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I have just returned from the 10th Annual Conference of the European China Law Studies Association. This 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.