The closer you look..
When he launched his anti-corruption drive in 2012, newly elected President Xi did so in language that would have pleased Confucius. He promised to govern by setting a virtuous example, hide zhiguo, in creating a socialist spiritual civilization, jingshen wenming. Later, he reminded legal scholars of the hierarchy between law and ethics:
Law is virtue expressed in words, and virtue is law borne in people’s hearts. In the State’s eyes, law and virtue have equal status in regulating social behavior, adjusting social relations, and maintaining social order. The rule of law must embody moral ideals that provide reliable institutional support for virtue. Laws and regulations should promote virtuous behavior while socialist core values–prosperity, democracy, civility, harmony, freedom, equality, justice, the rule of law, patriotism, dedication, integrity, and friendliness–should be woven into legislation, law enforcement, and the judicial process. 12-10-2016.
Despite its vast population, China imprisons the same number of criminals each year as the United States but releases them sooner and rarely sees them return. Thanks to smart legislation, unarmed but empowered cops, watchful grannies and a budget one-fourth America’s, Chinese streets are safe and society is trustful.
That’s because everyone knows that crime begins in the family and, since China calls itself the ‘national family,’ preventing it is everyone’s responsibility.
That’s why family members address older strangers as ‘aunty,’ ‘uncle,’ ‘grandfather,’ and ‘grandmother,’ why every adult assumes responsibility for every child, and why clans and family law settles ninety percent of disputes. Would-be criminals must struggle against family, friends, workmates, classmates, and neighbors who counsel, mediate, scheme and compromise to keep them on the path of virtue. They use persuasion, education, and individually tailored solutions that they can enforce far more effectively than the police.
So effective has mediation proven that Congress now requires villages to maintain People’s Mediation Committees, courthouses to maintain mediation offices, and wants all lawyers to become certified mediators. In 2019, mediators handled six million disputes, helping to cut the national legal bill to one-tenth of America’s.
Penal law
Penal law plays a minor role. The judicial process – originally designed to protect the State from the people – remains a work in progress.
As in France, magistrates are regarded as neutral truth-seekers who interrogate suspects, examine evidence, hear testimony, render verdicts, and determine guilt and innocence pre-trial.
Wealthy Shanghai provides defense lawyers for all criminal defendants but they are mandatory only for juveniles, the disabled, and those facing life imprisonment or death. If evidence for conviction is insufficient, magistrates suggest that the procurate either reduce the charges or investigate further. Since most casework involves paper depositions, the Western custom of cross-examining witnesses under oath before a judge is uncommon.
While American defendants lose their Fifth Amendment rights against self-incrimination if they testify, Chinese defendants may say whatever they wish in their defense – or refuse to be cross-examined – without prejudice. If the investigating magistrate decides that the defendant is guilty, the case goes to a sentencing hearing and, even if a defendant confesses and wishes to end the matter, the magistrate must hold an open hearing and ask the defendant to confirm his confession publicly.
The Courts
Though lawyers’ reputations in Chinese society have always been poor, the profession was boosted in 2012 when Li Keqiang, an expert on English common law, became Premier, and the Supreme Court’s internship program began attracting top students. Then President Xi suggested establishing independent judicial committees with non-Party members to select judges based on merit and professional track record and, by 2019, every province had an independent judicial committee to minimize local government interference, establish and oversee judges and prosecutors’ work, and punish professional misconduct. Shanghai’s committee expelled a High Court prosecutor, two sub-Prosecutors, the Vice President of the Provincial Supreme Court, and a senior circuit court judge. National appeals courts now re-hear cases, overturn wrongful convictions, order restitution, and require lower courts to study their reversals.
The Supreme People’s Court’s website, with six billion visits, offers online courses on every element of the law, invites criticism of new regulations, and offers an AI interface to its six-hundred-thousand recorded trials. Its website invites citizens to email the Chief Justice, whose answers begin cheerily, “Hello! We received your question, and after consideration, we respond as follows…” and end with, “Thank you for your support of the work of the Supreme People’s Court!”
Where Ethics Meets Law
The ethical is always more robust than the legal. Over time, it is the legal that should converge to the ethical, never the reverse. Laws come and go but ethics remain. Sextus Empiricus, 200 AD.
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The Party sets the balance between the ethical and the legal and, since judges ultimately answer to the Party explained Chief Justice Xiao Yang, “The power of the courts to adjudicate independently doesn’t mean independence from the Party at all. On the contrary, it embodies a high degree of responsibility vis-à-vis the Party’s long term (dàtóng) program”.
Mao described the Party’s long term (dàtóng) program in 1961, “China can develop steadily, under the leadership of the working class and the Communist Party, from an agricultural into an industrial country, and from a new-democratic into a socialist and communist society, can abolish classes and realize the “great unity” (dàtóng)”. Beijing expects to begin dàtóng development in 2049, the first centenary of its founding. Needless to say, it was Confucius’ idea:
When Perfect Order, dàtóng, prevails, the world is like a home shared by all. Leaders are capable and virtuous. Everyone loves and respects their own parents and children as much as the parents and children of others. The old are cared for, adults have jobs, children are nourished and educated. There is a means of support for all those who are disabled or find themselves alone in the world. Everyone has an appropriate role to play in the family and society. Devotion to public duty leaves no place for idleness. Scheming for ill gain is unknown. Sharing displaces selfishness and materialism and no-one locks their outer doors at night. Confucius.
