Skip to main content

"Seeking truth from facts", ideological formulas and Party/state law in China

Coat of Arms of Cologne

I have just returned from the 10th Annual Conference of the European China Law Studies AssociationThis year, the conference theme was 'New Perspectives on the Development of Law in China'. 

At the conference, I presented a paper entitled "Seeking truth from facts in Party discipline 'legislation'" The paper can be downloaded from Google Drive, or from SSRN The abstract follows below.  I would welcome comments and suggestions from my readers. 

"Seeking truth from facts in Party discipline legislation"

The separation between concepts and contexts in Western studies of Chinese law, the detachment of legal and ideological concepts from the variables that determine their meaning has shaped a tacit consensus whereby ideological formulations as “Seeking truth from facts” are void of any meaning, mere declarations of intent, or make ceremonial references to an ideology which is monolithic and unchanging. Else, these formulations have been regarded as concepts that exist in the field of politics, and sort very limited effects on the law. The hypothesis that the law may still be shaped by existing ideological formulations more than by legal concepts is almost never entertained. Therefore, most legal analyses have focussed on much more familiar legal concepts and principles – as justice, constitutionalism and others. These legal principles have been deemed powerful enough to influence domains beyond the law, impacting and perhaps reshaping the political landscape. Yet, even these seemingly familiar legal concepts have been analyzed as if they existed in a contextual void, separate from ideological, historical and cultural influences. Few efforts have been made to understand the their meaning. Alternatively, the meaning that has been bestowed upon them is not necessarily the meaning shared by those groups and actors who are directly involved in processes of law-making, interpretation and enforcement. 

This paper does not intend to provide an exegesis of law/ideology in the PRC – exegeses are continuously made and remade by political leaders, legal/political commentators, judges and law enforcement officers, and are accessible to all those willing to “impartially listen” to the political/legal field. Instead, it tries to provide an empirical illustration of one of the possible methods we may employ to disentangle the nexus between ideology and law, understand their respective weight, and the actual role ideological and legal principles and concepts play in driving change within the political-legal system. If it is accepted that law has an ideological basis any attempt to understand law in the People's Republic of China will be conditional upon placing legal concepts against their most appropriate backdrop – the ideology of the Chinese Communist Party.

Comments

Popular posts from this blog

Internship Opportunities at the Foundation for Law and International Affairs

I am delighted to share a call for internship issued by the Foundation for Law and International Affairs, an organization I am a proud member of.



FLIA Internship Opportunity

We are looking for interns from all over the world.

Who we are and what we do
FLIA is an independent nonprofit organization established in Washington, DC in 2015. As an educational and consultative think tank, FLIA is devoted to promoting global communication, cooperation, and education in the field of law and international affairs. The areas on which FLIA focuses include comparative law and culture, international crime and judicial assistance, courts and tribunals, social responsibility and sustainable development, global economics and world trade, international relations and multilateral diplomacy, global security and governance, and human rights. FLIA conducts various programs such as FLIA Conference, FLIA Dialogue, FLIA Insight, FLIA Youth, FLIA Publication, and FLIA Blog. 
Why be a FLIA intern
If you are seeking to…

A Question From Douglas Elmauer

This post has been written in response to a question Douglas Elmauer (Escola de Direito de São Paulo, Brazil) asked following the Rountable on The Implications of the 19th Communist Party Congress.
To what extent does Chinese openness to the global capitalist market help in the process of democratization and in strengthening the "rule of law" that provides legal security for foreign investors and companies? Perhaps the progressive economic opening may one day irritate politics to the point of a constitutional rupture in the future.

Dear Douglas,
thanks for this very thought-provoking question. A conventional response would rely on either of three contrasting approaches to the free market as an agent of democratization:
A first approach would confirm this nexus, and then proceed to look for the most appropriate locus of irritation in China’s political system, in the hope a constitutional rupture may lead to democratization and to stronger guarantees for multinational corporations…

UN Draft Guidelines on Human Rights and the Environment - Suggested Revisions

On October 10, 2017, Professor John Knox, the Special Rapporteur on Human Rights and the Environment released a newsletter where  comments on the Draft Guidelines on Human Rights and the Environment were solicited
I was honored to produce and submit a commentary together with Professor Larry Catà Backer, under the auspices of the Coalition for Peace and Ethics. The executive summary of a much longer commentary on the Draft Guidelines on Human Rights and the Environment, and a table of our suggested revisions to the Draft Guidelines are reproduced below.

Executive Summary
The Draft Guidelines on Human Rights and the Environment are based on articles 4, 5, and 7 of Resolution 31/8, and articles 5, 6, and 7 of Resolution 34/20 (Human Rights and the Environment). They summarize the basic human rights obligations of States on environmental matters.
The adoption of the Draft Guidelines on Human Rights and the Environment will provide an important opportunity to seek to advance the conceptio…