Law and Politics in Modern China: Under the Law, the Law, and Above the Law

by Sharron Gu


This is an original interdisciplinary study of Chinese law, its language, and political institution. Evolving within a complex literary framework over thousands of years, Chinese language has lost its conceptual distinctiveness to its multilevel and overlapping meanings and connotations. Chinese law has become inflated with contrary rulings and exceptions. This mass of rules requires an extra-lingual (legal) authority to redefine boundaries and specify applications.

Interdependent upon the voice of a higher authority, China has inherited a legal tradition that is inseparable from and interwoven with state politics. As a tool of emperors and modern politicians alike, Chinese law has never functioned as a detached mechanism through which social negotiation, mediation, and distribution are carried and regulated. The personal preferences of politicians have always dominated legislation, which has in turn fostered a highly unregulated and authoritarian power.

This system, lacking a legal protocol to amend itself, relies upon a constant element of military intervention to initiate and secure Chinese social and political change. Both Chiang Kai-shek’s and Mao Zedong’s regimes took power with armed forces and maintained order with ruthless social repression and terrorism.

This political monopoly of the law made modern China into a society that operates not within levels of the law but rather around the law. Two extra levels of society in China float around the law: the above law and the under (out) law. The former refers to people who have sufficient influence to redefine the meaning of law and distribute individual shares of rights as they please without referring to any constitutional, legal, or moral principles. Chinese legal administration has a historic tendency to override legislation. In China, politics is law, and politicians are the legislator, jury, and judge.

Chinese under laws refer to people who are neglected or left out of the protection provided by law. In most cases, they are repressed and stripped of all civil rights because someone who is more powerful wants to acquire a larger share. Without an opportunity to make their voice heard, the only way that they can participate in social change is through armed resistance and revolution.

For thousands of years, almost every new dynasty in China has emerged through some sort of revolution. As the revolutionary outlaws crowned themselves as the new above laws, the cycle was completed and once again prepared itself to repeat. Mao Zedong came from this kind of revolution. He was the only Chinese leader who had the vision to recognise that his once revolutionary syndicate had become a privileged class (above law). Although he risked everything when he launched another revolution to amend the system, he failed to pull China away from its imbedded corruptive practice. Although he completely rewrote the law and reorganised the army to stand by it, he instantly lost control of the connotations, intended meanings, and implications of his own words within a language that has been used and abused for thousands of years.

This book follows and continues Gu’s book, The Boundaries of Meaning and the Formation of Law, by illustrating how language shapes the formation, application, and administration of law in various cultural environments.

Law and Politics in Modern China is an important book for those interested in Chinese history, culture, law, and politics. It also provides refreshing insights about the way that law continues to function after its language matures and creates contradictions and loopholes within its system of rules––one of the most important issues facing Western legal administration in the immediate future.


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