students in China. A state-run bar has been established.
Even visitors to China's cities these days encounter vivid symbols of the emphasis China is giving its new criminal laws. Public wall posters summarize the offenses of criminals and describe the punishments meted out. Sometimes a photograph of the culprit is included.
Prior to 1980, there were only a few statutes enacted in the early years of the People's Republic aimed at ''counterrevolutionary activities'' and corruption.
At that time, the enforcement of criminal laws was chiefly in the hands of the police, dominated by the Communist Party. During the mid-1950s, there were experiments with a formal criminal justice system patterned after the Soviet Union, including a bar whose lawyers were state-employed.
But systematic law and the formal legal system itself became casualties of the anti-rightist campaign in 1957. The legal system, including the police, virtually disappeared during the Cultural Revolution (1966-76).
The problems of building a legal system in post--revolutionary China, therefore, have been immense. Traditional China lacked any concept of law as an activity differentiated from other types of official conduct.
Until recently law has not been seen by the Chinese Communist Party as a useful tool either for defining conduct or actions of the state or for implementing state policies. The actions of government and the masses have been guided by changing policies, and political campaigns were the preferred tools for implementing those policies.
Such campaigns are now formally eschewed.
But the old style of rule dies hard. For example, vigorous campaigns have been waged during the past two years against violent crimes and economic corruption. National and local leaders have been quoted frequently on the need to punish offenders severely, and news media coverage of trials and executions has been extensive. Not surprisingly, the courts have reported good results in response to the call to maintain good social order.
The linkage of courts to government campaigns continues to bind law to policy. In such an atmosphere, although the Chinese Constitution declares the courts to be independent, they can have little autonomy.
Even so, Chinese legal doctrine now affirms a commitment to judicial independence in the Western tradition. Some attention is given to protecting the rights of persons accused of crimes, but observers should not expect to see institutions with Western outlines used in familiar ways.
The trial, in which prosecutors and defense lawyers participate before a panel of three (one judge and two citizen jurors) who sit in judgment, is not designed to discover truth. Rather it expected to confirm that police and the prosecuting investigators have already found the truth during their pretrial investigation.
The role of the lawyer is still confined to urging the court to treat a client leniently. Safeguards against police arbitrariness and coerced confessions lie more in bureaucratic supervision of the police than in checks imposed by judges, prosecutors, or lawyers.
The future of China's legal system turns on how closely its leaders continue to link law with policy. And also on whether China's bureaucrats and judges can adopt habits of mind consistent with the declared values of today's legal system rather than those of the revolutionary period. In the meantime, the wall posters publicly announcing punishments define law as a form of discipline.