Symposium 2004

Symposium 2004:

Culture, Law and Order–Chinese and Western Traditions

Symposium

Main Themes

  • What is the relationship between Culture and Law in Western History?
  • In the development of Chinese History?
  • The «Rule of Law» being a concept of western origin, can such a legal concept be implemented into the Chinese society with its proper cultural heritage?
  • Can the rule of law in China be the same as in the West?

Date:

  • 24 to 26 November, 2004

Location:

  • Inspiration Building, Institute For Tourism Studies

Languages:

  • English

Introduction

The history of Chinese law is illustrated by three famous codes: the Tang Lü, the Ming Law Codes and the Qing Law Codes. Despite the fact that, for centuries, the country had been broken up into separate kingdoms, or also governed by non-Chinese, in its basic elements the legal system of China remained stable.

However, these three famous law codes dealt with criminal law only. Apparently, there was no civil law. The domestic order of the family clan, though, was protected to an excessive degree by the legal order, and infringements of family or private property were severely punished.

The stability of the legal system ensured the stability of the society and guaranteed that people knew their rights and their duties. This stability, however, involved rigidity and incapacity for adaptation to the radical changes brought forth by a radically changing world. In Europe, the barbarians who broke up the Roman Empire brought in a new and less civilized legal outlook, moderated only to some extent by humanitarian Christian principles.

In the modern era in China, after the upheavals of the Chinese revolution and at the beginning of Deng's modernization period, the reintroduction of law has been the national mood and was seen as a means to assure the success of modernization. But this has not developed without difficulties.

Most recently, for China to enter the WTO implies that China in many ways had more interaction with the international community.It seems, therefore, that the Chinese legal system has been moving towards more compliance with international standards.

Organising Institutions

  • MACAU RICCI INSTITUTE
 

Arnaldo Gonçalves

The Nuptials between Justice and Law in the Philosophy of John Rawls: its Impact in Contemporary Political Philosophy

The idea of Justice plays a vital role in the philosophy of the American philosopher John Rawls, and in his “Theory of Justice” he refers it as equity. John Rawls’ influence in modern Western philosophy is paramount. In the framework of its theory, the primacy of justice implies that there will be certain constraints on the concepts of life open to adherence in a liberal society; and that it is crucial for the establishment of fair institutions in a way that will maintain and deepen an appropriate balance between the expectations of the individuals and the requests of a societal life.

These institutions must be enshrined in a Constitution that defines the role of the government, settles the appropriate checks and balances and preserves the rights of the individuals. This typifies what Rawls calls an overlapping consensus between the different conceptions of good that coexist in a free and pluralistic society. Rawls links the necessity of clear, precise and transparent set of legal rules with the obligation of the legislators to keep Justice as an obligatory goal. Rawls labels it as making Justice with regularity, in the sense that only by applying Justice in day-to-day life the leading virtues of a Justice society could be pursued. Rawls opposes, firmly, to the positivist tradition that gives primacy to the element of coercion. His vision has clear points of contact with the Confucian tradition of a fair, wise and balanced society. But Rawls stands apart from the Eastern conception of ethics, as passive conformity. He sees Man as a free and autonomous individual, entitled to his liberty and free to express his dissent in all legitimate ways. Rawls does not accept that principle of freedom could be jeopardized in the name of a General Will or for the sake of a temperate society. He sees conflict and dissent, then pluralism, as a core ingredient of an open society. That’s why this compromise between two quasi-absolute values is a never-ending process; like an espousal of two youngsters looking for the perfect moment of compromise.

米辰峰 Mi Chenfeng

Republic and Autocracy, A Genetic Differentiating of the Cultural Crypto-genes between the Ancient Rome and China

All the differences between China and the West in the modern time, the diversity of their legal systems in a special way, are derived from their on-going practices of the ancient constitutions. The dream of the New Republic advocated by Aristotle had basically reached its maturity in ancient Rome, characterised by pluralism in the government system and counterbalancing of power. The though tardy debut of the Roman legal system had given birth to democratic republics of the modern world. On the other hand, the premature Chinese ancient legal system had eventually turned into an impossible to forsake feudal imprisonment. The long-lived practice of autocracy and oriental despotism results in China’s breaking away from the mainstream civilization of the world. As there exist unknown bio-genes and genetic mechanism in the evolution process of the society, I believe studies on the map of the cultural gene-cell structure, the latency-recurring alternate time-rules of the crypto-gene and its genetics would benefit the future constitutional reforms in China.

徐静琳 Xu Jinglin

Chinese and Western Legal Cultures: Differences and Concordances, and the Reform of Chinese Administrative Legal Regime

There are relatively great differences between Chinese and Western legal cultures and traditions, including the value of law, the sources of law, the regime of law, the concept of jurisprudence, and the practice of "the rule of law". This article reviews the historical development of Chinese and Western legal cultures, analyzes the different legal cultural phenomena, straightens out features of the thread of thoughts of their ancient and present changes, and also, in connection with the reform practices of the Chinese administrative legal regime, explains and explores the differences and concordances between Chinese and Western legal systems.

The article is mainly composed of three parts:

1. The Value Bases of Chinese and Western Legal Cultures

2. The Differences and Concordances between Chinese and Western Legal Systems

3. The Reform of Chinese Administrative Legal Regime from the Theory of Efficiency to the Theory of Rights Control

Ignazio Castellucci

The "Rule of Law" and the "Role of Law" in the Chinese context

“The rule of law” is a western concept: a society regulated in principle by the law. This idea is based on the western concept of “Law”: in the west, “Law” means a set of general rules that apply automatically to all, and have judicial enforceability.

“Rule of law” means then that legal rules prevail over other providers of behavioral rules, and are or should be always enforceable by means of legal mechanisms provided from within by the legal system and judiciary apparatus.

It is demonstrable that the role of law in China is different in many instances: basically, it is not the role of a general set of rules applicable to all. Law in the Chinese context is, as commonly accepted, a tool for government and policy (“rule by law”); a special type of political directive. Consequently, even the enforcement of law in China follows patterns which are typical of political directives. It may include judicial enforcement, but in some cases judicial enforcement may be not applied; in other cases, additional political tools of enforcement can go along with judicial ones.

We could then consider recognizing that a Chinese concept of “rule of law” is the rule of something different from how westerners think the law to be. It is often referred to, in comparative law circles, as “socialist legality”, or “socialist rule of law” (we see a parallel here with the Chinese concept of “socialist market economy” formalized in the PRC’s Constitution). We may call it “the rule of politics”, or policy.

It is probably conceptually inappropriate or incomplete to easily label the Chinese environment as unruly, or plainly plagued by illegality, and be content with that.

It could instead be more fruitful for understanding China to consider it as an environment where the role of law is different; consequently, we can’t expect to see the usual western mechanics of the “rule of law” at work – at least, not solely, not prevailingly.

We may see China as a society which, in a political sense, decided not to follow the Western model of “law” and “rule of law”, as the Chinese specificity requires a different approach – which includes an increasing recourse to the law to solve conflicts, but which also requires other social institutions to work along, at least for the time being.

It is, all in all, a socio-political decision to create a given hierarchy or combination amongst the different ways to run a society (by law, by politics/policy, by traditional or customary or religious sets of rules). Even the Western idea that society is ruled by law only, just because the law says so, is a modern, western legal fiction provided by the legal system: the basic underlying decision to have the law at the top of society cannot be but a political one.

邹克渊 Zou Keyuan

The Interplay of the Chinese Communist Party with the Chinese Law: Crippling Efforts Towards the Rule of Law

The Chinese Communist Party (CCP) is not merely a party in the traditional sense. It controls the society and social life in every aspect through its organisational cells from the top to the grassroots. The influence of the Party in the society is immense and its role critical. Since law is used to govern the social life, it is inevitable to be influenced, or more precisely directed by the Party. No consideration of law in China would be complete without considering the relationship between the CCP and the legal system. Since the post-Mao era, there has been an open-ended debate on which is superior, the Party or the law (dang da haishi fa da) in the Chinese society. This paper attempts to expound and assess the relationship between the Party and the law by looking into several key areas where the CCP and the law interplay and / or are inter-entangled. The paper is divided into four parts:

The Party's influence over China's legislation and contitutional changes;

Rule of law vs. rule by virtue;

The Party and the judiciary;

Towards rule of law under the Party's shadow.

Matthew Erie

Legal Practice and Cultural Praxis: Cross-Cultural Comparisons of Western and Chinese Legal Traditions Through Minority Policies

Although the Anglo-American tradition of law and that of China differ in more ways than they are similar, it is vital to establish a common basis of comparison considering today’s global legal practices. The Western tradition has been most greatly influenced by social contract theory and natural law theory or “classical liberalism” whereas modern Chinese law is an amalgamation of indigenous legal and political philosophies as well as Japanese, Soviet, and European legal theory and practices. A crucial question with which both systems have grappled is the rule of minority populations as distinguished by ethnic, religious, racial, or cultural differences. The American and Chinese political systems have responded to what has variably been termed “self-determination” or the “nationality problem” by dissimilar policies informed by their respective political ideologies and cultural attitudes toward legal rights and civic duties as well as ideas of community and the role of the individual.

This paper will point to the increasing inter-cultural exchange between the West and China on the matter of minority rule without eschewing the paramount differences between Western and Chinese legal traditions. A common basis of the comparative approach is located in the conception of culture not as a lockbox of static traditions but as a means of self-producing and reproducing social identity. While inter-cultural exchange does not necessarily connote congruence, it allows us to highlight both the impact of Western liberalism in China, on the one hand, and an acknowledgment of the efficiency and shortcomings of Chinese socialism, on the other hand, in examining the status of law in majority / minority relations. Marxian theory as well as critical social theory will provide the overarching theoretical perspective of this paper while examples of indigenous claims to self-determination in the West and an investigation of the plight of China’s ethnic minorities (shaoshu minzu) will provide the empirical material necessary to juxtapose Western and Chinese legal traditions to demonstrate that both are evolving systems working in different trajectories toward the goal of human emancipation.

张海廷 Zhang Haiting

Chinese Culture and "the Rule of Law" in China

China has long been an agrarian country with large land. Its historical background and geographical condition makes its traditional culture irrelevant to “the rule of law.” Although there have been marvelous progresses in China’s legal development toward the rule of law, we still cannot say so far that China is a “rule of law” country. There still lack in China the complete supremacy of the Constitution and an independent court system which, together with some other aspects of its political and legal actuality, mark this country with “the rule of men.” The cultural origin stays behind the scene and is always determined. The continental character of China’s geography made its economy agrarian in nature which further contributes to an extraordinarily strong family system. The strong family system naturally leads to an ethic society which stresses ethics rather than law, obligation rather than right among people. Confucianism and Legalism in Chinese traditional culture can be the sources of “the rule by moral” and “the rule by law.” “The rule of law” concept in Western countries faces challenges and resists in the soil of the ancient oriental country. Trying to develop and cultivate the seeds and inherit genes of “the rule of law” has been regarded as the first obstacle to overcome and this for sure is a gradual and growing process which cannot be done overnight.

Jonas Grimheden

Inveterate China: Law and Symbolism

The Call for Papers of this symposium posits: “Can the 'rule of law', being a concept of western origin . . .” be implemented into the Chinese society. I would like to challenge this proposition on two apparent flanks: rule of law is not a western concept and rule of law is not new to the Chinese culture. Certainly, the expression 'the rule of law' or any other European language version of the same concept is European in origin. The concept as such however, with laws forming the basis for actions within the society, be it between state and individual or between individuals, and with procedures detailing breaches or claimed breaches of the law supplemented with schemes of maintaining independent, impartial and supervised adjudicative institutions are not an exclusive European invention. On the contrary, the same phenomena developed in many parts of the world, including China.

This paper will briefly elaborate on the existence of legal and procedural safeguards and institutions in the Chinese history before moving on the possibly larger question of stereotypical perspectives on law in China drawing on symbolism in law in both the West and China. By resorting to symbolic features I aim to indicate the roots of law and justice in East and West as a method of seeing contemporary China in some more objective way.

Glenn Timmermans

Sir George Thomas Staunton and the Translation of the Qing Legal Code

The Qing Legal Code has the unique distinction of being the first Chinese-language work to be translated directly into English, all previous English translations of Chinese works coming via Portuguese, Italian, French and Latin. Significantly, this translation was also its first rendering into a Western language. There are references to this code in earlier French texts and Western traders and diplomats were aware of its significance, but it was only in 1810 that Sir George Thomas Staunton, the founder of British Sinology, made this work available to a European readership, and a French translation of Staunton's work appeared in 1812.

This paper proposes that while Britain was the leading trading nation in China by the middle of the eighteenth century, it lagged behind other European countries in its engagement with China. However, it was precisely because of British trade interests that the legal basis for Chinese practice needed to be understood more thoroughly. The commonplace that Britain's legacy in Hong Kong is to be found in the idea of the rule of law might be traced to this particular intellectual approach to China. The British attempted to understand China through its legal system and even though the Qing Legal Code dealt only with criminal law, the British were able to draw on this as a basis also in its various trade disputes with China. These disputes, including the trade in opium, led ultimately to the Anglo-Chinese Wars but they are also examples of the beginnings of legal accountability, and the rule of law, in China's trade with Western nations.

Chen Jianfu

Civil Codification and Foreign Influence in China—Towards China's Own Civil Code?

Contemporary civil (and commercial) law in the PRC is mainly a product of the 20th century. In particular, its emergence, in the form of state positive law, was mainly a result of modern law reforms by way of borrowings, largely from European Continental laws. This paper traces the development of civil law in China, with a focus on foreign influences. It starts with a brief description of civil law in traditional China. It then examines foreign sources and influence in the making of the Civil Code of the Republic of China. The various attempts to enact a civil code since the mid-1950s are analyzed, with the purpose of seeking to unveil the underlying influences of foreign legal systems and legal theories as well as difficulties experienced by Chinese scholars and law-makers in this codification enterprise. It is argued that, ultimately, an effective civil code could only be realized if the actual needs of contemporary China are seriously considered and taken into account.

Isabel Morais

Images of Law in Chinese Crime Fiction

Crime fiction in China emerged in the 1890s in translations of Western works, and evolved from the mere imitation of Western crime fiction to becoming an autonomous literary genre.

Despite fluctuations in popularity, the genre of Chinese crime fiction, the plots of which are based on true cases, has retained a reasonably constant presence on the literary scene, and has captured the popular imagination in contemporary China and, more recently, across the world.

After the demise of Mao, under whose governance the genre was banned, the government of the early Deng regime began to favor so-called “legal system literature” (fazhi wenxue), and aimed to use it to propagate moral principles and maintain political control in opposition to writers who strived for independence and originality.

Since the mid and late 1980s, which were considered the heyday of Chinese crime fiction, and the expansion of the legal system and legal institutions, crime fiction has served to illuminate the role of law and to display new social perceptions.

To investigate these attitudes, I focus on works of contemporary Chinese crime fiction by arguing that they are expressions of a confluence of cultural exchange and new trends. Several factors may have contributed to such a change, from the impact of the cinema and television serials in China to the celebrity status of Chinese detectives, lawyers and judges both as crime solvers and writers in the Chinese mainland and amongst the Chinese writing diaspora.

An important finding is that besides giving detailed descriptions of legal procedures, all of the works studied have clearly shifted away from the traditional formula of Chinese crime fiction, that is, of the quest of a hero for justice, punishment, and revenge, to focus on the process of solving crime and the rendering of justice through legal processes. It seems that crime fiction is becoming crucial in conveying a new understanding of citizen’s rights in an attempt to fit into ongoing contemporary debates on universalistic notions of justice and the competence of legal institutions to provide justice to increasingly marginalized sectors of contemporary China.

Johanna Ransmeier

"Slavery as Practiced by the Chinese": Observations of Western Missionaries, 1849-1926

In a society famous for its respect for family, the persistence of human trafficking reveals some of the greatest paradoxes and contradictions in family and social structure. In case after case recorded in the Republican judicial archives, the stock defense is that dire circumstances left a family ‘no other choice’ but to sell themselves or their children. Yet though desperation, economic hardship, and physical misfortune were powerful forces, they were not the only impetus for enslavement. Kidnappers, traffickers, merchants and other social intermediaries also negotiated the sale of human commodities, and therefore constitute part of the story. Their actions often echoed acceptance and demand for their services. These sales were negotiated in the flexible space between accepted social practice and the penal statutes that comprised the Chinese system of law. In my paper for the Chinese Law and Culture conference, I introduce the questions guiding my current research in the context of on-going debates about the origins of Chinese notions of freedom – both at the level of revolutionary discourse and on the level of individual experience.

Some of the tensions present in these debates existed even amongst the late Qing reformers. Charged with the task of revising the Qing Code in 1906, Commissioner Shen Jiaben bemoaned the difficulty of prohibiting the sale of humans: “The statutes forbid the slave trade, but the sub-statutes again allow people to draw up contracts and buy slaves at a price.” Such discrepancies in the law indicate an uneasy tolerance of a socially entrenched practice. A market for human beings persisted in China before and after the legal abolition of slavery in 1910.

Qing reformers, missionary observers, and participants in the trafficking community provide a set of perspectives from which I hope to reconstruct the way in which Chinese families and local communities sustained a delicate balance between rights and survival under changing legal regimes.

Anne Carver

Shifts in the culture of a Constitution—Closing the Gap and Re-drawing the Map

Law and Order are culturally constructed concepts. They change as cultures change in response to fundamental shifts in the socio-economic and political circumstances of a society. This is true for China as well as for the West. In the West, the natural and social order was believed to have been created by a transcendent God and had both a beginning and an end. "The laws of God do not depend on the nature of things, but the laws about the nature of things flow from the laws of God."

The laws of nature were viewed as given by God and in medieval Europe; law was seen as God's (universal) Natural law. Reason and natural law in the medieval world were the essential steps towards the realization of the Christian moral vision. In the traditional Confucian paradigm there is no beginning or end or natural law given by God and law is not subject to the transcendental dictates of divine order. The question of "inalienable rights" is therefore one of the key cultural differences between the two legal traditions, based on the Western experience of the furthering of the political order and the social contract.

This paper examines how the gap between the Western legal tradition and the Chinese legal tradition is closing as amendments to the Chinese Constitution begin to bridge the gap on the role of law, and the rule of law. The paper examines how Dr Sun Yan Sen's Three Principles in 1911 expressed the vocabulary of equivalence with the West but emphasized the importance of the role of tradition and pride in China's heritage. The 2004 amendments to the Chinese Constitution have completed the circle in the search for a vocabulary of equivalence with the Three Represents and respect for human rights. The paper identifies three shifts in the ideology of the 1982 Constitution that represent "the culture of Constitution", and close the gap. Meanwhile in the West debates about law and order have re-drawn the map of human rights and the mythology of the western natural law tradition. This paper suggests that the cultural impact of terrorism, together with the shifts in the culture of the Constitution, may finally close the gap in long-held cultural differences between these two great legal traditions.

王江雨 Wang Jiangyu

The Rule of Law in China: A Realistic View of the Jurisprudence, the Impact of the WTO, and the Prospects for Future Development

China’s economic reform is now at a critical juncture as the reform on Chinese enterprises, especially the state-owned enterprises (SOEs), has become the most arduous task for establishing a socialist market economy. Enterprise reform involves mainly the restructuring of the national economy, the establishment of good corporate governance, and the construction of supporting regulatory and social institutions. One of the key aspects for achieving success in enterprise reform is the construction of the rule of law or at least a thin version of the rule of law, which includes, among others, a clear concept of property rights, equal and uniform application of rules, limited government, accountability, transparency, fairness, and judicial independence. Further, China’s enterprise reform under the rule of law, which is a main component in establishing the property rights regime in China, should follow a plan that suits its national conditions in order to avoid the risk of adopting basic Western norms without many of the fundamentals of the Western system. For this purpose, although the growth of private sector should be encouraged and private property rights should be vigorously protected, privatization of SOEs is an approach rather than a goal. The goal, however, is to establish sound corporate governance regime which can bring effective internal and external monitoring mechanisms for all the companies.

Zhang Qin

Some Characteristics of the Judicial System in Fengtian Province (1907-1928)

Mainly based on the judicial archives preserved in Liaoning Province Archives, Yingkou Archives and Shenyang Archives in Liaoning province, by examining the résumés of judges, judicial statistics, case files and comparing the court decisions with the reports of the custom investigations conducted by the Qing regime, Beiyang government and Japanese South Manchuria Railway Company, in this paper the author observes that, on one hand, in terms of procedural reform and court management, the judicial system in Liaoning from 1901 to 1928 experienced a radical change—by 1928, almost all the judges in 16 district courts and their branches, 16 district judicial offices and 26 offices of district magistrate exercising concurrent judicial functions received formal legal education, and the procedure for litigation was deliberately prescribed and implemented. The author argues that from the perspective of procedure law and court management, legal formalism and professionalism characterized the judicial system; however on the other hand, from the perspective of substantial law, traditional legal approach dominated the court practice, namely, in civil justice, without a civil code, reason and custom were the only guides for legal practitioners. Similar to its predecessors in pre-reform times, the courts continued to support the dian practice, and divorce was still an impossible battle for women. The author concludes that the dilemma between the legal formalism and professionalism in procedure law as well as court management and the traditional approach exercised by the judges in the field of civil justice were the main characteristic of the judicial system in Liaoning province in the first quarter of the twentieth century.

Karin Buhmann

Chinese Law Past and Present—Potential of a legacy? Norms and Law on the Exercise of Power by the Executive

At first glance, the reforms that the PRC has undertaken since 1978 of administrative law and connected institutions do not seem to have many links to the pre-modern Chinese legal system or institutions, or the normative culture that these built on (the Confucianised legal system / Confucian-Legalist cultural tradition). At second glance, however, a comparison of elements of the late 20th century reforms of administrative law, and of administrative law and governance of pre-modern China, suggests a number of common features. In the paper, some of these features of the pre-modern legal and normative cultures and their possible role in the current processes of reforms of administrative law in China are explored through a discussion on the relationship between normative culture and law in the development of Chinese (legal) history, and the possible potential that parts of the Chinese history of administrative law hold for the implementation of the rule of law in contemporary China. In an assessment of convergencies between value systems and law in China and in Europe (as a part of the West), elements of administrative law in China that are directed towards the protection of rights and interests of legal and natural persons and access to remedies, are compared with views on ‘justice in administration’ formulated by the Council of Europe. In the final part, some suggestions are made on comparable and divergent elements in the rule of law in China and Europe, and on China’s course towards compliance with international standards on the purpose and use of administrative law.

梁洁芬 Beatrice Leung Kit-Fun

Religion in Post Mao China: Legalism and Religious Management

China has gone through a legal reform since the launching of economic reform in 1978 which aimed at preserving the fruit of modernization. However China has gone through many obstacles and difficulties in this important legal reform and was able to overcome many. The biggest obstacle nevertheless lies in the contradiction in the fact that the Party policy dictates that law must serve the Party/state, but at the same time that it declares that China must be governed by law and aims to attain the rule of law. These two conflicting principles have co-exited uncomfortably since the introduction of the legal reform. In this socio-political environment, China has been trying very hard to set up national and provincial laws to manage religious affairs when Jiang Zemin declared that religious affairs would be managed by “accommodation” and “Legalism”. It is a great step of progress in managing religious affairs when the government tried to employ laws to replace Party policies, regulations and decrees which are not law binding in western legal tradition.

Two sets of national laws / regulations which meant to monitor religions with a more sophisticated approach would be discussed in detail. These are Document 144 (1994) Guowuyuan guanyu zhongjiao huodong changsuo guanli tiaoli [Regulations from the State Council on Managing Religious Activities], and Document145 (1994) Guowuyuen guanyu zhonghua renmin gongwuguo jinnei weiguoren zhongjiao huodong guanli kuiding [On the State Council’s Management of Foreigners Staying in the People’s Republic of China]. In implementing these two set of laws we try to illustrate how the policy of managing religions by law was implemented and what progress it has made and what kind of difficulties it has faced.

Jean-Pierre Cabestan

China's Constitutionalism and its Recent Developments in China and Taiwan

Since the early 20th century, China’s constitutionalism has been closely linked to this country’s legal and political modernisation. A constitutional government (xianzheng) was perceived by Sun Yat-sen and the Republic of China’s rulers as the final stage of their revolution and a key prerequisite for the establishment of a rule of law. However, many Chinese reformers and revolutionaries have used constitutionalism and constitution building to strengthen the state rather than protect the citizens against a predatory government, jeopardising the instauration of a rule of law. After its foundation in 1949, the People’s Republic of China promulgated in 1954 a soviet-type constitution aimed at dressing-up and legitimising the Chinese communist party dictatorship. And as soon as he took refuge to Taiwan, Chiang Kai-shek imposed a martial law that suspended for nearly forty years the political liberties enshrined in the ROC 1947 constitution.

Since the 1980s, both in Taiwan and, to a lesser extent, in mainland China the reverse trend is perceptible: constitutionalism has been promoted as a crucial tool of legal modernisation and political democratisation. In Taiwan, the transition to democracy has been worked out through a series of constitutional amendments that have in the 1990s peacefully and smoothly transformed the old ROC institutions in order to adapt them to the island environment. This transformation has also dramatically contributed to strengthening of the rule of law in Taiwan. And today constitutional reform continues to dominate the Taiwanese political debate. In the People’s Republic of China, the 1982 constitution has been regularly revised in order to take account of the reform process and better guarantee the new economic and legal rights of the society. And the constitution has become, if not always a supreme norm, at least a more frequent legal reference for the government, the courts, the elites as well as the ordinary citizens. Nevertheless, it remains to be seen whether the future amendments of the constitution will be able to initiate a genuine political reform.

仇国平 Bill Chou Kwok-ping

WTO Implementation and Rule of Law: Government Procurement in China

Accession to the World Trade Organization (WTO) has substantial implications on China’s development of rule of law. First, China’s promise to revise its relevant domestic laws, administrative regulations, and departmental rules (at both central and local level) contradictory with each other and inconsistent with the Accession Protocol addressed to the widespread legislative inconsistency across the country. Second, China’s obligation that both the central and local governments observed the revised laws and rules was a challenge to the central authorities which had great difficulty in enforcing its policies during the reform era. Third, China’s commitment to establish a redress system in the policy areas of dumping, government procurement, export subsidies, and intelligence property right has an implication of limiting the administrative power of government agencies which were frequently reported to intervene too much into the economy and create clientelist and corporatist relationship with certain enterprises. The commitment raised the question on the scope and effectiveness of administrative laws in reining the bureaucracy. The effectiveness of administrative laws, in turn, is largely contingent on efforts of stepping up the independence of judiciary which has long been regarded as powerless in challenging the Party-led administration.

This paper reviews how far the accession to the WTO may strengthen the rule of law in China. Illustrations will be heavily drawn from the issues of reforming government procurement. The importance of government procurement rests in its contribution to achieving national objectives: value for money, maintenance of integrity and promotion of social and environmental goals – all being important aspects of good governance. This paper argues that the chance of strengthening the rule of law due to the membership of the WTO is bleak: there is no effective mechanism to review the legislative consistency. Local governments have little incentives to follow the commitments which may go against their economic and commercial interests. The institutional weaknesses of the judiciary have not been mended to make the courts powerful vehicles to strike down lower-level legislation inconsistent with higher-level legislation and to limit administrative authority.

Cathryn Clayton

Valuing the Past in the Museum of Macau

Contemporary China has witnessed an explosion of new and sometimes contradictory ways of commemorating and objectifying the recent past: from state-sponsored regional history museums to personal memoirs, internet websites and independent films. One thing that many of these forms of memory share is a nostalgic view of events that until recently had been considered too painful, personal, or controversial to be remembered publicly—a trend that elsewhere has been decried by historians who view nostalgia as an inauthentic and uncritical way of disengaging the power of history. But does nostalgia necessarily falsify and trivialize the past? This paper explores the nostalgic turn in contemporary China through an examination of nostalgic narratives in the Museum of Macau, where Macau's history of Portuguese governance is represented not as a source of China's humiliation but as a sign of China's cosmopolitan openness. Examining how and why museum planners, administrators and visitors valued different aspects of Macau's past, and the different kinds of nostalgia arising from these diverse views, I argue that the forms of representation within the museum provide space for the intersection of public history and individual memories in ways that allow the past to become a powerful, multivalent resource for imagining a range of possible futures.